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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Biswajit Basu, J.
Chanchal Kumar Das – Petitioner
Versus
The Chairperson, Board of Administrators, Rajpur Sonarpur Municipality & Others – Opposite Parties
C.O. No. 310 of 2022
Decided On : 20-04-2022
Limitation - Appeal against order of demolition - Section 218(3) of The West Bengal Municipal Act, 1993 - No period of limitation prescribed - Court held that The Limitation Act, 1963 stands excluded - Court set aside the order impugned and restored the appeal and application for stay to their original file and number
Fact of the Case:
The petitioner challenged an order of demolition passed by the Board of Councillors of a municipality. The Court below dismissed the appeal as barred by limitation but granted liberty to file a fresh appeal with a prayer for condonation of delay.
Finding of the Court:
The Court found that the appeal was filed before the appellate jurisdiction of the Court below, not original, and thus the Court below erred in holding that the appeal was preferred in the original jurisdiction of a Civil Court. The Court held that The Limitation Act, 1963 stands excluded in respect of such an appeal, and therefore, the investigation as to the reasonableness of the delay in preferring the appeal is unnecessary.
Issues: The main issue was the period of limitation in preferring an appeal under Section 218(3) of The West Bengal Municipal Act, 1993 against an order of demolition made by the Board of Councillors of a municipality.
Ratio Decidendi: The Court held that The Limitation Act, 1963 stands excluded in respect of such an appeal, and therefore, the investigation as to the reasonableness of the delay in preferring the appeal is unnecessary.
Final Decision: The Court set aside the order impugned, restored the appeal and application for stay to their original file and number, and requested the Court below to decide the appeal on merit in accordance with the law.
JUDGMENT :
Biswajit Basu, J.
1. The instant revisional application under Article 227 of the Constitution of India is arising out of an appeal under Section 218(3) of The West Bengal Municipal Act, 1993 (hereinafter referred to as the ‘said Act’ in short) and is directed against the order no. 5 dated January 21, 2022 passed by the 2nd Court of learned Civil Judge (Junior Division) at Baruipur, District- 24 Parganas (South) in the said appeal being Other Appeal No. 01 of 2022.
2. What is the period of limitation in preferring an appeal under subsection (3) of Section 218 of the said Act against an order of demolition or alteration of a building made by the Board of Councillors of a municipality under sub-section (1) thereof, is the issue falls for consideration in the present revisional application.
3. The relevant facts necessary to deal with the aforesaid issue are thus; the opposite party no. 4 filed a writ petition being W.P. No. 9041(W) of 2015 alleging that the petitioner has been carrying on unauthorized construction over the plot of land belonging to him and prayed necessary direction for demolition of the said construction.
The said writ petition was disposed of vide order dated August 17, 2016 by directing the Board of Councillors of the Rajpur-Sonarpur Municipality that in the event the said construction is found to be unauthorised, to pass necessary and consequential order under Section 218 of the said Act including the order of demolition, the petitioner by the said order was directed to maintain status quo with regard to the alleged unauthorised construction. The appeal against the said order was dismissed.
4. The said Board of Councillors, in terms of the aforesaid direction, on November 04, 2016 passed an order of demolition of the said alleged unauthorized construction. The Chairman of the said municipality under his letter bearing reference no. 1541/R.S.M./16 dated November 28, 2016 communicated the said order dated November 04, 2016 to the petitioner and directed him to demolish the said alleged unauthorized construction within seven days from the date of communication of the said order dated November 04, 2016.
The opposite party no. 4, alleging violation of the said order dated August 17, 2016 passed in said W.P. No. 9041(W) of 2015, filed an application for contempt being CPAN No. 1043 of 2017. The learned Single Judge by the order dated December 17, 2021 directed the said municipality to demolish the illegal construction of the building of the petitioner immediately.
5. The petitioner, aggrieved by the said order, preferred an appeal being MAT 1387 of 2021. In the said appeal, the petitioner alleged that the order of the Board of Councillors dated November 04, 2016 was never communicated to him. The Hon’ble Division Bench, in view of the limited scope of the said appeal refused to enter into the said question, however disposed of the said appeal by the judgment and order dated December 24, 2021, inter alia, granting liberty to the petitioner to challenge the order of demolition that had been passed by the Board of Councillors, as on November 28, 2016 i.e. communication of the Chairman of the said municipality about the order of demolition passed by the said Board of Councillors on November 04, 2016.
6. The petitioner, thereafter, challenging the said communication dated November 28, 2016 of the Chairman of the said municipality filed the said appeal. The opposite party no. 4 in the said appeal filed an application praying rejection of the said appeal and the application for stay thereto on the ground that the appeal is barred by limitation. The Court below, by the order impugned, has allowed the said application thereby has dismissed the said appeal as barred by limitation but granted liberty to the petitioner to file a fresh appeal with a prayer for condonation of delay.
7. Mr. Partha Pratim Roy, learned advocate for the petitioner submits that the Court below has committed a gross error of law in fixing a period of
AI
The Limitation Act, 1963 stands excluded in respect of an appeal under Section 218(3) of The West Bengal Municipal Act, 1993 against an order of demolition made by the Board of Councillors of a munic....
An order affecting a person's rights is effective only when communicated, starting the limitation period from that date, not the date of the order itself.
A party must fully disclose related ongoing proceedings in the court to avoid misleading the tribunal, particularly when fraud is alleged.
The court upheld the importance of presenting fraud allegations in the correct procedural context, rejecting a petitioner's late claims of fraud due to prior document legitimacy issues and suppressio....
An unauthorized construction is liable to be demolished, and the municipal authorities are not bound to regularize the same.
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