Back
High Court Of Calcutta
Before Mr. Justice Jyotirmay Bhattacharya
MADAN MOHON PAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 15840 (W) Of 2006
Decided On : 07/19/2006
MUNICIPAL LAW - APPROVAL OF SITE PLAN - BUILDING PLAN - DEMOLITION NOTICE - Chairman alone is not competent to pass an order of demolition - Approval of site plan is required at every stage of sanction of the plan either for construction or for reconstruction of the building - Discretionary power of the Board of Councillors to pass an order of demolition or to pass an order of retention and/or alteration in suitable circumstances - Chairman-in-Council can exercise the power of demolition only for reasons to be recorded in writing and after forming an opinion regarding the necessity of taking immediate action.
Fact of the Case:
The petitioners, owners of a holding in Katwa Municipality, submitted a building plan for the construction of an additional storey on their existing ground floor construction. The Municipal authority returned the plan for removal of defects, which were rectified and resubmitted. The Chairman of the Municipality rejected the petitioners' prayer for approval of the site plan and sanction to the building plan due to various defects. The petitioners challenged the order and the demolition notice issued by the Municipality.
Finding of the Court:
The court held that the Municipal authority did not commit any illegality in rejecting the petitioners' prayer for grant of sanction to the building plan without approval of the site plan. The court also held that the Chairman alone is not competent to pass any order of demolition under Section 218(1) or (5) of the West Bengal Municipal Act, 1993.
Issues: 1. Whether the Municipal authority was justified in rejecting the petitioners' prayer for grant of sanction to the building plan without approval of the site plan? 2. Whether the Chairman alone was competent to pass an order of demolition under Section 218(1) or (5) of the West Bengal Municipal Act, 1993?
Ratio Decidendi: 1. Rule 5 of the West Bengal (Building) Rules, 1996 provides for submission of site plan either before or simultaneously with the building plan for approval by the municipal authority. 2. Sanction to the building plan cannot be granted unless the site plan is approved. 3. The Chairman alone is not competent to pass any order of demolition under Section 218(1) or (5) of the West Bengal Municipal Act, 1993. 4. Section 218(1) authorizes the Board of Councillors to pass an order of demolition after giving a reasonable opportunity of hearing to the owner of the building. 5. Section 218(5) provides that the Chairman-in-Council may, for reasons to be recorded in writing, cause demolition of a building or work being carried out in contravention of the Act.
Final Decision: The court quashed the impugned order rejecting the petitioners' prayer for approval of the site plan and sanction to the building plan, as well as the demolition notice issued by the Municipality. The court directed the petitioners to submit a fresh site plan and building plan within a month, to be considered by the Municipal authority in accordance with law.
( 1 ) THE judgment of the Court was as follows the petitioners who are the owners of holding No. 29/7/n/a in Ward no. 4 at Ghutkia under Katwa Municipality comprising of Plot Nos. 283, 284 and 299 constructed a single storied building in the said holding as per the sanctioned building pian being No. 14e dated 4th May, 1990
( 2 ) IT appears from the sanctioned plan being Annexure 'p-1' to this writ petition that sanction was granted for construction of building on two plots of land, viz. , Plot Nos. 283 and 299. Admittedly, site plan was also approved by the Municipal authority at the time of grant of such sanction to the said building plan.
( 3 ) TROUBLE started when the petitioners submitted a building plan together with the site plan in 2004 / 2005 for sanction and / or approval thereof in respect of the proposed construction of one additional storey on the existing ground floor construction of the said premises.
( 4 ) THE site plan and/or building plan which were submitted by the petitioners were returned to the petitioners for re-submission after removal of the notified defects therein.
( 5 ) THE petitioners re-submitted the site plan and/or building plan to the Municipal authority after removal of the defects but the Municipal authority found that the same was not in order and as such, the said site plan and the building plan were again returned to the petitioners.
( 6 ) THE petitioners again re-submitted the same after making necessary corrections therein on 27. 02. 2006 by registered post with A/d.
( 7 ) SINCE the petitioners' prayer for grant of approval to the site plan and/or sanction to building plan as aforesaid were kept unattended by the municipal authority, the petitioners submitted a representation before the municipal authority for early consideration of the petitioners' prayer for approval of the site plan and/or grant of sanction to building plan at an early date.
( 8 ) THE Chairman of the said Municipality, after considering the documents produced before him, by his order dated 21. 6. 2006 rejected the petitioners' prayer for grant of approval and/or sanction of the site plan and/or building plan, as aforesaid, for various defects therein, such as -
(i) site plan was not drawn according to the prescribed scale, (ii) the requisite certificate of the licensed building surveyor was not given along with the application for the grant of sanction and (iii) the defects which were notified by the Katwa Municipality in its earlier letter were not removed.
( 9 ) THE Municipal authority has also issued a notice for removal of the construction which the petitioners raised on the roof of the existing ground floor construction without any sanction plan.
( 10 ) THE petitioners have challenged the propriety of the order dated 21st May, 2006 passed by the Chairman of the said Municipality being annexure 'p-13' to the writ petition as well as the legality and/or the validity of the notice of demolition issued by the Chairman of the Katwa Municipality on 3rd July, 2006 being Annexure 'p-15' to the supplementary affidavit in this writ petition.
( 11 ) MR. Dey, learned Senior Advocate, appearing for the petitioners, submitted that since the site plan was approved by the Municipal authority earlier at the time of grant of sanction to the building plan in respect of the ground floor construction of the said premises, the petitioners are not required to submit a site plan once again for obtaining sanction to the building plan for the proposed construction on the 1st floor of the said premises. Mr. Dey further submitted that the notified defects were all removed from the plan, which was re-submitted on 27. 02. 2006.
( 12 ) ACCORDINGLY, Mr. Dey submitted that the order which was passed by the Chairman of the said Municipality on 21st June, 2006 being annexure 'p-13' to this writ petition, cannot be sustained.
( 13 ) MR. Dey further submitted that the order of demolition which was p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
