07.09.2026 sl.19 Ct No. 446 tkm WPA 8076 of 2026 Papia Ghosh & Ors. Vs State of West Bengal & Ors. Mr. Siva Prosad Ghose …for the petitioners Mr. Tapas Kr. Bhattacharya Mr. A Bhattacharyya …for respondent no. 6 Mr. Ajit Kr. Mishra …for the State 1. The present writ petition has been filed praying for the following relief: “A writ of and/or writs in the nature of mandamus be issued commanding the respondent nos. 2 and 3 i.e municipal authorities to dismantle and/or demolish the residential flat on the fifth floor i.e. upon the 4th floor being flat no. 6/A and overhead tin shed measuring 900 sft. in the said G+4 storied building namely „Mahamaya Apartment‟ constructed over the property in CS Khatian no. 202, RS Khatian no. 399, corresponding to LR Khatian no. 746 being holding no. 69/9, Ghoshpara Road in ward no. 12, within the Khardah Municipality Kolkata -700118.” 2. Mr. Ghose, learned Advocate for the petitioners, submits that the petitioners are some of the flat owners. They submitted a representation before the Kharda municipality alleging that the fourth floor has been 2 constructed illegally in violation of the sanctioned plan and without obtaining necessary permissions from the competent authority. He submits that, upon receipt of such representation from the petitioners, an inspection was held by the competent authority of the municipality and it was detected that an illegal and unauthorized construction was made on the fourth floor of the building beyond the sanctioned plan. Accordingly, the Chairman of the municipality issued an order to the respondent no. 5 directing him to dismantle the unauthorized construction within the time specified therein. However, despite receipt of notice and even after expiry of the period specified in the notice no effective steps have been taken by the private respondent to dismantle the unauthorized construction. He submits municipality was brought to the notice of such failure on the part of the respondent no. 5 to dismantle unauthorized construction and the municipality was required to take consequential action. However, the municipality did not take steps for dismantling the unauthorized construction and recover the cost of such construction from the occupier or the person responsible for such unauthorized construction. He submits that municipality be directed to take appropriate steps to dismantle the unauthorized construction. 3. Mr. Bhattacharya, learned Advocate for the private respondents, vehemently opposes the contention raised by the petitioner. He submits that, the Chairman alone issued 3 the order directing the respondent no. 5 to dismantle the unauthorized construction. However, he cited a decision reported in 2007 4 CHN 394 (Madan Mohan Pal & Anr. vs .State WB & Ors.) and submits that section 218(1) of the 1993 Act authorizes the board of councilors only to pass the order of demolition after following the procedure prescribed in section 218(1). However, the Chairman has unilaterally exercises the power and therefore, such demolition order cannot be sustained in the eye of law. He submits that, a civil suit is also pending regarding the self same building. 4. In response, learned advocate for the petitioners submits that in the civil suit, question of right, title and interest of one flat located in the 5th floor of the building is involved. 5. Heard the learned advocates for the parties and perused the materials on record. Undisputedly, the present petitioner made a complaint of unauthorized construction made on the fourth floor of the said building. The order issued by the Chairman prima facie suggests that upon inspection, the municipality arrives at a conclusion that there was an unauthorized construction and accordingly, an order was passed. However, a co-ordinate Bench of this court stated that power to issue demolition order is vested with the board of councilors and the chairman cannot alone exercise such power. 4 6. I do not fine any reason to disagree with the said decision. Therefore, the order of the chairman is set aside. 7. The chairman of the municipality is directed to place the application dated 6.1.2026 submitted by the petitioner and some other persons before the board of councilors and the board of councilors shall cause an inspection on the fourth floor of the building and ascertain whether any construction was made illegally without obtaining any sanction or permission from the corporation or otherwise in violation of the applicable building rules. 8. Such inspection shall be conducted in presence of the petitioner and the private respondent. If upon inspection, it is found that there is an illegal construction, the municipality shall take appropriate steps in accordance with law. 9. It is made clear while underrating such exercise, municipality shall confines itself strictly to the aspect falling within its municipal jurisdiction and shall not enter into or adjudicate any question relating to title, ownership or any other civil rights of the parties to the suit which the matters falls within the jurisdiction of the court where the suit presently pending for final adjudication. 10. However, the municipality shall not undertake any exercise for determining right title and interest of the parties of the property in question. 11. Entire exercise shall be carried out within a period of eight weeks from the date receipt of the copy of this order. 5 12. With the aforesaid observation, the present writ petition is disposed of. (Partha Sarathi Chatterjee, J.)