Khagendranath Sen vs State of West Bengal and Others

Jayanta Kumar Biswas, J.—The petitioner in this WP under art. 226 of the Constitution of India dated April 11, 2012 is questioning an order of the Board of Councillors of Kamarhati Municipality dated February 24, 2012 (WP p. 80) passed under s. 218 of the West Bengal Municipal Act, 1993. The relevant part of the impugned order is quoted below:-

Then the house decided that since Sri. Khagendra Nath Sen deviated from sanctioned building plan as mentioned above so u/s 218 of W.B.M. Act, 1993 illegal portion should be demolished by Sri Khagendranath Sen as deviated from sanctioned building plan within 15 days from the date of serve of the decision as follows:

a) 3''0 wided cantilever at ground at southern side.

b) 1''3'' wide ext. cantilever at stair case at eastern side

c) 2''9'' wide ext. cantilever at ground floor roof at northern side.

Mr. Ghosh appearing for the petitioner has argued as follows. Against a previous demolition order the petitioner filed an appeal that the Civil Court allowed by an order dated July 27, 2010. The Board filed an art. 227 application that was disposed of by an order dated April 4, 2011. This Court did not interfere with the order of the Civil Court. Hence the Board could not pass a fresh s. 218 order.

By its order dated July 27, 2010 the Civil Court allowed the appeal on the grounds that in its resolution the Board did not state the basis on which it held that the constructions were unauthorised. By the order dated April 4, 2011 this Court disposed of the art. 227 application saying that nothing in the order would prevent the Board from proceeding against the petitioner according to law. Accordingly, the Board proceeded afresh under s. 218 of the Act.

Against the s. 218 order of the Board dated February 24, 2012 the petitioner had a statutory remedy of appeal. He decided to file this WP without first exhausting the remedy of appeal alleging that the Board acted without jurisdiction. There is no merit in this. This Court permitted the Board to proceed afresh with the unauthorised constructions issue. The s. 218 order was passed after hearing the parties and on the basis of the inspection report.

It is important to note that the petitioner has not disputed that the constructions specified in the s. 218 order were made by him in deviation of the plan on the basis whereof he had been granted sanction to erect the building. Since the constructions for whose demolition the Board of passed the s. 218 order are admittedly unauthorised, they just cannot remain; for unauthorised constructions are inherently dangerous and bound to endanger human lives. For these reasons, I dismiss the WP. Nothing herein shall prevent the petitioner from asking the authorities to permit him to erect the constructions according to the plan, after demolition of the unauthorised constructions and intimation thereof to the Board. No costs. Certified xerox.