- (1.) Heard the learned Advocates appearing for the parties. Assailing the judgment and order dated 4th April, 2012 passed in writ petition No. 4027(W) of 2012, this appeal has been preferred.
(2.) Learned Trial Judge did not quash the impugned order dated 18th January, 2012 passed by the Vice-Chairman, Ranaghat Municipality asking the writ petitioner to close Cold Storage for ice cream and not to run the powerful machine installed for Cold Storage but simply directed that opportunity of hearing should be given on that issue by the Municipal Authority and till a reasoned decision is taken the writ petitioner would not be entitled to run the Cold Storage Plant in the concerned premises. The appellant being the writ petitioner assailed the order of Vice-Chairman, Ranaghat Municipality dated 18th January, 2012, which reads such: As per direction of the Chairman, Ranaghat Municipality, you are hereby ordered to close your cold storage for ICE Cream and not to run the powerful machines installed for cold storage by you. You are directed to act as per order within 3(three) days from the date of receipt of this letter failing which any legal action may be taken against you.
(3.) Private respondent who was the complainant on issue of running of the Cold Storage for ice cream also participated in the hearing before the learned Trial Judge and filed respective affidavits. A very short question is involved before us as to whether the Vice-Chairman, Ranaghat Municipality had the power to pass impugned order in writ petition or whether the Chairman without adjudicating the issue, if any, may direct the Vice-Chairman to take action regarding stoppage of business. We have asked the learned Advocate for the Municipality about the power of the Vice-Chairman by which he issued the impugned order aforesaid. Learned Advocate has referred to section 200 of the West Bengal Municipal Act, 1993 and particularly sub-section (4) of the said section as an answer to that point by contending, inter alia, that Vice-Chairman was duly authorized by the Chairman to take action. Section 200 reads such: Power to prohibit change of authorized use of building.--(1) No person shall, without the written permission of the Chairman or otherwise than in conformity with the conditions of such permission,-- (a) use or permit to be used for the purpose of human habitation any building or part thereof not originally erected or authorized to be used for such purpose; (b) change or allow the change of the use of a building for any purpose other than that specified in the sanctioned plan; (c) change or allow the change of the use of any building erected before the commencement of this Act contrary to the use for which such erection was originally sanctioned; (d) convert or allow the conversion of a tenement within a building to an occupational use, other than the use intended in the original sanctioned plan, nor materially alter, enlarge or extend the permitted use. (2) If, in any case, such permission is given, no change of occupancy or use shall be allowed before necessary alternations or provisions have been made to the satisfaction of the Chairman and in accordance with the provisions of this Act or the rules or the regulations made thereunder or any other law for the time being in force. (3) Any change of use made before the commencement of this Act, except in so far as such use is permissible under the provisions of the Bengal Municipal Act, 1932 (Ben. Act XV of 1932), shall be deemed to be an unauthorized change and shall be dealt with under the provisions of this Act. (4) Without prejudice to any other action that may be taken against any person, whether owner or occupier, contravening any provision of this section, the Board of Councilors may levy on such person, in accordance with such scale as may be prescribed, a fine not exceeding in each case rupees one hundred per square meter per month for the area under unauthorized use throughout the period during which such contravention continues. (5) The Chairman may, if he deems fit, order that the unauthorized use be stopped forthwith: Provided that before making any such order, the Chairman shall give a reasonable opportunity to the person affected to show cause why such order shall not be made. (6) Any person aggrieved by an order of the by an order of the Chairman under sub-section (5) may, within thirty days from the date of the order, prefer an appeal against the order to the Board of Councilors whose decision in the matter shall be final and conclusive. (7) Where an appeal is preferred under sub-section (6), the Board of Councilors may stay the enforcement of the order made by the Chairman under sub-section (5) on such terms and for such period as it may think fit. (8) Save as otherwise provided in this section, no Court shall entertain any suit, application or other proceeding for injunction or other relief against the Chairman or the Board of Councilors to restrain from taking any action or making any order in pursuance of the provisions of this section. Explanation.-- For the purposes of this Chapter, "Unauthorized use" shall mean change or conversion of a building without sanction from one occupancy or use to another, such "occupancy" or "use" being from purposes, namely, residential, commercial, business, mercantile, industrial, storage, institutional assembly and hazardous (dangerous and offensive): Provided that any change or conversion, which is considered not to be of material significance under the rules made under this Act, shall not be deemed to be an "unauthorized use" for the purposes of this Chapter. Regarding delegation of the power to the Vice-Chairman learned Advocate for the Municipality has referred to sections 19 and 20A. Sections 19 and 20A reads such: Section 19. Vice Chairman.-- (1) The Vice Chairman shall, in the absence of the Chairman, preside over the meetings of the Chairman-in-Council as well as the Board of Councilors. (2) When-- (a) the office of the Chairman falls vacant by reason of death, resignation, removal or otherwise, or (b) the Chairman is, by reason of leave, illness or other cause, temporarily unable to exercise the powers, perform the functions and discharge the duties of his office, the Vice-Chairman shall exercise the powers, perform the functions and discharge the duties of the Chairman until a Chairman is elected under sub-section (3) of section 17 and assumes office or until the Chairman resumes his duties, as the case may be. (3) The Vice-Chairman shall, at any time, perform such other duty or exercise such other powers as may be delegated to him under the provisions of this Act. Section 20A. Delegation of powers and functions.--(1) The Board of Councilors may, by resolution, delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Chairman-in-Council or the Chairman. (2) The Chairman-in-Council may, by resolution, delegate, subject to such conditions as may be specified in the resolution, any of its powers or functions to the Chairman of the Chairman-in-Council. (3) Subject to such resolution as may be made by the Chairman-in-Council in this behalf, the Chairman may, by order, delegate, subject to such conditions as may be specified in the order, any of his powers or functions to the Vice-Chairman or to a member of the Chairman-in-Council or to the holder of any of the posts of officers referred to in sub-section (1) of section 53. (4) Notwithstanding anything contained in this section, the Chairman-in-Council, the Chairman, the Vice-Chairman, a member of the Chairman-in-Council or a holder of any of the posts of officers referred to in sub-section (1) of section 53 shall not delegate-- (a) any of its or his powers or functions delegated to it or him under this section, or (b) such of its or his powers as may be prescribed.;