[Cites 7, Cited by 0]
Calcutta High Court
Amit Basu vs The Kolkata Municipal Corporation & Ors on 11 December, 2025
OD- 3
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE.
WPO/751/2025
AMIT BASU
VS
THE KOLKATA MUNICIPAL CORPORATION & ORS.
BEFORE
THE HON'BLE JUSTICE RAJA BASU CHOWDHURY
Date: 11th December, 2025
Appearance
Mr. Jaydip Kar, Sr. Adv.
Ms. Piyali Sengupta, Adv.
Mr. Bhaskar Mukherjee, Adv.
Mr. Jyoti Rauth, Adv.
Ms. Nafisa Yasmin, Adv.
...for the petitioner
Mr. Sandipan Banerjee, Adv.
Mr. Gopal Chandra Das, Adv.
..for the KMC
Mr. Supratik Basu, Adv.
Ms. Diya Sardar, Adv.
....for the respondent no.11
1. Challenging the order dated 4th August, 2025 passed by the Executive
Engineer (Civil), Building Department, Borough-1, the instant writ petition has
been filed.
2. The matter has a chequered history. The petitioner is the owner of
premises nos.16/1A and 16/1B, Nandalal Bose Lane, Kolkata - 700003
(herein referred to as the 'said property') which was originally owned by one
Shibendra Nath Basu. According to the petitioner, the said Shibendra Nath
Basu had transferred the aforesaid property to a trust by two indentures of
trust dated 15th June 1968 and 3rd July 1974. The said Shibendra Nath Basu
as settler and his wife Anima Basu were trustees of the said trust. On the
death of the settler and his wife, the trust came to an end and the property
vested in the petitioner, who is the sole beneficiary under the trust. The said
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property comprises of 11 cottahs and 4 chittacks 24 sq. ft. and 11 cottahs and
7 chittacks 17 sq. ft. of land pertaining to premises nos.16/1A and 16/1B,
Nandalal Bose Lane, Kolkata - 700003 respectively. According to the
petitioner, the said property comprised of pucca and kaccha structures which
were constructed by the owners.
3. The petitioner claims that the Thika Controller and the respondent no.1
wrongfully by treating the said property to be governed by the provisions of
West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001
(hereinafter referred to as 'Thika Tenancy Act') had mutated the name of
Nandalal Bose Lane and the names of Kanhailal Das and Bijay Krishna Roy
and also renumbered as B/16/1A/H/2 and B/16/1B/H/2, Kolkata, without
notice to the petitioner.
4. The petitioner having come to learn with regard to the aforesaid had
challenged such recording. Ultimately, by a judgment and order dated 14th
March, 2024 passed by the Division Bench of this court, the order passed by
the West Bengal Land Reforms and Tenancy Tribunal, which held that the
said property is governed by the provisions of the Thika Tenancy Act was set
aside. Though, a special leave to appeal is pending consideration before the
Hon'ble Supreme Court, according to the petitioner, there is no interim order
subsisting in such matter.
5. The petitioner contends that the private respondents without the notice
and consent of the petitioner started illegally constructing on the said
property without any sanctioned building plan. Since the construction had
commenced without any sanction plan, on the basis of a complaint lodged by
the petitioner, the municipality had issued a notice on 10th October, 2013,
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under Section 401 of the Kolkata Municipal Corporation Act, 1980 (hereinafter
referred to as 'the said Act'). Upon receiving such notice, the private
respondents had made an application for regularizing the aforesaid
construction. Records would reveal that the private respondents, behind the
back of the petitioner had moved a writ petition which was registered as WPO
No.1344 of 2023 (Surajit Biswas vs. The Kolkata Municipal Corporation), inter
alia, in effect, questioning the notice issued under Section 401 of the said Act
on the ground that only minor repair work was going on, when the above
notice was issued. The coordinate bench of this Court, by an order dated 3rd
July, 2023, taking note of the above and in absence of any other disclosure
being made by the private respondents, was of the view that the Executive
Engineer of the concerned Borough should take consequential steps in the
matter after issuance of the notice under Section 401 to deal with the
unauthorized construction that had been detected in the subject premises.
However, it was also provided that the respondents may initiate proceedings
in accordance with law and conclude the same after giving opportunity of
hearing to all necessary parties. By such order, it was made clear that if there
is no unauthorized construction, in that event the person responsible shall be
permitted to conclude the construction that is going on. With the above
observations, the writ petition stood disposed of.
6. The petitioner was, however, not put on notice and was completely
unaware with regard to the aforesaid until the time hereinafter mentioned.
7. In the interregnum, since an illegal construction was going on at the
aforesaid property, the petitioner had moved a writ petition which was
registered as WPO 247 of 2025. By an order dated 26th June 2025, a
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Coordinate Bench of this Court, taking note of the case made out by the
petitioner that a multi-storeyed building has been constructed
unauthorizedly, directed the municipality to decide on the petitioner's
representation/complaint dated 5th February, 2025 in accordance with law.
Pursuant to the aforesaid, the Executive Engineer (Civil), Building
Department Borough 1, upon giving opportunity of hearing to the parties
including the petitioner and the private respondents, had observed, inter alia,
as follows:-
"Whereas from the record in respect of the premises no 16/1B, Nandalal
Bose Lane, renumbered as 8/16/18/H/2, Nandalal Bose Lane, Kolkatu-
700003, Ward No: 007, Borough-I of KMC, it is noted that, this is a case of
unauthorized construction without any sanction plan from KMC. Inspected
the aforesaid premises by this department on 10.05.2023 & found that
construction of R.C.C. column at ground floor is going on without taking
sanctioned/permission from KMC. To stop progress of unauthorized
construction, Notice U/S 401 of KMC Act 1980 was issued upon P/R and
Police Intimation was sent to the Shyampukur PS on 10.05.2023
Subsequently the matter was placed before higher authority of KMC and
accordingly it was ordered to demolish the entire unauthorized construction
U/S 400(8) of KMC Act 1980.
But during attempting of demolition program on 30.06.2023 someone
produce a letter from Amit Gupta, Advocate along with order passed by Ld.
Judge, Bench X, City Civil Court, Calcutta dated 10.11 2022 vide TS No.
2325 of 2022 where it ordered that "therefore, considering the urgency,
there will be nothing impediment in allowing the interim relief as sought for
on behalf of the Plaintiff Petitioner for passing an order of status quo in
respect of the suit property as described in the schedule of the plaint as
well in the Schedule of Application for injunction under order 39 rule 1 & 2
of the CPC as filled by the Plaintiff Petitioner, so far nature, character and
possession are concerned, as on this date
Accordingly, same is allowed in favour of the Plaintiff Petitioner and such
relief remains effective till the next date.
The said ad interim order dated 10.11.2022 has extended till 14.08.2023
by order of Ld. Judge, Bench X, City Civil Court, Calcutta dated
15.03.2023. Accordingly as per the said order vide T.S No. 2325 of 2022
the demolition programme at above mentioned premises was postponed
and the matter was been kept in abeyance.
Also in the meantime P/R Sri Surajit Biswas filed a writ before Hon'ble
High Court at Calcutta vide WPO No. 1344 of 2023 and accordingly the
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Hon'ble Court pleased to pass an order on 03.07.2023 directing "...the
Executive Engineer of the concerned Borough is directed to take further
consequential steps in the matter after issuance of the notice under Section
401 to deal with any unauthorized construction that has been detected at
the subject premises
The aforesaid respondent may initiate proceedings on accordance with law
and conclude the same after giving a reasonable opportunity of hearing to
all the necessary parties....."
As per said order passed by Hon'ble High Court at Calcutta dated
03.07.2023 a hearing was taken on 15.07.2023 by the Executive
Engineer(C) with prior intimation to all the parties. During hearing Sri
Surajit Biswas (petitioner) was present and submitted a prayer letter
regarding regularization of unauthorized construction with necessary fees
& Charges. Accordingly in the line of order passed by Hon'ble High Court at
Calcutta dated 03.07.2023 and subsequently considering the prayer letter
of Sri Surajit Biswas (petitioner) dated 15.07.2023 the Executive Engineer
(C) ordered to process the matter U/S 400(1) of KMC Act 1980 read with
office circular no. 16 of 2021-2022 of Director General (Building) dated
02.03.2022.
During further inspection on 26.07.2023 in the aforesaid premises it is
found that the P/R(s) have resumed the construction work defying the Stop
Work Notice U/S 401 of KMC Act 1980 dated 10.05.2023 by construction of
R.C.C. slab at ground, 1 & 2nd floor roof level supported by R.C.C. column
along with brick wall. To stop further progress of unauthorized construction
FIR u/s 401A of KMC Act 1980 was lodged against P/R on 26.07.2023.
As per order of Executive Engineer(C)/Building/Br-1 notice U/S 400(1) of
KMC Act 1980 along with Preci and demand notice for 50% security deposit
as per circular 16 of 2021-22 of DG (B) dated 02.03.2022 has issued upon
P/R and accordingly the P/R has deposited the same.
The matter is in the process for hearing before Special Officer (Building),
u/s 400(1) of KMC Act 1980.
ORDER
Considering the above submission and the fact arising out during hearing,
it is ordered that, as the matter is pending for hearing before Special Officer
(Building), u/s 400(1) of KMC Act 1980 for conclusion. We may abide by
the decision of the order of Special Officer (Building).
With this order the matter stands disposed of.
Let this order be communicated to all the parties."
8. It is from the aforesaid proceeding and the order that the petitioner has
come to learn with regard to the factum of the previous writ petition being
moved by the private respondents, as also with regard to the factum of the
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private respondents being called upon to deposit certain sums towards
security deposit for regularization of the unauthorized construction.
9. Mr. Kar, learned Senior Advocate representing the petitioner would
submit that private respondent by practicing fraud on Court as also on the
petitioner including the municipality at the first instance, had moved the writ
petition behind the petitioner's back and obtained the order dated 3rd July,
2023.
10. This court was never made aware that the entire construction was
illegal and that there was a subsisting order under section 400(8) of the said
Act when the order dated 3rd July, 2023 was passed. According to Mr. Kar, the
municipality has permitted the illegal construction to continue and today, five
storied structure is standing on the said property.
11. Mr. Banerjee, learned advocate appears for the municipality. He is,
however, unable to enlighten this Court as to whether any order regularizing
the aforesaid illegal construction has been passed.
12. The private respondents are represented. In response to a query from
the Court, the learned advocate representing the private respondents would
submit that the private respondents have acquired interest in respect of the
structure which was in existence by virtue of a deed of gift dated 21 st April
1989. He has also placed before this Court the receipt issued by the Kolkata
Municipal Corporation to demonstrate that in compliance of the directions
passed by the municipal authority, the private respondents had already put in
the security deposit and other charges for regularization of the unauthorized
construction. Let copies of the above documents be taken on record.
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13. Heard the learned advocates appearing for the respective parties. Prima
facie, I find that the private respondents are not the owner of the property in
question, however, the claim of the private respondents is in relation to a
particular structure which admittedly even on the own saying of the private
respondents is no longer in existence since, a new structure has come up. It is
also an admitted position that the new construction that has come up at the
said property is illegal as does not have the sanction of the municipal
authorities and has been constructed on the teeth of a notice issued under
section 401 as also of an order passed under section 400(8) of the said Act. I
find from the order passed by the co-ordinate Bench dated 3rd July, 2023 that
the co-ordinate Bench had only permitted continuation of construction
provided there was no unauthorized construction in the said premises. Thus,
the said order read with the observations made by the Executive Engineer as
appearing at internal page 4 of the order dated 4th August, 2025 would in no
uncertain terms indicate that at the time of inspection by the department on
10th May, 2023, the construction that was noted, was of on RCC column at
the ground floor of the said property. Obviously, even at that stage, the
municipal authorities were certain that there was no sanction plan and, as
such, in terms of the directive issued by the co-ordinate Bench dated 3rd July,
2023, the municipal authorities ought not to have permitted the person
responsible to continue with further construction. The construction that has
come up is on the teeth of the order restraining further illegal construction at
least the same is apparent from the orders passed by this Court and the order
dated 4th August, 2025.
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14. Having regard thereto, and noting from the parties that the building is
yet to be completed and only super structure is complete, I am of the view that
at this stage, the municipal authorities should not permit any further
construction in the said premises and that none should occupy the said
property without express leave of this Court. The concerned Executive
Engineer, Borough-1 is directed to inspect the said property. The municipal
authority shall carry out inspection upon prior notice to the learned
Advocates-on-record of the respective parties who shall also be entitled to
accompany the Executive Engineer.
15. The executive engineer shall take photographs of the building from all
corners and prepare a detailed inventory. Let such report be filed before this
Court on or before the matter is taken up next.
16. If a requisition is made by the municipal authorities for police
assistance, the officer-in-charge of the local police station shall provide
necessary adequate assistance.
17. It is, however, made clear that pending disposal of the writ petition, no
decision should be taken by the authority to regularize the illegal
construction.
18. The interim order shall continue till the end of January, 2026 or until
further orders whichever is earlier.
19. List this matter in the month list of January, 2026.
(RAJA BASU CHOWDHURY, J.)
akg/
