The Board of Councillors of a municipality has the authority to reconsider and recall a demolition notice issued under Section 218 of the West Bengal Municipal Act, 1993, based on new information and circumstances, and such reconsideration does not constitute an exercise of appellate power.

Pranab Kumar Chattopadhyay, J.

This appeal has been preferred assailing the judgment and order dated 3rd February, 2011 passed by a learned Judge of this court whereby and whereunder the said learned Judge allowed the writ petition after setting aside the order passed by the Board of Councillors of the appellant-Municipality with regard to revocation and/or recalling of the notice dated 12th March, 2009 issued under Section 218 of the West Bengal Municipal Act, 1993.

2. Going through the records we find that the Board of Councillors of the appellant-Municipality initially going through the spot enquiry report and considering the other relevant records was satisfied about the existence of the illegal construction at the premises in question. Therefore, the aforesaid notice under Section 218 of the West Bengal Municipal Act, 1993 was served upon the concerned persons namely, the respondent Nos. 6 and 7. By the aforesaid notice, said respondent Nos. 6 and 7 were directed to show cause as to why the unauthorised construction at the premises in question would not be demolished.

3. In answer to the said notice dated 12th March, 2009, detailed representations were submitted on behalf of the aforesaid respondents and in the said representations, aforesaid respondents specifically mentioned that no construction was made in violation of the building rules. The aforesaid respondents, however, admitted that a toilet has been constructed in the covered verandah only to maintain the hygienic condition of the building and surrounding areas. The said respondents in the aforesaid representations duly explained their conduct and requested the municipal authorities to recall and/or revoke the notice issued earlier under Section 218 of the West Bengal Municipal Act, 1993.

4. Considering the aforesaid representations of the private respondents and also on examination of the relevant records and specially in order to prevent environmental pollution, construction of toilet at the premises in question was allowed to remain by the municipal authorities and the Board of Councillors in its meeting held on 30th April, 2009 ultimately, decided to revoke and/or recall the aforesaid notice issued to the private respondents under Section 218 of the West Bengal Municipal Act, 1993. It is fact that the Board of Councillors of the appellant-Municipality in its meeting held on 30th January, 2009 passed a resolution recording their satisfaction about the existence of the illegal construction at the premises in question and decided to initiate proceedings under Section 218 of the West Bengal Municipal Act, 1993.

5. Considering the language used in a portion of the resolution, learned Single Judge was misled and treated the said resolution as the decision to demolish the unauthorised portion of the building in terms of Section 218 of the West Bengal Municipal Act, 1993, which is factually not correct. Section 218(1) of the West Bengal Municipal Act, 1993 is set out hereunder:

“218. Order for demolition or alteration of buildings in certain cases. – (1) If the Board of Councillors is satisfied –

(a) that the erection of any building –

(i) has been commenced without obtaining sanction or permission under the law, or

(ii) is being carried on or has been completed otherwise than in accordance with the particulars on which such sanction or permission was based, or after such sanction or permission has been lawfully withdrawn, or

(iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf, or

(b) that any building or projection exists in violation of any condition, direction or requisition lawfully given or made under this Act or the rules or the regulations made thereunder, or

(c) that any material alternation of, or addition to, any building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or the S