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Judgment
This writ application was filed alleging unauthorized construction by the respondent nos. 5 to 7 for not obtaining approved building sanctioned plan by
the Board of Councillors of Diamond Habour Municipality. The only allegation of the learned Advocate for the petitioners was that the Chairman did
not have any authority to sign the sanctioned building plan and it was the Board of Councillors which was authorized under the law to accord such
sanction.
When the matter was taken up for hearing on July 25, 2018, the respondent nos. 5 to 7 were directed to file a comprehensive Affidavit in Opposition
dealing with the aforesaid averments of the petitioners. Today, none appeared on behalf of the respondent nos. 5 to 7 when the matter was called on.
On the last occasion, the concerned Municipality was directed to produce the original records in order to show that the building plan was sanctioned as
per law.
Today, Mr. S.P. Purkait, learned Advocate appearing on behalf of the Diamond Habour Municipality has appeared with all the original records. Mr.
Purkait has produced the original Register documenting sanctioned site plan and building plan, which categorically shows that the site plan and building
plan were duly sanctioned.
In support of such contention, he has also produced communication from the Chairman of the concerned Muncipality to Smt. Uma Khamaru regarding
sanction of the site plan as also sanction of the building plan. The original sanctioned plan shows that the recommendation for sanction was given by
the Sub-Assistant Engineer and thereafter sanction was accorded by the Chairman of Diamond Habour Municipality on September 19, 2011. The fact
of sanction has been entered in the Register maintained by the Municipality. The communication to Smt. Uma Khamaru from the Chairman in this
regard has also been produced before this Court. Behind the sanctioned plan, there is a remark by the Municipality which states “deviationâ€
means demolition.
I am satisfied from the original records that the site plan and the building sanctioned plan are available along with the warning to the proposed builder
that if there was any deviation the consequences thereof in the mode of demolition would follow. Coming to the question of the authority of the
Chairman to approve/sanction building plan, Mr. Purkait draws my attention to a provision of the West Bengal Municipal Act, 1993, which provides
that the Board of Councillors may by resolution delegatee, expert to the Chairman. Mr. Purkait from the very inception submits that the Chairman of
the concerned Municipality has been functioning as a delegatee of the Board of Councillors on the basis of a resolution. According to him, the actions
of the Chairman to this writ application were legal and valid.
Under such circumstances, the Chairman of the Diamond Harbour Municipality is directed to file a short affidavit incorporating the above facts along
with the supporting documents in order to show that the Chairman had the power under the law to accord sanction. The question of non existence of
the approved building plan and/or deviation from the building plan is not require to be answered at this stage, in as much as, the respondent nos. 5 to 7
are in possession of the sanctioned site plan and sanctioned building plan as also of a reasoned order passed by the Chairman of the Municipality in
question pursuant to an order passed by this Court earlier which clarifies that there was a clear spaces of 1.5 meter from the existing boundary wall as
per approved plan and the construction which had started before approval of the building was stopped with the interference of the Municipal
authorities and, thereafter, started only when the approved sanctioned plan was given. With the above observations, this writ application stands
adjourned for a period of two weeks from date in order to enable the Chairman of Diamond Harbour Municipality to file a short affidavit.