Pally Kayan Samity & Ors vs State Of West Bengal & Ors.

Affidavit of service filed in Court today be retained with the record.

Under challenge in this appeal is the order dated 1st March, 2021 passed by the Hon'ble Single Bench in the writ petition, being WPA 23443 of 2019.

By the said impugned order the Hon'ble Single Bench permitted the Respondents/Bhatpara Municipality to take steps for removal of the alleged

unauthorised encroachment by way of a construction made by the present appellant over a piece of land which the Hon'ble Single Bench held to be in

the nature of a public road.

Mr. Biswas, learned Counsel appearing for the appellants assisted by Mr. Khan, learned Advocate, takes the point of lack of jurisdiction on the part of

the Respondents/Bhatpara Municipality in failing to act in terms of the applicable section of the West Bengal Municipal Act, 1993 (for short referred

to as the Municipal Act) and, particularly Section 218 thereof.

Relying on the statutory provision as above, it is submitted by the appellants that an order of demolition as contemplated to be exercised under Section

218 (supra) must flow from the satisfaction of the Board of Councillors (BOC) of the concerned Municipality. Needless to add, in the event the BOC

is substituted by any other body such as a Board of Administrators (BOA) to meet a contingent situation, Section 218 (supra) would apply mutatis

mutandis to the exercise of plenary powers by the BOA in place and in stead of the BOC.

Next, taking this Court to the stay application connected to the appeal, being CAN 1 of 2021, Mr. Biswas submits that the notice of hearing under

Section 218 of the Municipal Act was issued by the Executive Officer (EO) of the Bhatpara Municipality on the 26th of April, 2019. Further referring

to the Minutes of the Meeting (MOM) dated 27th May, 2019, the appellants submit that the meeting was in consequence of the hearing dated 26th

April, 2019 and such meeting was convened by the Executive Officer in the presence of the Engineer and Surveyor and, is not a decision of the BOC/

BOA as required by Section 218(supra).

It is argued that the MOM dated 27th May, 2019 therefore fails to disclose full and statutory compliance of the provisions of Section 218(supra) in as

much as there is no whisper of such decision tracing its origin from the BOC or BOA, as the case may be.

The appellants submit that any drastic action flowing from an order which lacks jurisdictional firmness would utterly prejudice the petitioner. it is

submitted that the Hon'ble Single Bench unfortunately relied upon a report of the Respondents/Bhatpara Municipality which in turn purported to rely

upon a resolution of the BOC purportedly designed to conclude the demolition proceedings at the earliest.

Mr. Biswas denies that neither the report nor the purported decision of the BOC to conclude the demolition proceedings was handed over to the

appellants either separately or, at the hearing. In any view of the matter, it is argued, its MOM dated 27th May, 2019 does not conform to due process

required to be adopted by the Respondents/Municipality qua the property impugned.

Mr. Mukherjee, learned Counsel appearing for the Respondents/ Bhatpara Municipality, raises the earnest submission that Section 218(3) (supra)

provides for an appeal against any order of the BOC. It is, therefore, trite that this appeal is not maintainable. Mr. Mukherjee adds the usual

submission that all steps were taken by the Respondents/ Bhatpara Municipality in compliance with the provisions of law.

On behalf of the Private Respondents to the appeal, Mr. Sunny Nandy, learned Advocate, appears and submits that there has been litigation in the

past inter se the parties on the property in issue and, involving the Respondents/Bhatpara Municipality.

The State is represented by Mr. Himadri Sekhar Chakraborty, learned counsel with Mr. Meena, learned Advocate.

Having heard the parties and considering the materials placed at this stage, this Court is satisfied that the process of demolition instituted on the basis

of the MOM dated 27th May, 2019 is jurisidctionally assailable. In view of the uncertain and flawed jurisdictional foundation connected to the

demolition as sought to be instituted on the basis of the decision in the MOM dated 27th May, 2019, this Court is also of the opinion that the argument

to file an appeal as raised by the learned Counsel for the Respondents/Bhatpara Municipality stands to be otiose for the present.

In view of the discussion as above, this Court is prima facie satisfied that the appellants deserve an interim order in terms of Prayer (d) of the writ

petition.

In view of the interim order passed above, there shall be consequentially an order of stay of operation of the order impugned of the Hon'ble Single

Bench dated 1 st March, 2021.

Let the interim orders initially remain operative for a period of eight weeks from this date.

During the period of eight weeks of the subsistence of the interim order as granted above, it shall be open to the parties to exchange their affidavits to

the application connected to this appeal and numbered as IA No. CAN 1 of 2021.

Liberty to mention strictly upon notice to each other.

Parties to act on a server copy of this order downloaded from the official website of this Court.