D/L v. Sri Sanjit Ghoshal & Ors.

The petitioner has submitted that over and above the unauthorized 5th and 6th floor, a 7th floor has also been constructed. Under such circumstances, the instant writ petition is disposed of by directing the Bally Municipality through its authorized representative i.e. the Administrator of the Bally Municipality prompt necessary steps for demolition of such unauthorized construction, strictly accordance with law, at the earliest, but positively within a period of ninety days from the date of communication of a copy of this order. The aforesaid respondent shall afford an opportunity of hearing to the petitioner as well as the person(s) responsible making construction prior to taking a decision in the matter. The Officer-in-charge of the Bally Police Station is directed to maintain strict vigil over the property to ensure that no further construction is being made in the said 3 premises till a decision is taken in the matter by the municipality.

The Administrator of the municipality is directed to communicate the reasoned order to all the parties immediately after taking a decision in the matter.” Being aggrieved, the private respondents have come up in appeal before us. We have heard learned counsel for the parties. The order impugned is ambiguous to the extent that it may be interpreted as a direction on the Municipality to immediately demolish certain portions of the impugned construction even giving hearing private respondents/appellants. That obviously cannot be done. Since the writ petitioner has made a complaint of unauthorized construction by the private respondents, the appropriate order would be to set in motion the procedure and mechanism contemplated in Section 218 of the West Bengal Municipal Act, 1993. Accordingly, we direct the appropriate authority (we are told presently there is an administrator who is in-charge and the Board is non- functional) of the Bally Municipality to strictly follow the provisions of Section 218 of the West Bengal Municipal Act 1993, in disposing of the complaint of the writ petitioner as regards unauthorized construction having been made by the private respondents/appellants before us.

The appropriate authority shall take a reasoned decision in the matter in accordance with law and the applicable rules within a period 4 of two months from the date of communication of this order after giving an opportunity of hearing to all concerned parties including the present appellants and the writ petitioner. The decision taken by the appropriate authority shall be communicated to the parties within one week from the date of the decision. Needless to say, if the appropriate authority comes to a conclusion that there is merit in the complaint of the writ petitioner to the effect that the present appellants had made unauthorized construction, appropriate remedial orders shall be passed by it. Since we have not called for affidavits, the allegations made in the stay application are deemed not to be admitted. Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible. (Rai Chattopadhyay, J.) (Arijit Banerjee, J.)