Biswajit Das vs State of West Bengal

Ashoke Kumar Dasadhikari, J.—The subject matter of challenge in this writ petition is the decision taken by the Board of Councillors in the meeting dated 30th May, 2012, pursuant to an order passed by the Hon''ble Division Bench of this Court. The allegation raised by the writ petitioners through their representation was against an unauthorised construction of septic tank and bath and privy by the tenants in the premises owned by the petitioners. Municipal authority did not take steps and, therefore, the owners filed a writ petition being W.P. 20236 (W) of 2010 and the learned Single Judge of this Court passed the following order:

In the writ petition, the petitioner has alleged that though it was pointed out in the representation dated 23rd April, 2010 made on behalf of the petitioner that the septic tank and the bath and privy constructed in the premises at Jaffarpore Road under the Barrackpore municipality, Barrackpore, North 24-Parganas are illegal, till date no steps have been taken.

Learned advocate appearing on behalf of the private respondents submits that the writ petition is not maintainable as the petitioner No. 1 is holding the power of attorney on behalf of Abhijit Mukherjee and Ratna Roy. Moreover, as the cause of action arose in the year 2005 there has been delay in filing the writ petition. Besides, it has been contended that a representation dated 16th November, 2010 was addressed to the Chairman, Barrackpore Municipality, North 24-Parganas, the respondent No. 3 to regularize the construction in question. A copy of the representations filed in Court today. Let it be kept with the record.

Learned advocate appearing on behalf of the municipality referring to the undertaking dated 23rd December, 2006 given by the private respondents to remove the construction submits that the construction was made without any prior sanction.

It is evident from the submission of the learned advocate for the municipality that the construction in question was carried out without adhering to the provisions of law. Since the matter of illegal construction has been brought to the notice of the Court, though there might be delay in filing the writ petition, the Writ Court being a Court of Equity has to pass orders.

Therefore, in view of the submissions made on behalf of the municipality as the private respondents have given an undertaking, considering the facts and circumstances of the case, the writ petition is disposed of by directing the private respondents to remove the construction in question within fifteen days from the date of communication of this order failing which the respondent No. 3 shall take appropriate steps within a month thereafter.

There will be no order as to costs.

The tenants preferred an appeal before the Appeal Court and after hearing the tenants'' appeal, the Appeal Court allowed the appeal and passed the following order:

The writ petitioners/respondents are now at liberty to file a positive grievance to the concerned Municipality on issue of the alleged unauthorized construction and in the event such a grievance is lodged to the Municipality, Municipality will proceed to decide the grievance in accordance with law upon hearing the present appellants and other parties who are interested thereto and a reasoned decision to be passed and be communicated to all parties. In the event such an application is filed by the writ petitioners/respondents to the Municipality, the entire proceeding should be completed by the concerned Municipality within three months from the date of filing such application.

Pursuant to that direction a complaint was lodged and an enquiry was held. The enquiry report was submitted to the Chairman.

After perusal of the report, the concerned Chairman referred the matter to the Board of Councillors of the municipality since the case was u/s 218 of the West Bengal Municipal Act, 1993. The Board of Councillors directed the concerned parties to appear before the Board of Councillors on 30th May, 2012. It appears from the communication dated 30th May, 2012 the complainants as well as the owners of the property and the tenants who were the appellants before this Court, appeared before the Board of Councillors who were deciding the issues.

At the time of hearing, the concerned tenants failed to submit any document in support of the alleged construction carried out in this suit property and admitted before the Board of Councillors that without any valid sanctioned plan they constructed septic tank and Privy in the house of the complainants. The house owners could not submit any document in support of such unauthorised and illegal construction. The hearing took place before the Board of Councillors giving opportunity to the respective parties to make their submissions before the authorities. Neither the tenants nor the complaints have produced any document in support of such construction wherefrom it would appear that any one of them has obtained prior sanction of such construction in the property.

After such hearing was given, the concerned Board of Councillors have declared the construction as unauthorised construction, made without any sanction and directed that the construction should be removed by the tenants within fifteen days from date of receipt of a copy of the decision failing which, Municipality will take necessary steps to demolish such illegal construction. It was further directed that the cost of such demolition would be borne by the respondents/tenants, as determined by the Municipality.

Accordingly, in compliance of the order passed by the Hon''ble Division Bench of this Court, the order was passed by the Board of Councillors.

Mr. Sadananda Ganguly is requested to appear on behalf of the State authorities who are not represented in spite of service. The office of the Learned G.P. is directed to regularise appointment of Mr. Ganguly.

The tenants/writ petitioners are aggrieved against this order.

This Court is satisfied that the unauthorised construction was made by the tenants. There is no valid sanctioned plan for such construction. Therefore, the Board of Councillors rightly decided to demolish the structures. It appears that reasonable opportunity was given to the petitioners. Thus, the writ petition filed by the tenants are of no merit.

Accordingly, the writ petition is dismissed.

There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.