IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present : The Hon’ble Justice Shampa Dutt (Paul) WPA 16205 of 2019 Smt. Puspa Rani Deb (Smt. Puspa Deb) C & C R Vs. Krishnanagar Municipality & Ors. For the Petitioner : Mr. Dilip Kumar Maity. For the State : Mr. Jagabandhu Roy, Mr. Rezaul Hossain. For the Respondent : Mr. Sankar Halder. Nos. 1 and 2 For the Respondent : Mr. Soumik Pramanik, No.6 Mr. Debabrata Das, Mr. Saptarshi Mukherjee. Hearing concluded on : 31.01.2025 Judgment on : 13.02.2025 Shampa Dutt (Paul) , J. 1. The present writ application has been preferred praying for direction upon the respondent no. 2 to take necessary step on the basis of the enquiry report dated 31.05.2010 and demolish the unauthorized construction at Mouza:- Sandhya, J.L. No. 97, Plot No.231 and 235, P.S. Kotwali, District: Nadia. 2 2. The petitioner’s case in short is that the petitioner has been constructed her residential accommodation at Mouza: Sandhya, J.L. No. 97, Plot No.233 and 234, P.S. Kotwali, District: Nadia after taking building sanction plan from the municipal authority. 3. The respondent no. 6, Manju Rudra Biswas wife of late Saroj Kumar Rudra Biswas of 4, Beltalbazar Lane, P.O. Gruni, P.S. Kotwali, District : Nadia, PIN-741103 has started construction in southern side of the petitioner’s land in the year 2004 at Mouza: Sandhya, J.L. No. 97, Plot No. 231 and 235, P.S. Kotwali, District Nadia. The petitioner filed a writ petition being W.P. No. 5940(W) of 2004 (Smt. Puspa Rani Deb-versus- The Krishnanagar Municipality), on the basis of sport enquiry was made by Krishnanagar Municipality on 12.05.2010. The enquiry report was submitted stating inter alia that during physical survey and consulting with Mouza Map our Technical staff observed that Manju Rudhra Biswas did not follow the municipal Building Rules and near about 182 Sq.ft. of land belongs to Puspa Dev has already been encroachment from the end of Manju Rudhra Biswas. 4. The petitioner has repeatedly requested to the then Chairman, Krishnanagar Municipality to pass reason order on the basis of enquiry report on 31.05.2010, all were in vain. 5. On the other hand, the respondent no. 6 Manju Rudra Biswas wife of late Saroj Kumar Rudra Biswas of 4 Beltalbazar Lane, 3 P.O.Gruni, P.S. Kotwali, District: Naida, Pin-741103 has started further construction in southern side of my land in the year 2004 at Mouza:- Sandhya, J.L. No. 97, Plot No. 233 and 234, P.S. Kotwali, District: Nadia to encroach my drainage system thereon. 6. The petitioner made a representation stating inter alia that to take necessary step to stop unauthorized construction and to demolish the illegal unlawful construction of Mouza: Sandhya, J.L. No. 97, Plot No. 233 and 234, P.S. Kotwali, District Nadia which was made by one Manju Rudra Biswas wife of late Saroj Kumar Rudra Biswas of 4, Beltalbazar Lane, P.O. Gruni, P.S. Kotwali, District Nadia, Pin-741103 as per report dated 31.05.2010 immediately. 7. The said representation dated 25.06.2019 has not yet disposed of by the respondent authority, on the other hand the respondent no. 6 has been continuing construction thereon. 8. Hence the writ petition. 9. The petitioner has relied upon following judgments along with the provision under Section 218 of the West Bengal Municipal Act, 1993. 10. Section 218 of the West Bengal Municipal Act, 1993 is as follows:- 4 “218. Order for demolition or alteration of buildings in certain cases.- (1) If the Board of Councilors is satisfied- (a) that the erection of any building- (i) has been commenced without obtaining sanction or permission under the law, or (ii) is being carried on or has been completed otherwise than in accordance with the particulars on which such sanction or permission was based, or after such sanction or permission has been lawfully withdrawn, or (iii) is being carried on or has been completed in breach of any provision contained in this Act or in the Schedule or in any rules or regulations in this behalf, or (b) that any building or projection exists in violation of any condition, direction or requisition lawfully given or made under this Act or the rules or the regulations made thereunder, or (c) that any material alteration of, or addition to, any building has been commenced or is being carried on or has been completed in breach of any provision contained in this Act or the Schedule or in any rules or regulations in this behalf, it may, after giving the owner of the building a reasonable opportunity of being heard, make an order directing that such erection, alteration, addition or projection, as the case may be, or so much thereof as has been executed unlawfully, be demolished or altered and, upon such order, it shall be the duty of the owner to cause such demolition or alteration to the satisfaction of the Board of Councilors within such period as may be fixed in this behalf. In default, such erection, alteration, addition or projection, as the case may be, may be demolished or altered by the Board of Councilors at the expense of the said owner. (2)The procedure relating to the opportunity of hearing to be given to the owner of the building under sub-section (1) shall be such as may be prescribed. (3)An appeal against an order made by the Board of Councilors in this behalf shall lie with the [Court having jurisdiction]. (4)[***] [[Omitted by West Bengal Act 13 of 1995 w.e.f 5.9.1995, which stood earlier as under :(4)The 5 order or the Tribunal shall be final and conclusive and shall not be questioned in any court of law.]]. (5)Notwithstanding anything contained in the foregoing provisions of this section or elsewhere in this Chapter, if the Chairman-in-Council is of opinion that immediate action is necessary in respect of any building being constructed, or any work being carried on, in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith.” 11. The following judgments are relied upon by the petitioner:- i. Dipak Kumar Mukherjee -vs- Kolkata Municipal Corporation and Others, reported in (2013) 5 SCC 336 (Para no. 8 and 9). ii. Kali Prasad Shaw –vs- The Board of Councillors of Baranagar Municipality and Anr. (CO 1964 of 2022, para 12 and 16) Calcutta High Court. 12. During course of hearing, the respondent municipality filed the report in the form of affidavit annexing a copy of the inspection report dated 18.11.2019. 13. Exception to the report has been filed by the private respondent denying the said report and its validity. 14. The report as filed by the municipality is as follows:- “In compliance of the Hon’ble High Court Order dated 11.11.19 an inspection has been made by the technical staff of the Krishnanagar Municipality on 18.11.2019 at 12.00 Noon. As per previous report the employee of Krishnanagar Municipality again physical measurement was done in presence of Puspa Rani Dev but none was present on behalf of Manju Rudra Biswas. 6 It is a fact that during the physical survey and consulting with Mouza Map, our Technical staff observed that Manju Rudra Biswas did not follow the municipal building rules and near about 182 Sq.Ft. of land belong to Puspa Dev has already been encroached from the end of Manju Rudra Biswas. This is for your kind information. Sd/- ADMINISTRATOR KRISHNANAGAR MUNICIPALITY.” 15. It appears from the materials on record that the dispute in the present case is continuing since 2010. 14 (fourteen) long years have passed but no relief has been received by the petitioner herein, in spite of previous reports of the municipality that there has been violation of municipality Building Rules by the private respondent herein. Thus, there has been total inaction on the part of the municipality. 16. In Writ Petition (Criminal) No. 162 of 2022 and Writ Petition (Civil) No. 328 of 2022, the Supreme Court passed directions in the matter of demolition of structures. The Court held:- “90. In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. We are 7 further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period. 91. At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law. A. NOTICE i. No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days’ time from the date of service of such notice, whichever is later. ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question. iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice. iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate. The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today. v. The notice shall contain the details regarding: a. the nature of the unauthorized construction. b. the details of the specific violation and the grounds of demolition. 8 c. a list of documents that the noticee is required to furnish along with his reply. d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place; vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available. B. PERSONAL HEARING i. The designated authority shall give an opportunity of personal hearing to the person concerned. ii. The minutes of such a hearing shall also be recorded. C. FINAL ORDER i. Upon hearing, the designated authority shall pass a final order. ii. The final order shall contain: a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof; b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor; c. if the designated authority finds that only part of the construction is unauthorized/noncompoundable, then the details thereof. d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available. D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER. i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated above. ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 9 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished. iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas. E. PROCEEDINGS OF DEMOLITION i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved. ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal. 92. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us. 93. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution. 94. The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages.” 17. Keeping with the guidelines of the Supreme Court in re:- demolition of structures (Supra), it is directed that the respondent/municipality shall take necessary steps as per their report for demolition of the unauthorized thus illegal construction made by the respondent no. 6 to the extent of about 182 Sq. ft. of land which belongs to the petitioner 10 herein, without following municipal building rules within 30 days from the date of this order with prior notice to the parties to vacate the portion to be demolished. 18. The total process of demolition to be video graphed. 19. WPA 16205 of 2019 is allowed. 20. All connected applications, if any, stand disposed of. 21. Interim order, if any, stands vacated. 22. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities. ( Shampa Dutt (Paul), J. )