SAMIR KUMAR ROY Vs. BIRNNGAR MUNICIPALITY

JUDGEMENT

(1.) THIS writ petition is moved with notice to the respondents and the learned counsels have appeared for the Birnagar municipality and also for some of the Commissioners of the Municipality namely respondents Nos. 4, 5 and 6. The petitioner has contended that after purchasing some land from the lawful owner the petitioner has made construction on such land and there had not been any unlawful or unauthorised construction on such land. But the Municipality initially contended that the petitioner had encroached on a portion, of the Municipal land and later on a notice under section 241 of the Bengal Municipal Act has been issued by the Chairman of Birnagar Municipality, inter alia, contending therein that the petitioner having entered upon the land of the Municipality had made unauthorised construction on the same and the petitioner was directed by the said notice under Section 241 (1) to demolish structure within three days from receipt of the said notice.

(2.) IT has been contended by the learned counsel for the petitioner and also the learned counsel appearing for some of the Commissioners namely respondents Nos. 4 to 6, that the Chairman of the Birnagar municipality had no authority to issue the said notice under sec. 241 (1) of the bengal Municipality Act' and no resolution to that effect had been taken by the Commissioners of the Municipality. The learned counsel for the chairman of the Birnagar Municipality has, however, contended that under section 51 of the Bengal Municipality Act. the powers of the Chairman of the Municipality have been enumerated an. the Chairman for the transaction of the business connected with the Bengal Municipal Act or for the purpose of making any order authorised there by, can exercise all the powers vested by the Act in the Commissioners and, where by any other law, power is vested in the Commissions for any purpose, the Chairman may transact any business or make any order authorised by that law in the exercise of that power, unless it is otherwise expressly provided in that law In sub-sec (1) of sec. 51 it has also been provided that the chairman shall not act in opposition to, or in contravention of, any order of the Commissioners at meeting or exercise any power which is directed to be exercised by the Commissioners at a meeting. The learned Counsel for the Chairman has drawn the attention of the court to section 332 which lays down that notwithstanding anything contained in section 532 or Section 533, no prosecution for an offence referred to in section 330 or Section 331 shall be instituted without the 'order or consent of the commissioners at a meeting and the Commissioners before passing such order or giving such consent shall give to the owner or occupier of the building any opportunity of showing cause why such prosecution should not be instituted. The learned counsel for the Chairman of the Municipality has contended that there is no statutory requirement that before issuance of a notice under section 241 the Commissioners of the Municipality shall take a decision to that effect in a meeting.

(3.) CONSIDERING the submissions made by the learned Counsels for the parties it appears to me that the learned counsel appearing for he Chairman of the Municipality has rightly contended that power under section 241 is a power vested to the Commissioners of the Municipality and the Chairman was competent to issue the notice even in the absence of a decision taken by the Commissioners of the Municipality at a meeting to issue such notice under section 241. In the aforesaid circumstances, liberty is given 'to the petitioner to ask far further particulars from the municipality about the alleged unauthorised construction so that he can lake proper representation against the notice issued under sec. 241. So far as the dispute about the alleged encroachment of the land of the municipality by the petitioner is concerned such dispute cannot and should not be properly decided in the writ jurisdiction and the parties should he relegated to proper civil suit for determination of such dispute. Liberty therefore, given to the petitioner to institute a proper suit for resolving to issue as to whether or not encroachment on the land of the Municipality has been made by the petitioner. The Municipality is directed to indicate to extent of alleged unauthorised construction made by the petitioner within a period of' four weeks from the receipt of representation from to petitioner. The petitioner is given liberty to make proper representation against such notice within three weeks from the date of receipt of the particulars from the Municipality. The Municipality will dispose of such rejections against the said notice under sec. 241 in accordance with law thin six weeks. This order will not preclude the petitioner to file a roper suit for deciding the respective title of the parties in the land in question. Byway of abundant caution, it is made clear that so long the petitioner does not furnish the objection on getting the particulars from the Municipality -as directed hereinbefore, the Municipality should not indulge in arty act of demolition pursuant to the notice issue by the municipality under section 241. The writ application is disposed of accordingly. There will be no order as to costs. If an application for certified copy of this order is applied for, the same may be supplied at an early date. Application disposed of.