Form No. J(2) Sl. No. 9 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Before: THE HON’BLE JUSTICE RAJA BASU CHOWDHURY WPA 27038 of 2025 Pramila Shah &Ors. Vs Bidhannagar Municipal Corporation &Ors. For the Petitioners : Mr. Suddhasatva Banerjee, Mr. Shiven Ray, Mr. A. Chakraborty, Mr. S. Mitra, Mr. R.D. Banerjee. For the BMC : Mr. SirsanyaBandopadhyay, Mr. Tirthankar Dey, Mr. Arka Kr. Nag. For respondent no. 6 : Mr. Shashwat Nayak, Ms. Akanksha Mukherjee, Ms. S. Chatterjee. Hearing Concluded on : 12th May, 2026 Judgment on : 12th May, 2026 RAJA BASU CHOWDHURY, J.: 1. The present writ petition has been filed, inter alia, challenging the stop work notice dated 8th July, 2025 issued by respondent no. 4 forming annexure 2 WPA 27038 of 2025 P-15 to the instant writ petition whereby the installation of two several lifts at Purbachal Nabarun Co-operative Housing have been stalled. 2. The petitioners are residents and claim to be owners of various residential apartments within a housing cluster named Purbanchal Nabarun Housing Society. The petitioners claim to be facing challenges regarding the age related ailments and other mobility constraints. From the by-laws of the co- operative society and as jointly submitted by the learned advocates for the petitioners and the co-operative society, it would transpire that the co-operative society was formed and registered sometimes on 14th April, 1983. Within co- operative society housing there are in all 11 towers comprising of straight, four storied buildings. Each of the towers have two flats on each floor. At the relevant point of time when the building was constructed no provision was made for construction of lifts. With the passage of time and the petitioners having suffered mobility issues, a decision was taken by the co-operative society to accord permission to the request made by the petitioners for installation of lifts on the terms and conditions appearing in the approval letter dated 16th September, 2023. To morefully appreciate the same, the said letter is extracted hereinbelow:- “To Mr. Santosh Kumar Das Convenor Lift Committee PurbachalNabarun Co-Op. Hsg. Society Ltd. Salt Lake, Kolkata-700097 Sub: Approval for installation of lift Sir, With reference to your letter dated 27.08.2023 the Board hereby accords its approval for installation of Lift in the building blocks on 3 WPA 27038 of 2025 the basis of consent given by intending members. This approval of the Board is subject to strict compliance of the terms and conditions laid down herein. TERMS & CONDITIONS: 1) Submission of the sanctioned plan and structural drawing prepared by a certified Architect of the Bidhannagar Municipal Corporation (BMC). All expenses for the project installation, maintenance and protection of the machinery will be that of the Lift Committee/actual users. The Lift Committee must ensure that the actual users comply with the all requirements in this behalf. Purbachal Nabarun Co-Op. Housing Society Ltd. or its Board will have no say in the matter. 2) It must be strictly ensured that no structural damage is caused to the building blocks with annexation of the Lift, now or in future and if at all there is any such instance, the Lift Committee will be entirely responsible for due repair of the same and all expenses connected therewith. Such repairs should be immediate to protect the buildings. 3) All the utilities that are underground such as the sewerage line, water line, electricity ducts, telephone cables, pit-holes etc. should be duly protected with no disturbance to them. 4) Existing car or scooter parking or travelling paths/walking path must. not be blocked/damaged by the construction material. The existing gardens must not be destroyed by the construction material. All waste material, during the execution of the Lift Project, must be disposed off outside the boundary walls of Cluster-1. No ifts related machinery nor Lifts maintenance related parts must remain dumped within cluster-1 premises after the Lifts begin functioning. 5) For energy consumption for the same Lift be recorded by a separate meter/ sub-meter which would be installed by the same Lift Committee entirely at their expenses and the energy bill of such meter/ sub-meter will be borne by the Lift Committee/ actual users installing the Lift. The Lift Committee must ensure prompt payment of all the bills for the Lifts concerned. Failure to do so, will entail disconnection of the power lines which will be an acknowledged prerogative of the board. 6) The regular maintenance of the Lifts and all repair and servicing of the said Lifts including AMC, if any, will be that of the Lift Committee/actual users. 7) The control of outsiders using the Lifts, such as house maids, vendors, visitors etc., will be the sole concern of the Lift Committee/actual users. The Purbachal Nabarun Cooperative Housing Society Ltd or its Board has no connection with this. 8) For any dispute arising out of technical, financial, structural, right of use or any other matter concerning the lifts, the said Lift Committee will resolve the same. The Purbachal Nabarun Cooperative Housing Society Ltd or its Board will not have any concern with such matters. 4 WPA 27038 of 2025 9) As the Lifts are going to be permanent structures/fixtures, so also shall be the Lift Committee who shall control, service and maintain the same in perpetuity. Election/selection of the future Committee will be done by the actual user members of the lifts. If you are agreeable with the above terms, please give us a letter agreeing with all the above terms mentioned herein, after which the Board will arrange to provide the documents desired by you as per your letter ibid. For and on behalf of the Board, Secretary For Purbachal Nabarun Co-operative Housing Society Ltd. 3. Records would reveal that in terms of the approval letter, a lift committee was formed and such committee ultimately approved the draft drawings for construction of lifts in the blocks A, B, C, D, P, Q, R, S, T, U and W and had forwarded the same to the board of directors of the co-operative society for further approval. The aforesaid fact would corroborate from the letter dated 7th May, 2024 appearing at page 36 of the writ petition. Following the aforesaid and upon obtaining approval of the co-operative society on the basis of application filed by the co-operative society, the municipal authority had issued a building sanction permit. Following the above, the co-operative society by communication in writing dated 28th November, 2024 conveyed the lift committee that the board of directors of the co-operative society in the meeting held on 23rd November, 2024 had accorded approval for installation of the lifts in accordance with the plan approved by the municipality. The other directions in the letter are with regard to extension of load capacity in the existing common electricity meter and installation of sub meter for the petitioners to appropriately install and operate the said lifts. 5 WPA 27038 of 2025 4. Consequent upon the same, the petitioners had commenced the construction work. Unfortunately, once the construction work commenced an objection was raised by certain members of the co-operative society as regards construction of the lifts. It is in the circumstances as aforesaid, the petitioners had lodged complaints with the local police station and subsequently filed a title suit before the Court of learned Civil Judge, Junior Division at Bidhannagar which was registered as T.S. 67 of 2025 praying, inter alia, for declaration that the plaintiffs and the other flat owners have lawful rights to install lifts at the building of the suit property as per the sanction plan of the municipal corporation as approved by the defendant no. 1 society without any obstruction as also for permanent and temporary injunction. The suit is pending adjudication before the learned Court. In the interregnum the municipality on the basis of the above complaint lodged by some of the members of the co-operative society and further noticing that the lifts are being constructed in contravention of the provisions of last sanctioned building plan, has issued a stop work notice on 8th July, 2025. 5. The challenge to the said stop work notice is under consideration before this Court. The municipality has filed a report in Court on 21st January, 2026 and the report shows the extent of deviation. As per the same though the size of the lift is sanctioned to be 1.5 X 1.5 meters, the lifts on the basis of the inspection was found to be 1.85 X 1.80 meters. The co-operative society has subsequently come up to oppose the present petitioners. Detailed affidavit running into 437 pages in 3 separate volumes has been filed. Photographs 6 WPA 27038 of 2025 starting from the day when construction started as appearing at page 412 of the affidavit has been disclosed. 6. Mr. Nayak, learned advocate appearing for the co-operative society has drawn attention of this Court to complaint lodged by the flat owners which is also countersigned by the Secretary and is dated 8th January, 2025 to drive home the contention that the construction of the lift was objected to by the concerned flat owners from the very first day. He has raised the issue of the lift blocking the entrance of the respective towers where the liftstructuresare being constructed. According to Mr. Nayak, the lift is only meant for the petitioners and the same interferes with the rights of the other members of the society. This apart he submits that the water pipelines are right below and beneath lift pit and as such the same interferes with the right of essential supply to the other members of the co-operative society. Lastly, he submits that the co- operative society is not averse to the petitioners constructing the lifts. According to him, if the petitioners shift the lift structures approximately by 18 inches, and relocates the lifts, the objection would no longer survive. Mr. Nayek further submits that although the petitioners by placing reliance on the judgment delivered by a Division Bench of this Court in the case of SatyanarayanKhaitan vs. The Joint Chief Electrical Inspector & Member Secretary (Lifts), Directorate of Electricity, Government of West Bengal &Ors.in MAT 1468 of 2023insists that no permission is required from the municipal authorities,however, the said judgment does not deal with the issue at hand. 7 WPA 27038 of 2025 The only issue that fell for consideration in the said judgment was whether a permission of the joint electrical inspector was necessary. 7. Mr. Nag, learned advocate appearing for the Municipal Corporation on the other hand, would insist that an illegal construction cannot be permitted to be retained,though the deviation appears to be minor. 8. Mr. Banerjee, learned advocate appearing for the petitioners, has submitted that the petitioners were ready and willing to construct the lift with the finances from all the members of the co-operative society. However, since some of the members has expressed their unwillingness either to participate in the installation of the lift or to use the same, that the co-operative society in the peculiar facts has taken a conscious majority decision to go ahead with the installation of lifts having regard to the genuine difficulties faced by the other members of the co-operative society including the petitioners and had accordingly granted approval for construction of two lifts in the co-operative society to cater to the two several towers out of the eleven towers therein. According to Mr. Banerjee, the claim made by the co-operative society to relocate the lifts by 18 inches, appears to be a fanciful approach. He also indicates that in the instant case the structure of the liftshave already been constructed in accordance with the sanctioned building plan. There is no irregularity. He further submits both lifts are ready for installation, only the electrical works are outstanding. 9. Having heard the learned advocates appearing for the respective parties, I find that it is not in dispute that the construction of the eleven towers of the 8 WPA 27038 of 2025 housing society took place in an era when construction of lift was considered to be a luxury. By passage of time situation has changed. The life expectancy of an individual has increased. However, at the same time the issue of mobility of an individual has been a hindering block in the meaningful enjoyment of life. Technology though has also played a role, and today ordinarily, for the municipality to sanction a building plan, the municipality ensures that the building, beyond a particular height, has a lift. 10. In the instant case, I find that the petitioners being elderly persons and having mobility constraints were compelled to approach the co-operative society and sought permission for construction of the lifts. Since all the members of the co-operative society did not agree to participate financially, the co-operative society had issued a conditional approval as would corroborate from the letter dated 16th September, 2023, conditions whereof have been noted hereinbefore. 11. The matter did not stop there. In terms of the aforesaid sanction a lift committee was constituted and upon approval of the plan, a sanction was obtained from the municipal authorities on 27th September, 2024. In furtherance thereof and upon approval granted by the municipality, the co- operative society under the signature of the Secretary, Joydeb Saha had given approval for installation of the lifts on 28th November, 2024 following the board of directors meeting held on 23rd November, 2024. Such fact would corroborate from the letter dated 28th November, 2024, a copy thereof has been annexed to the petition. Thereafter, the construction commenced. While carrying out 9 WPA 27038 of 2025 construction, certain members of the co-operative society had raised objections alleging that the foundation of the lift encroach almost 50% of the passage in the ‘T’ main gate which would create problem for the entry and exit to the building. Other issues have also been raised. Incidentally, the concerned secretary of the housing society by making a U-turn while accepting the complaints had made an endorsement on the complaint that he also endorsed the views of the complaints. Records would reveal that a civil suit has been filed. The civil suit does not touch upon the stop work notice issued by the municipality. In fact, records would reveal that an order of injunction was initially passed by the learned Court restraining the defendant from interfering with the construction work. However, when the stop work notice was disclosed, the injunction order was vacated and an order of status quois subsisting. 12. I, however, notice from the report disclosed by the municipal corporation that although, the municipal corporation has accorded permission for construction of lift size of 1.5 X 1.5 meters, the concerned lift pit is approximately infringing 0.35 meters on one side and 0.3 meters on the other. Obviously, the aforesaid deviation appears to be minor. However, considering the submissions made by Mr. Banerjee that the outer structure of the lift conforms to the sanctioned plan and only the lift pit which is embedded below the ground interferes with the sanctioned plan, to the aforesaid extent, I am of the view that the municipality should revisit the aforesaid show cause notice and take a conscious decision in accordance with law. The measurement should be made by excluding the lift pit as majority of the constructed portion 10 WPA 27038 of 2025 of the pit is embedded in the ground. Though the co-operative society has raised serious objections as regards the construction of the lift and on infringement of the ingress and egress, I find it is too late in the day for the respective members to lodge such complaint especially when a decision has been taken by the co-operative society.Further, the concerned members have not approached this Court rather it is the secretary of the co-operative who was a signatory to the letter according approval by making a U-turn has been objecting and resisting the setting up of the lifts. The other objection of the water connection running below the lift structure cannot be sustained as it is not the case of the parties, that approval for construction of the lift at the relevant spot was not given by the co-operative society. Further, since a sanction has been granted by the municipality, the above objection also pales into insignificance as in ordinary course the municipality is deemed to have looked in all such aspects before grant of sanction.Needless to note that the fanciful submissions made on behalf of the secretary of the co-operative society suggesting the petitioners to shift the lifts by 18 inches is not accepted by the Court and cannot stand in the way of this Court exercising discretionary jurisdiction in the peculiar facts of this case. 13. It is, however made clear, in the event, the outer structure of the lift excluding the lift pit, exceeds the sanction, the petitioners shall be at liberty to make the same in consonance with the sanction and inspection in this regard may be carried out by the municipal corporation after four weeks or once the 11 WPA 27038 of 2025 petitioners make construction compliant with the sanctioned building plan so far as the construction of the outer structure of the lift is concerned. 14. Accordingly, the stop work notice is set aside. Petitioners shall, however, not make the lifts operational without seeking appropriate permissions from the municipal corporation and on obtaining such permission may approach the Civil Court for appropriate order. 15. The aforesaid order is restricted for the concerned towers only. 16. With the above directions, the present writ petition stands disposed of. 17. There shall be no order as to costs. 18. Let urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties on usual undertaking. (Raja Basu Chowdhury, J.) SG. A.R(Ct.)