An unauthorized construction is liable to be demolished, and the municipal authorities are not bound to regularize the same.

JUDGMENT :

SHAMPA SARKAR, J.

1. This revisional application has been filed challenging the order dated June 30, 2022 passed by the learned Civil Judge (Junior Division), Bidhannagar in Municipal Appeal No. 2 of 2018.

2. The petitioner had suffered an order of demolition, in a proceeding initiated by the Baranagar Municipality. By the order impugned dated June 30, 2022, the learned Civil Judge (Junior division) Bidhannagar upheld the order of the demolition dated June 11, 2018, passed by the Municipality and directed implementation of the same, within 30 days from the date of the order.

3. The revisional application assails the order of the learned court below on the following grounds:

(a) The order of demolition was without jurisdiction. The Chairman of the municipality was not empowered under the law to initiate proceedings and pass the order. Such aspect was not considered by the learned court.

(b) Only the Board of Councillors could adjudicate the issue of unauthorized construction and pass necessary orders, which was not taken note of by the learned court.

(c) The application for filing additional evidence was rejected without application of mind.

(d) The petitioner was not given adequate opportunity to represent the case before the municipality. Violation of the principles of natural justice was a good ground for setting aside the demolition order.

(e) The municipal authorities failed to consider the building sanction plan dated November 3, 2010.

(f) The genuineness of the report of the Assistant Engineer of the municipality, ought to have been adjudicated upon.

(g) The order of demolition was vague and unimplementable as the measurements and the location of the unauthorized construction had not be specifically delineated.

(h) The dispute with regard to the construction on the northern side, could not be raised by the opposite party No. 2 as the said opposite party No. 2 was not the adjacent owner of the property on its northern side.

(i) The order of demolition was passed without proper inspection and the municipality had arbitrarily directed demolition on the basis of surmise and conjecture.

4. Mr. Chatterjee, learned advocate appearing on behalf of the petitioner submits that the order of demolition deserved to be set aside on the ground of lack of jurisdiction, vagueness and denial of adequate opportunity of hearing to the petitioner.

5. Reliance was placed on the decision of the Division Bench of this court in the matter of Avijit Kower and Others vs. Subir Konar @ Subir Kower and Others decided in MAT No. 567 of 2023. According to Mr. Chatterjee, the said decision applied in the facts of the present case as the order of demolition was passed by the Chairman. The Chairman did not have any authority to issue a demolition order under Section 218 of the West Bengal Municipal Act, 1993, (hereinafter referred to as said Act). Only the Board of Councillors of the Municipality could initiate a proceeding for demolition against the petitioner and pass an order.

6. Further reliance was placed by Mr. Chatterjee on the decision of this Court in Madan Mohan Pal and Another vs State of West Bengal and Others, 2006 SCC Online Cal. 377. It was held that Section 218(1) of the said Act authorized the Board of Councillors to pass an order of demolition and only the Board of Councillors, upon giving a reasonable opportunity of hearing to the owner of the building and upon being satisfied that the erection of the building was in contravention with the provisions of the law, could direct demolition of the building. The Chairman alone, could not pass any order. Reliance was also placed on the decision of Priya Brata Maity vs. State of West Bengal, AIR 1999 Cal. 32. A Division Bench had held that the Chairman could not pass a demolition order of any construction, even if the construction was illegal.

7. It was further urged that the order of demolition was not sustainable in law as the municipal authorities had themselves regularized a portion of the const