- (1.) The appellants herein being the occupant of a portion of the premises in question have challenged the order of demolition Issued by the Chairman, Baranagar Municipality on the ground that the said order of demolition was not passed in compliance with the provisions of Section 218 of the West Bengal Municipal Act, 1993. Learned advocate representing the appellants submits that the Board of Councillors was never satisfied in respect of the existence of any unauthorised construction at the premises in question.
(2.) Learned Advocate of the appellants further submits that the Chairman of the Municipality took the decision regarding demolition of the unauthorised construction at the premises in question and such decision was subsequently ratified by the Board of Councillors. The provisions of section 218 is set out hereunder: 218. Order for demolition or alteration of buildings in certain cases.- (1) If the Board of Councillors is satisfied (a) that the erection of any building- (i) has been commenced without obtaining sanction or permission under the law, or (ii) is being carried on or has been completed otherwise than in accordance with the particulars on which such sanction or permission was based, or after such sanction or permission has been lawfully withdrawn, or (iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf, or (b) that any building or projection exists in violation of any condition, direction or requisition lawfully given or made under this Act or the rules or the regulations made thereunder, or (c) that any material alteration of, or addition to, any building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or the Schedule or in any rules or regulations in this behalf, it may, after giving the owner of the building a reasonable opportunity of being heard, make an order directing that such erection, alteration, addition or projection, as the case may be, or so much thereof as has been executed unlawfully, be demolished or altered and, upon such order, it shall be the duty of the owner to cause such demolition or alteration to the satisfaction of the Board of Councillors within such period as may be fixed in this behalf. In default, such erection, alteration, addition or projection, as the case may be, may be demolished or altered by the Board of Councillors at the expense of the said owner. (2) The procedure relating to the opportunity of hearing to be given to the owner of the building under sub-section (1) shall be such as may be prescribed. (3) An appeal against an order made by the Board of Councillors in this behalf shall lie with the [Court having-jurisdiction.] (4) ***** (5) Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Chapter, if the Chairman-in- Council is of opinion that immediate action is necessary in respect of any building being constructed, or any work being carried on. In contravention of the provisions of this Act, it may be, for reasons to be recorded in writing, cause such building or work to be demolished forthwith.
(3.) In terms of section 218 of the Act the Board of Councillors should be satisfied that the erection of the building has been commenced without obtaining sanction or permission under the law. In the present case, the Chairman of the municipality was satisfied about the unauthorised construction at the premises in question upon giving notice to all the parties and such satisfaction of the Chairman was undisputedly ratified by the Chairman-in-Council in its meeting held on 4th July, 2011. Unless the Board of Councillors is satisfied, no order can be passed for demolition of unauthorised construction. In the present case, the Board of Councillors had no scope to be satisfied in respect of the unauthorised construction since nothing was placed before the said Board of Councillors in this regard.;