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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