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2007 Supreme(Cal) 833
High Court of Judicature at Calcutta
PRANAB KUMAR CHATTOPADHYAY & KALIDAS MUKHERJCE
Minto Ranjan Poddar
Versus
South Dum Dum Municipality
M.A.T. Appeal Nos. 2402 of 2007, 2402 of 2007, C.A.N. Appeal Nos. 5818 of 2007, 5818 of 2007
Decided On : 22-11-2007
For the Appearing Parties:Amitava Mitra, Bharati Mutsuddi, Champak Ghosh, Mainak Bose, Paritosh Sinha, Pratap Chatterji, Samrat Sen, Advocates.
A municipality cannot demolish a property without following the proper procedure and without giving the owner an opportunity to be heard.
Headnote:
MUNICIPAL LAW - BUILDING REGULATIONS - DEMOLITION OF ILLEGAL CONSTRUCTION - VALIDITY OF MUNICIPAL ORDER - JURISDICTION OF COURT - SUPPRESSION OF FACTS - WEST BENGAL MUNICIPAL ACT, 1993 - SECTIONS 14, 217, 218, 51A.
Fact of the Case:
The appellant challenged the decision of the South Dum Dum Municipality to demolish an allegedly illegally constructed area on his property. The municipality's decision was based on the appellant's alleged suppression of material facts regarding a pending title suit and a status quo order passed by the Calcutta High Court.
Finding of the Court:
The court found that the appellant did not suppress any material facts and that the municipality's decision was not based on valid grounds. The court also found that the municipality did not comply with the requirements of the West Bengal Municipal Act, 1993, in passing its decision.
Issues: 1. Whether the appellant suppressed material facts in his application to the municipality. 2. Whether the municipality's decision to demolish the appellant's property was valid. 3. Whether the municipality complied with the requirements of the West Bengal Municipal Act, 1993, in passing its decision.
Ratio Decidendi: The court held that the appellant did not suppress any material facts and that the municipality's decision was not based on valid grounds. The court also found that the municipality did not comply with the requirements of the West Bengal Municipal Act, 1993, in passing its decision. The court relied on the following principles of law: (i) A person cannot be held guilty of suppressing material facts if he was not aware of those facts. (ii) A municipality cannot demolish a property without following the proper procedure and without giving the owner an opportunity to be heard. (iii) A municipality's decision must be based on valid grounds and cannot be arbitrary or capricious.
Final Decision: The court allowed the appeal and set aside the order of the learned Single Judge. The court also directed the municipality to refund the sum of Rs. 30,000/- deposited by the appellant as probable costs of demolition.
PRANAB KUMAR CHATTOPADHYAY, J.
(1) THE instant appeal has been preferred at the instance of the writ petitioner assailing the order dated 11th May, 2007 passed by the learned Single Judge in the writ petition bearing W. P. No. 8898 (W)of 2007 whereby and where under the said learned Single Judge dismissed the writ petition. In connection with the aforesaid appeal, an application for stay has also been filed on behalf of the appellant. We have heard the learned Counsel of the respective parties in connection with the aforesaid appeal as well as the stay application.
(2) THE present appeal arises out of the writ petition which was filed challenging the decision of the South Dum Dum Municipality as communicated by the Executive Officer of the said municipality by the written communication dated 23rd April, 2007. By the aforesaid written communication dated 23rd April, 2007, the appellant herein was asked to demolish the alleged illegally constructed area mentioned in the said written communication by the Executive officer.
(3) FROM the records we find that on the earlier occasion the appellant herein filed another writ petition bearing W. P. No. 26303 (W) of 2006 claiming various reliefs which was finally disposed of by Soumitra Pal, J. on 3rd January, 2007 as hereunder:
"since I find that the issue is pending before the authorities of South Dum dum Municipality for more than a year, considering the facts and circumstances of the case and perusing the materials on record, the writ petition is disposed of by directing the Chairman and Board of Councillors, south Dum Dum Municipality, the respondent No. 2 to consider and dispose of the representation dated 9th November, 2005 filed by the petitioner after giving an opportunity of hearing to the petitioner and the respondent No.
4 and, thereafter, shall pass a reasoned order which shall be communicated to them. "
(4) PURSUANT to the aforesaid direction of this Honble Court, parties were heard on 28th February, 2007 and the Executive Officer, South Dum Dum municipality by the written communication dated 23rd April, 2007 communicated the following decision of the Municipality:
"under the above circumstances, the Board of Councillor of this municipality, in compliance with the solemn order dated 03.01.2007 passed by the Honble Justice Mr. Soumitra Pal of the Calcutta High Court in disposing of W.P. No. 26303 (W) of 2006 for the petition dated 09.11.2006: i) In exercise of power conferred to it hereby cancels mutation of the said building granted to you on 22.09.1999 and orders the restoration of the name of the original assesses in the municipal records i.e. the name of mr. Dilip Kumar Saha. ii) In exercise of powers vested in section 217 of the West Bengal Municipal act, 1993, do hereby revoke the approval accorded to the building plan vide No. 206 date 08.06.2004 for construction of 3rd floor over the 3-storied existing building and the construction made according to the said plan be deemed to have been made without sanction. iii) In exercise of power vested in rule 32 (i), (2) of the West Bengal Municipal (Building) Rules, 2007 read with section 218 sub-section i (a) and (ii) of the West Bengal Municipal Act, 1993 hereby order that construction deemed to have been made without sanction, be demolished. As such in pursuance of the above order you are hereby called upon to demolish the illegally constructed area mentioned above, by you within fifteen days of the receipt of this letter, failing which the said illegal construction will be demolished by this municipality and the costs will be recovered from you. "
(5) CHALLENGING the aforesaid decision, appellant herein filed the writ petition which was finally disposed of by the order under appeal whereby and whereunder the learned Single Judge dismissed the writ petition on the ground of suppression of the facts regarding pendency of the Title Suit No. 90 of 2002 and the letter dated 29th Becember, 1997 from the said learne
