Debabrata Saha vs Serampore Municipality And … on 1 September, 2021


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Supreme Court of India

Debabrata Saha vs Serampore Municipality And … on 1 September, 2021

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, B.R. Gavai, B.V. Nagarathna

                                              Non-Reportable


           IN THE SUPREME COURT OF INDIA
              CIVIL APPELLATE JURISDICTION

              Civil Appeal No. 3657 of 2010

Debabrata Saha                              ... Appellant

                          Versus

Serampore Municipality & Ors.             …. Respondents




                      JUDGMENT

L. NAGESWARA RAO, J.

1. This Appeal is filed against the judgment of the Calcutta

High Court by which the Appeal filed by Respondent No.3

was allowed and the Writ Application filed by the Appellant

stood dismissed. The Appellant purchased the ground floor

of a two storied building situated at 45/2/G.T. Road (West)

Serampore on 14.08.2002 from Respondent No.3 by a

registered deed of conveyance. Mutation was done in the

name of the Appellant on 12.03.2003. According to the

Appellant, Respondent No.3 who was residing on the first

floor started construction on the roof of the second floor on

31.12.2003. The Appellant made a complaint to the local

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police station and the Chairman, Board of Councilors,

Serampore Municipality-Respondent No.2 herein. The

Appellant reiterated his complaint on 14.07.2004. As no

action was being taken on the complaints preferred, the

Appellant filed a Writ Petition before the High Court of

Calcutta alleging inaction on the part of the Municipal

Corporation in taking appropriate steps. The Writ Petition was

disposed of by the High Court with a direction to the Board of

Councilors (for short “the Board of Councilors, Serampore

Municipality”) to consider the representations made by the

Appellant on 31.12.2003 and 14.07.2004 within a period of

four weeks from the date of communication of the order. In

the meeting of the Board held on 14.02.2006, it was decided

that the permission for construction on the second floor was

obtained by Respondent No.3 on the basis of

misrepresentation of facts. Thereafter, an order was passed

by the Chairman, Board of Councilors, Serampore

Municipality revoking the sanctioned plan in favour of

Respondent No.3. Being aggrieved by the municipal

authorities in not taking action to demolish the illegal

construction which was made pursuant to the revocation of

the sanctioned plan, the Appellant filed another Writ Petition

seeking a direction to the authorities of the municipal

corporation to take appropriate action to demolish the

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construction. The said Writ Petition was disposed of by the

High Court directing the municipal corporation to initiate

proceedings under Section 218 of the West Bengal Municipal

Act, 1996 (for short “the Act”) for demolition of the illegal

construction and to pass a reasoned order after giving a

reasonable opportunity to all concerned. By way of

implementation of the order of the High Court, a letter was

issued by the municipal corporation to Respondent No.3 to

remove the structure on the second floor.

2. Respondent No.3 filed a Writ Petition challenging

cancellation of the building plan by the municipal authorities.

A learned Single Judge of the High Court disposed of the Writ

Petition and relegated Respondent No.3 to an alternate

remedy of Appeal. Respondent No.3 filed an Appeal against

the order of the learned Single Judge which was allowed by

the Division Bench of the Calcutta High Court. Therefore, this

Appeal.

3. The High Court was of the opinion that the Board of

Councilors did not hear the matter and did not take a

decision as required under Section 217 of the Act. After

perusing the records produced by the Municipal Corporation,

the High Court found that the Chairman of the Board of

Councilors heard the matter on 27.12.2005 in the Municipal

Office when the Appellant, Respondent No.3 and two other

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gentlemen i.e. Shri Avijit Saha and Shri Amitava Dey were

present. The Board of Councilors is the competent authority

under Section 217 of the Act, to decide any dispute on the

issue of misrepresentation or fraudulent statement in the

application seeking sanction of building plan, for the purpose

of passing an appropriate order to cancel such sanction. The

decision of the Chairman on 14.02.2006 was held to be

without jurisdiction. In consequence thereof, the decision

dated 14.02.2006 was declared a nullity and set aside by the

High Court. While referring to the deed of conveyance, the

High Court held that the Appellant had a right to use the roof

of first floor and the roof of proposed second floor. The High

Court opined that the dispute raised by the Appellant cannot

be decided by the municipality in terms of Section 217 of the

Act and it requires adjudication by a civil court. While

leaving it open to the parties to approach civil court to

redress their grievances, the High Court dismissed the Writ

Application filed by the Appellant.

4. We have heard Mr. S.K. Bhattacharya, learned counsel

appearing for the Appellant, and Mr. Ranjan Mukherjee,

learned counsel appearing for Respondent No.2. By relying

upon the Minutes of Meeting dated 27.12.2005 of the Board

of Councilors, Serampore Municipality, the learned counsel

for the Appellant argued that the Chairman, Vice Chairman

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and three other Members of the Council were present at the

meeting during which a decision was taken that Respondent

No.3 had obtained permission for construction on the second

floor by misrepresentation and suppression of facts. On the

other hand, learned counsel for the Respondent argued that

there is no ambiguity in Section 217 of the Act by which a

decision has to be taken by the municipal council and not by

the Chairman of the Municipality. We have perused the

Minutes of Meeting dated 27.12.2005. The learned counsel

for the Respondent is right in submitting that the Chairman,

Vice-Chairman and three other Members of the Municipal

Corporation were present in the meeting. However, in the

said meeting a decision was taken to recommend for

appropriate action under Section 217 of the Act and for a

reasoned order to be passed after the meeting of the Board

of Councilors. It is not in dispute that, thereafter, the order

dated 14.02.2006 was passed by the Chairman of the

Serampore Municipality. The High Court is right in holding

that the order dated 14.02.2006 passed by the Chairman of

the Serampore Municipality is without jurisdiction. There is

no error committed by the High Court in holding that the

order dated 05.06.2006 by which action was directed to be

initiated under Section 218 of the Act for demolition of the

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structure does not survive as the basis of the said order was

the order dated 14.02.2006 passed by the Municipality.

5. We have perused the sale deed dated 14.08.2002 by

which the Appellant had purchased the ground floor of the

property in dispute. The conveyance relates to the ground

floor of the two-storied building admeasuring a covered area

of 950 square feet. The Appellant was permitted to use the

common stair case, septic tank, open yard, separate water

reservoir in common portion common passages, common

drain in the ground floor along with roof right. The dispute

pertains to the right of Respondent No.3 in making a

construction on the roof of the first floor in which he resides.

Any dispute relating to that right has to be decided by the

civil court as held correctly by the High Court.

6. Therefore, the Appeal is dismissed.

……………………………….J.

[ L. NAGESWARA RAO ]

……………………………….J.

[ B.R. GAVAI]

New Delhi,
September 01, 2021.

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