Ila Rani Dey vs State Of West Bengal & Ors.

Respondents have been duly served way back in the dying days of 2014. We are now in 2018. Let the affidavit of service be kept on record. I hold

that the parties have been duly served. None appears for the respondents despite service. While it is usual where respondents do not appear despite

service, the matter is not disposed of without service of notice in terms of Rule 26, the facts of this case require the writ Court to take a different view

of the circumstances.

The writ petitioner wanted to construct a second story on the premises which admittedly belonged to the writ petitioner. Despite there being provision

for sanction to be accorded by default where the Board of Councillors did not decide an application for sanction of building plan within sixty days from

making of an application or submission of information required by the Board of Councillors under Section 207 of the West Bengal Municipal Act, 1993,

in the instant case the writ petitioner had to approach the writ Court time and again.

Ultimately by an order dated November 3, 2014 passed in W.P. No. 15345(W) of 2012, a co-ordinate Bench of this Court directed the competent

authority of the Municipality to take a decision on the application for sanction of building plan within a period of two months from the date of

submitting the documents appearing at pages ‘15’ and ‘16’ of that writ petition. From the documents annexed to pages ‘67’ and

‘68’ it appears that the writ petitioner has duly submitted the documents. Despite the aforesaid by an order dated December 5, 2014 issued by

the Chairman of the concerned Municipality (the third respondent) instead of the Board of Councillors (fourth respondent) the application for sanction

of the building plan by the writ petitioner was rejected. The grounds given for such rejection were as follows:

“(1) The road shown in the southern side in G+1 Building in the plan is not allowable for G+2 building as per provision of West Bengal Municipal

Act, 1993. The road should be minimum 8 Ft. (2.40 Mtr.) but in this case in the plan road is shown below 6 Ft.

(2) When the plan of Illarani De was submitted on 22.01.2011road of the Municipality which she shown in the site plan submitted on 11.11.2014 was

not developed which is yet to be developed.

(3) Moreover substitute road shown in the northern Side of thehouse in the site plan is a connected road of two Bus Stands which will be used for

movement of the heavy vehicles not for the pedestrians.

(4) As per sub-section C of Section 210 of the West BengalMunicipal Act, 1993 the applicant with Building plan does not contain the necessary

particulars and has not been prepared in the manner as required under the Rules and the Regulations made in this behalf the sanction of the building

plan of 2nd floor may be refused. Hence the prayer for sanctioning the plan of 2nd floor submitted by Illarani Dey is not allowed and rejected. The

instant case is thus disposed of complying with the order of the Hon’ble High Court, Calcutta.â€​

A bare perusal of the records shows that the principal objection was that the road shown in the southern side of the building plan for construction of

G+1 building was allegedly less than 8 ft. However, the sketch map submitted by the petitioner shows that this particular road is a municipal road

which connects two bus stands which the third respondent has himself admitted at clause ‘3’ of his findings to be a road which is used for

movement of heavy vehicles and it is submitted that the road of the Municipality is more than 8 ft. and at the time when the application for sanction

was being considered, the said road of the Municipality appears to have already been developed, though as on January 22, 2011 it may not have been

already developed.

Quite apart from the fact that the grounds assigned themselves are contradictory and are not what any reasonable person in similar circumstances

with ordinary prudence would have accepted for rejection of the sanctioned plan, the decision has not been taken by the Board of Councillors being

the authority within the meaning of Section 12 of the Act 22 of 1993 read with Section 210 and, therefore, on the face of it the decision is without

jurisdiction. The respondent no. 3 is not the competent authority under the Statute. It does not appear that the information given by the writ petitioner

was considered in its proper perspective. Therefore, the decision of the respondent no. 3 does not consider all the relevant materials. Even had he

being the competent authority, which he is not, the decision would have failed the test of Wednesbury reasonableness. I set the respondents ex parte

since they did not appear despite service.

Accordingly, I set aside the impugned order dated December 5, 2014 which was communicated to the writ petitioner by a letter dated December 10,

2014 as the order passed is wholly without jurisdiction by a person who is not the competent authority. I direct the respondent No. 4 to consider and

decide the question of sanction of the building plan along with the further information submitted by the writ petitioner in accordance with law and the

width of the road offered by the writ petitioner at the southern side of the building side as it now measures and after giving an adequate opportunity of

being heard to both the writ petitioner and the concerned engineer of the Municipality and take a reasoned decision in accordance with law and

communicate the same to the writ petitioner.

I make it clear that this decision should be taken afresh without being influenced by the order, which I have set aside. The entire process should be

completed within a period of one month from the date of communication of this order. The decision taken by the respondent No. 3 shall be

communicated to the writ petitioner within seven days from the date of taking the decision. In case it is found the writ petitioner has suppressed any

material fact which could be a reason to refuse the sanction of the plan under Section 210 of Act 22 of 1993 naturally the respondent No. 4 shall be

entitled to refuse sanction. I pass this order because the matter is decided without the presence of the respondents since they have been set ex parte.

The writ petition is disposed of in terms of the above. There shall be no order as to costs.