BHUPAL CHANDRA CHANDA Vs. CHAIRMAN PANIHATI MUNICIPALITY

JUDGEMENT

(1.) In this application, the petitioner has, inter alia, prayed for issuance of a Writ of or in the nature of Mandamus directing the respondents to set aside an order dated 29-11-96 passed by the Chairman of the respondent municipality, which is in the following terms :

(2.) This writ petition has a chequered history. The petitioner allegedly constructed his residential house at premises No. F-5, School Road, Sedepur, consisting of one storeyed building. The private respondent completed the structure of new staircase and other structures at his premises to a height of more than their two storeyed building and upon protest as regards unsoundness of the structure by the petitioner, construction was stopped by the private respondent in July 1989. A written representation was made by the petitioner to the municipal authorities pointing out to them that the respondent allegedly had violated the building rules framed under the Bengal Municipal Act. Notice had been issued by the municipal authorities in terms of section 333 of the Bengal Municipal Act, directing the private respondent to stop all further constructions and not to make any construction in deviation of the sanctioned plan. Constructions had been stopped pursuant thereto by the respondent. However, the petitioner made several representations in the months of November and December 1989; and January 1990 asking the respondent municipality to demolish the said structure. Further representations were made on 26-2-90 and 11-5-90. The petitioner also filed all documents in support of his statement. Another representation was made on 22-8-90. The respondent No. 1, by a letter dated 3-9-90 fixed the date of hearing in the matter on 28-8-90 in his chamber. A writ application was filed by the petitioner, which was marked as C.O. No. 14031 (W) of 1990 and U.C. Banerjee as His Lordship then was) by an order dated 19-9-91 disposed of the said writ application, inter alia, directing the municipal authorities to consider the whole matter afresh without taking recourse to external aid of any of the parties and to deal with the matter in accordance with law and upon affording an opportunity of hearing to both the parties. The said order is contained in annexure 'F' to the writ application. Pursuant to the said order, an enquiry was made by a Engineer who was an employee of the municipality, relying on or on the basis whereof an order was passed by the Chairman on 25-4-92. Questioning the legality or validity of the said order, another writ application was filed in May 1992 which was marked as C.O. No. 6169 (W) of 1992. R. Pal, J., by a detailed judgment, which is contained in annexure 'I' to the writ application considered the same and, inter alia, held :

(3.) The learned Judge further held that the Chairman ought to have given a copy of the report of the Engineer and heard the parties in compliance of the principles of natural justice. As regards contention raised on behalf of the respondent regarding applicability of Section 330 and Rule 39 of Schedule VI of the Bengal Municipal Act, the learned Judge, inter alia, held that the Chairman had not passed any order relaxing the provision of the rule. It was, however, held :"The power of relaxation, in any event, is one which has to be exercised bona fide giving reasons therefor.The learned Judge also held :