DR KAMAL KUMAR CHAKRABARTI vs THE KOLKATA MUNICIPAL MUNICIPAL CORPORATION AND ORS

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE

BEFORE:
HON’BLE JUSTICE RAJA BASU CHOWDHURY


WPO/598/2024

Dr. Kamal Kumar Chakraborti
Versus
The Kolkata Municipal Corporation & Ors.


For the Petitioner : Mr. Raghunath Chakraborty, Advocate
Mr. Kartik Kumar Roy, Advocate
Mr. Apurba Koley, Advocate
.

For the KMC : Mr. Sandipan Banerjee, Advocate
Ms. Manisha Nath, Advocate


For the Private Respondent : Mr. Alak Kr. Ghosh, Advocate
Mr. Sanjoy Boul, Advocate
Mr. P. B. Mullick, Advocate


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Heard on : 5 May, 2026

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Judgment on : 5 May, 2026


RAJA BASU CHOWDHURY, J:
1. The affidavit in reply filed in Court today be taken on record.
2. The present writ petition has been filed, in alia, praying for a direction
upon the respondent Corporation to cancel and/or rescind the
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sanctioned plan bearing serial no.14/Br-IV/2022-23 dated 4 April
2022. The petitioner claims to be PhD holder in Radio Physics, ex-CEO of
Webel Crystals Limited and author of dozens of papers. The petitioner

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claims to be an owner of a residential property situated at 28A, Badur
Bagan Lane, Kolkata – 700009 under Ward – 38 Borough – IV/V of the
Kolkata Municipal Corporation. The respondent no.8 is the owner of
premises no.28C, Badur Bagan Lane, Kolkata – 700009 (hereinafter
referred to as “the said premises”).
3. It is the contention of the petitioner that during 2015-2016 the owner of
the said premises had demolished a portion of the building and
reconstructed its RCC structure with a plan sanctioned by the sub-
Assistant Engineer (C), Ward No. 38, Borough – IV of the Kolkata
Municipal Corporation without following due process of law. It is also the
petitioner’s case that while carrying out the construction as aforesaid the
respondent no.8 made diverse deviation from the then sanctioned plan
including encroaching and absorbing the set-back area alongwith the
common partition wall. It is also the petitioner’s case that on the basis of
the complaint made by the petitioner the DG, Building had passed a
demolition order, though no such order has been disclosed in the writ
petition.
4. According to the petitioner, recently, the respondent no.8 has started
further construction upon obtaining approval from the municipal
authorities. It is also the petitioner's case that on this occasion as well,
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the respondent no.8 has deviated from the plan dated 4 April, 2022 and
has thereby violated the provisions of the Kolkata Municipal Corporation
Act 1980 (hereinafter referred to as ‘the said Act’) and the Building Rules
framed thereunder. It is still further contended on behalf of the petitioner

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that despite repeated requests since the respondent no.8 did not stop the
repair work, the petitioner was compelled to make representations with
regard to the illegal and unauthorized repairing work being carried out
by the respondent no.8 in deviation of the sanctioned plan. The petitioner
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claims that on 16 April, 2024, a hearing was conducted at the chamber
of the Dy.C.E(Bldg)/North at 3rd floor, Building Department, 5, S. N.
Banerjee Road at 1:00 pm. The petitioner does not discuss anything
thereafter with regard to the aforesaid hearing conducted by the
Dy.C.E(Bldg)/North. The petitioner, after placing the legal contentions,
has made the following prayers in the writ petition.
“A) A writ of and/or in the nature of Mandamus commanding
the respondents and each one of them their men, agents,
assigns to cancel and/or rescind the impugned sanction plan
being No. SL No. 14/Br-IV/2022-23 dated 04.07.2022;
B) A writ of and/or in the nature of Mandamus commanding the
respondents and each one of them their men, agents, assigns to
forthwith stop the illegal unauthorised construction work by
Respondent No. 8 and his men and agents at Premises No. 28C,
BadurBagan Lane, Kolkata-700009;
C) A writ of or in the nature of mandamus commanding the
Respondent Authorities upon cancelling the impugned sanction
plan being No. SL No. 14/Br-IV/2022-23 dated 04.07.2022,
forthwith initiate appropriate demolition proceeding against the
Respondent No. 8 in respect to the unauthorised construction
work at the said Premises No. 28C, BadurBagan Lane, Kolkata-
700009;
D) A writ of Certiorari directing the respondents to certify and
transmit the relevant records pertaining this case and produce
the same before the Hon'ble Court at the time of hearing so that
conscionable administered; justice could be administered;

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E) Rule NISI in terms of prayers (A), (B), (C) and (D) above;
F) Costs and incidental thereto;
G) Such other and further order or orders and/or direction or
directions as may deem fit and proper.”

5. The matter has come up for consideration after exchange of affidavits.
The affidavit filed by the municipality in court today is taken on record.
6. Mr. Chakraborty, learned Advocate representing the writ petitioner,
submits that the petitioner is 80 years’ old person and is suffering
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immensely. By drawing attention of this Court to the order dated 18
April 2024, appearing at page 91 of the affidavit in opposition filed by the
municipality, he would submit that the municipality has taken steps to
cause searches so as to ascertain the sanctioned file of 2015-16.
According to Mr. Chakraborty, there is no sanction of 2015-16 and in
absence of the sanctioned file/plan of 2015-16, no sanction could have
been granted by the municipal authorities, nor any reconstruction plan
could have been sanctioned. He submits that irrespective of the fact
whether the petitioner has made a complaint for revocation of the
sanctioned plan, the petitioner is entitled to maintain the writ petition
since this Court has directed exchange of affidavits. This apart, by
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drawing attention of this Court to an order dated 20 November, 2024,
he submits that though this Court on being prima facie satisfied had
observed that the respondent no.8 should modify the structure by setting
it back by at least four feet from the common boundary wall, the
respondent no.8 is yet to comply with such direction.

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7. The municipality is represented. Mr. Banerjee, learned advocate
appearing for the municipal authorities by drawing attention of this
Court to the complaints lodged by the petitioner, would submit that the
petitioner's complaint was duly enquired into and the same was disposed
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of by passing the order dated 18 April, 2024. According to Mr. Banerjee,
the above order was duly served on the petitioner and the same would
corroborate from the report filed by the municipal authorities before this
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court on 4 July, 2020. By drawing attention of this Court to the
affidavit filed by the municipality, it is submitted that sometime in June,
2022, an application was made for obtaining sanction under Section 410
of the said Act read with office circular no.9 of 2013-14. The municipal
authorities upon causing searches in the records of the corporation to
ascertain as to whether any case of unauthorized construction was
pending and upon verifying that no proceeding was pending under
Section 401 of the said Act, found that the plan proposal to be in order,
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and accordingly sanction was granted on 22 June, 2022. There is no
irregularity in issuing the sanctioned building plan.
8. Mr. Ghosh, learned Advocate appears for the private respondent. He
submits that the petitioner is residing in the portion of premise which
was originally numbered as 28, which has since been renumbered as
28A and 28C, Badur Bagan Lane. While the petitioner now resides in
premises number 28A, the private respondent is residing in premises
number 28C. According to him, the original structure was more than 100
years’ old. A portion therof has since been reconstructed and there is a

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common partition wall in between the two separate premises. He also
points out that no application has been filed by the petitioner before the
municipal authorities for revocation of the sanction under Section 397 of
the said Act. According to him, this Court ordinarily ought not to exercise
jurisdiction in a matter relating to revocation of a sanction plan at the
first insance as the private respondent has a right to be heard before the
municipal authorities who granted such sanction. This apart it is still
further submitted that the construction carried out by the respondent is
in accordance with the sanction plan.
9. Having heard the learned Advocates appearing for the respective parties,
I find that the prayers made by the petitioner are essentially for
revocation of a sanctioned building plan in terms of Section 397 of the
said Act. The petitioner may have serious grievances. However, even after
scanning the file, this Court could not identify from any of the
complaints made by the petitioner that any application for revocation of
the sanction building plan has been made. It is true that an application
relating to an illegal construction has been made. From the order passed
by the municipal authorities appearing at page 91 of the writ petition, it
may be found that the municipality has returned the finding that on a
recent inspection at the site it found the construction to have been
carried out in accordance with the sanctioned plan. The order also notes
that the executive engineer was directed to search out the sanction file of
2015-16. It is, however, not clear whether such decision is final. In so far
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as the order dated 20 November 2024 is concerned, the observations

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made therein are only prima facie as would appear from the same. The
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plan sanctioned on 22 June 2022 would show that the same has been
issued under section 410 of the said Act read with Rules 3(2) and 141 of
the Kolkata Municipal Corporation Building Rules, 2009 which
presupposes existence of other existing structures, which explains the
proximity of the structure from the boundary wall.

10. Be that as it may, if the municipal authorities are unable to trace
any document, the same cannot stand either in favour of the petitioner
or against the private respondent. The petitioner seeks for a prayer in the
nature of mandamus for cancellation of the sanction building plan. It is
elementary that in such case an application ought to have been filed
before the municipal authorities, especially when the statute provides for
the manner in which an application for revocation of a sanction building
plan can be made. Admittedly in this case, no application for revocation
of the sanctioned building plan has been filed. As such, this Court
cannot usurp the jurisdiction of the municipal authorities and decide on
the cause. However, at the same time, considering the fact that the
petitioner may or may not have a genuine grievance, without deciding
such issue, this Court grants liberty to the petitioner to approach the
municipal authorities by filing an appropriate application for revocation
of the sanctioned building plan, if so advised. If such application is filed
within a period of two weeks from date, the municipal authorities shall
decide on the same in accordance with law as expeditiously as possible,
preferably within a period of six weeks from the date of filing such

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application. Independent of the above, considering the fact that the
complaint had been made by the petitioner as regards illegal
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construction, and though the same was dealt with by order dated 18
April, 2024, a final decision in this regard should also be taken by the
municipal authorities and communicated to the petitioner.
11. It is made clear that this Court has not decided on the merits of
the contentions and counter-contentions of the parties and it shall be
open to the parties to raise all questions in appropriate proceedings if so
advised in accordance with law.

12. The writ petition thus, stands disposed of.

(RAJA BASU CHOWDHURY, J.)




R. Bose/akg