Form No. J(2) Sl. No. 18 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Before: THE HON’BLE JUSTICE RAJA BASU CHOWDHURY WPA 12195 of 2026 Soumen Mondal & Ors. Vs. The State of West Bengal & Ors. For the Petitioners : Mr. Uday Sankar Chattopadhyay, Adv. Mr. Suman Sankar Chatterjee, Adv. Ms. T. Rakshit, Adv. Ms. A. Datta, Adv. Ms. B. Chakraborty, Adv. Ms. S. Parveen, Adv. Ms. S. Banerjee, Adv. For the State : Mr. Nilanjan Bhattacharjee, Sr. Adv. Mr. Dibashis Basu, Adv. Mrs. Sarda Sha. Adv. Hearing Concluded on : 30th June, 2026. Judgment on : 30th June, 2026. RAJA BASU CHOWDHURY, J.: 1. Challenging a communication dated 22nd May, 2026 passed by the Chairman, Arambagh Municipality the instant writ petition has been filed. According to the petitioners, the petitioners upon obtaining a sanctioned building plan from the municipality in respect of the B+G+2 storied commercial building on R.S. Plot No. 138 and 133/447, L.R. Plot No. 331, 2 Mouza – Arambagh, J.L. No. 34, Ward No. 14, Holding No. 302 had proceeded with the construction work. According to the petitioners, on 23rd December, 2025, the Assistant Engineer (PWD), Hooghly, Sub- Division – I, Arambagh, Hooghly being respondent no. 8 issued a notice to the petitioner for removal of the encroachment as per Section 10 (1) of the West Bengal Highways Act, 1964 (hereinafter referred to as the ‘said Act’). The said notice was followed by a further notice dated 26th December, 2025 issued by the respondent no. 8 under Section 10(1) of the said Act. From the aforesaid notice it transpires that an allegation of illegal construction has been made by encroaching the highway land being L.R. Plot No. 118, R.S. Plot No. 459, Mouza – Arambagh and accordingly a 12 days’ period had been provided to remove the same. 2. The petitioner no. 1 had subsequently made a representation dated 29th December, 2025 before the respondent no. 8 stating, inter alia, that the petitioner had started construction only after consultation with the surveyor. According to the surveyor’s report, there is no encroachment in the highway. The petitioner accordingly prayed for joint survey in presence of the surveyor appointed by both the parties. It was further stated in the representation that in the event the joint survey reveals any encroachment, the petitioner shall remove the same at their own cost. Following the aforesaid, on 9th January, 2026 the Sub-Divisional Magistrate being respondent no. 7 had issued a notice being Memo No. 66/PWD under Section 10(3) of the said Act. Subsequently, on 11th 3 February, 2026 the respondent no. 7 after hearing the parties had issued the following directions. To more fully appreciate the directions dated 11th February, 2026 the same is extracted hereinbelow. “Upon consideration of the joint inspection report and submissions made, it is hereby ordered as follows: 1. In view of the findings of the joint inspection report, whereby a portion of the ongoing construction has been identified as encroachment upon highway land, the owners/proprietors of the said construction are hereby directed not to proceed with any construction work upon the alleged encroached portion of highway land until further orders. 2. The owners of the building under construction are directed to submit a copy of registered deed for the L.R Plot No. 331, J.L. No. 34, Mouza Arambagh on which the building is under construction positively within 25.02.2026 to the office of the undersigned. 3. As the field inspection report from the Arambagh Municipality is still awaited, the Chairman, Arambagh Municipality is hereby directed to conduct a spot enquiry within 10 (ten) days from the date of receipt of this order on the following points: a) Whether the required open spaces and other applicable provisions under the W.B. Municipality (Building) Rules, 2007 are being complied with in respect of the ongoing construction in question. A copy of Part IV, Clause 50 of the W.B Municipality (Building) Rules, 2007 is being attached with this order copy for your ready reference. b) Whether the ongoing construction is being carried out strictly in accordance with the sanctioned building plan approved by the Municipality. 4. The Chairman, Arambagh Municipality shall submit the enquiry report to the office of the undersigned positively on or before 25.02.2026. 5. The D.A. shall issue the next hearing notice immediately upon receipt of the said report from the Chairman, Arambagh Municipality. Let a copy of this order be served upon all concerned forthwith. Sub-Divisional Magistrate, Arambagh” 4 3. Following the aforesaid on 08th May, 2026 respondent no. 7 had issued a notice to the petitioners under Section 10(3) of the said Act and directed the petitioners to appear on 15th May, 2026. The petitioners would submit that though they were present on the said date, no hearing took place. Subsequently, during pendency of the Misc. Case under Section 10(3) of the said Act before the Sub-Divisional Magistrate, Arambagh, the Chairman, Arambagh Municipality being respondent no. 5 had issued the impugned memo which forms the subject matter of the challenge. Learned advocate for the petitioner submits that he had no jurisdiction to issue the same as the matter at present is pending before the Sub-Divisional Magistrate. 4. Having heard the learned advocates for the respective parties and though the municipality remains unrepresented, I find from the impugned memorandum that a joint inspection had been carried out. The petitioner had duly participated in such joint inspection. As per the observations made by the Chairman, it would transpire that in terms of the sanctioned building plan issued by the municipality dated 27th April, 2023 the petitioners were required to maintain a front open space of the building to the extent of 4 meters from Arambagh to Burdwan Road. On physical inspection it was found that the front side of one of the corners of the proposed building provides for only 0.60 meters clearance from the PWD property line. This apart, it also appears that though as per the approved 5 drawing the proposed ground floor cover area was 445 square meters, but on physical measurement the same was found to be 535 square meters. 5. Accordingly, it is clear that there is unauthorized construction, at least the memorandum identifies the same. The petitioners have not responded to the said memorandum and have submitted that the construction is going on in accordance with law. Though this matter was entertained by an order dated 29th May, 2026 passed by the vacation bench, and a stay was granted, however, today this Court finds that the petitioner on one hand has transgressed upon the State’s property and on the other has also carried out illegal construction. The construction on the basis of the disclosure made in the memorandum is not in accordance with the sanctioned building plan. Simply because a proceeding is pending before the respondent no. 7, the same, in my view, cannot impinge on the rights of the municipality to deal with the issue of illegal construction. A notice has already been issued by the Chairman. However, having regard to the fact that a case of illegal and unauthorized construction has been made out, I am of the view that the municipality must initiate a proceeding under Section 218 of the West Bengal Municipal Act, 1993 and conclude the same on an expeditious basis. 6. Pending consideration by the municipality and by the respondent no. 7, no further construction shall be carried out by the petitioners at the locale. Police authorities are directed to ensure that no construction is carried out and the illegal construction, if any, shall abide by the decisions 6 to be taken by the municipality. Insofar as illegal construction is concerned as to the extent the same encroaches upon the State property, the order passed by the respondent no. 7 shall be final and binding. 7. Since no affidavits have been called for from the respondents, the allegations made in the writ petition are deemed not to have been admitted by the respondents. 8. With the above directions, the writ petition stands disposed of. 9. There shall be no order as to costs. 10. 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.)