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 aforesaid has been affirmed by the Supreme Court of India while adjudicating the case of Debabrata Saha v. Serampore Municipality & Ors. [Civil Appeal No. 3657 of 2010] which was decided by a single judge bench comprising Justice Nageswara Rao on 1st September 2021.
The facts of the case are as follows. 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. 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.
The court perused the facts and arguments presented. it was of the opinion that “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 structure does not survive as the basis of the said order was the order dated passed by the Municipality.” Hence it declared that any such order should be decided by the civil court only.
