W. P. O. No.

of 2023

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

In the matter of:

An application under Article 226 of

the Constitution of India;

And

In the matter of:

1. SMT. ITU CHANDRA, Wife of Late

Bijoyananda Chander;

2. SMT. DOLA CHANDRA

3. SMT. KOYELI BANERJEE

Both Petitioners No. 2 and 3 are

daughters of Late Bijoyananda

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Chander and all are residing at

No. 9D, Ramchand Ghosh Lane,

P.S. Burtolla, Kolkata- 700006,

Ward NO. 18 of K.M.C.

… Petitioner

Versus

1. Kolkata Municipal

Corporation, a statutory body

within the meaning of the Kolkata

Municipal Corporation Act, 1980,

service through the Mayor, having

its office at 5, S N Banerjee Road,

Kolkata 700013.

2. Municipal Commissioner, The

Kolkata Municipal Corporation,

having his office at 5, S N

Banerjee Road, Kolkata – 700013

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3. The Executive Engineer

(Building Department) Borough:II,

Kolkata Municipal Corporation,

79, Bidhan Sarani, Kolkata-

700006

4. The Assistant Engineer (Civil),

Building Borough:II, Kolkata

Municipal Corporation, 79, Bidhan

Sarani, Kolkata-700006

5. The Executive Engineer (C),

Project Manager Unit, Kolkata

Municipal Corporation, 48, Market

Street, Kolkata- 700087

6. SRI VIVEKANANDA CHANDRA

son of Bimalananda Chandra

residing at 10, Ramchand Ghosh

Lane, P.S. Burtolla, Kolkata-

700006.
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….Respondents

To,

The Hon’ble Mr. T. S. Sivagnanam, Acting Chief Justice and His

Companion Justices of the said Hon’ble Court.

The humble petition on behalf of

your petitioner above named most

respectfully

Sheweth:

1. That your petitioner is a bona fide and law abiding citizen

of India residing in Premises No. 9D, Ramchand Ghosh

Lane, P.S. Burtolla, Kolkata- 700006, Ward NO. 18 of

K.M.C. being used exclusively for residential purpose.

2. The respondent No. 1 is a body corporate with perpetual

succession and a common seal. The respondent No. 1 is

formed constituted and created by the Kolkata Municipal

Corporation Act, 1980. The respondent No. 1 is thus a

creature of the statute. The respondent Nos. 2 and 3 are

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the principal officers of the respondent No. 1. The

respondent Nos. 1, 2 and 3 are all “State” and/or its

agents and/or instrumentalities coming within the scope,

purview and ambit of Article 12 of the Constitution of

India. The acts, action and inaction on the part of the

respondent municipal authorities are, therefore, subject to

judicial scrutiny and review. The respondents are all

amenable to the writ jurisdiction of this Hon’ble Court.

3. That your petitioners state that one Nityanand Chunder

was the original owner of the land and building of 10,

Ramchand, Ghose Lane, P.S. Burtolla, Kolkata-700006 and

he died on March 09, 1965, after bequeathed, by Will his

movable and a movable properties among his six sons,

namely, Nirmalanandra Chander, Bimalanada Chandur,

Amalanada Chander, Dhirananda Chandra, Gitananda

Chandra and Bijoyananda Chander, respectively.

Subsequently, after grant of probate, the said Gitananda

Chandra, sold his share among his other brothers.

Accordingly, aforesaid, five sons, namely, Bimalanada

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Chandur Amalanada Chander, Dhirananda Chandra,

Gitananda Chandra and Bijoyananda Chander of the said

Nityanand Chunder became Joint Owner of aforesaid

properties.

4. That your petitioners state that for better enjoyment of the

ancestral property, the aforesaid five brothers by a

registered deed of partition dated January 06, 1994 partition

to the entire property into five lots and the father of the

petitioners No.2 and No. 3, namely, Bijoyananda Chander got

Lot “E” comprising off two storeyed brick built messuage

tenement land measuring 15 chittacks 10 square feet, which

is butted and founded as follows:

On the north: By Zariff Lane, On the East: By 7/B Zariff Lane,

On the South: By Lot ‘D’ and On the West: Partly by Lot ‘A’

and Partly by Lot ‘B’.

It is pertinent to mention that the said Bijoyananda Chander

died leaving behind the petitioners as his legal heirs and

successors and the Kolkata Municipal Corporation allotted

Assessee bearing number 110182300822 to the petitioners.

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Photocopy of the Assessment record in the names of the

petitioners and Deed Plan annexed hereto and marked with

the annexed sure P-1.

5. That your petitioner state that do the contiguous west of

the land of the petitioners, the Lot ‘A’ of the aforesaid

partition property was allotted to Bimlananda Chandur

measuring one cottah two Chittacks twenty four square

feet which is butted and bounded as follows:

On the North: By Zariff Lane, On the East: By Lot B, On the

South: Lot B, On the West: By Ram Chandra Ghosh Lane.

Be it mentioned that after the death of Bimlanada

Chandur, his son Vivekananda Chandra who is Respondent

No. ?, herein became owner of lot A, as aforesaid, which is

Premises No. 10A, Ramachandra Ghose Lane, Kolkata-

700006, presently under Ward No. 18 of the Kolkata

Municipal Corporation.

6. That your petitioners state that Respondent No. 6,

obtained a sanction plan vide reference No.

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15/E.E(C)/Bidg/Br.II/2021-2022 dated 11.12.2021 of his Lot

‘A’ as aforesaid. However, the said respondent No. 6 by

deviating the aforesaid sanctioned plan erected further

two storeyed over the existing structure illegally and on

the western side of the petitioners premises causing

damage to the petitioners portion, caused obstruction of

free, air and light and for such unauthorised erection of

pillar, the petitioners are facing great difficulties to open

the window of the big room of the first floor. Both the said

western side windows of the room in question are the only

source of free air and light. There is no other window or

ventilators on the eastern side wall and South side wall of

the aforesaid big room of the first floor. The petitioners are

facing problems to take free air or to inhale oxygen in the

side room due to such illegal activities caused by Sri

Vivekananda Chandra. The family of the respondent are

also using the newly constructed area on the first floor,

disrupting the privacy of the petitioners. The illegal

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construction has also encroached on some portion of the

common passage illegally.

7. That the petitioner state that the mutation for the

Premises No. 10A, Ramchand Ghosh Lane was granted on

05.01.2005 after which the Respondent No. 6 demolished

the old structure in its entirety and rebuilt a new building

up from the ground under a “ Renovation Permit” not

leaving any permissible space between the walls of 10A

and 9D Ramchand Ghosh lane which is absolutely illegal

as per Kolkata Municipal Corporation Building Law.

Respondent No. 6 further extended the walls of his

dwelling unit towards Zariff Lane on the North beyond

permissible limit and encroached up to 40 sq.ft. of the

Public property under KMC causing irreparable obstruction

to the egress and ingress of the Petitioner’s property.

8. That the Petitioners state that Petitioner No. 1 is a senior

citizen foe whom it would be impossible to get emergency

medical help as any medical facility like stretcher cannot

be brought to 9D Ramchand Ghosh Lane’s entrance due to

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the illegal construction done by Respondent No. 6 leaving

no reasonable space between their walls causing extreme

distress and anxiety to Petitioner No. 1’s daughters

( Petitioner No. 2 & 3) in case something untoward

happens in future which needs to be addressed

immediately.

9. That the petitioner state that the Respondent No. 6 has

been ongoing the illegal construction even after the

residents of Premises No. 10, Ramchand Ghosh Lane which

is butted and bounded in the East have lodged a complaint

before the appropriate forum and also filed a writ petition

before the Hon’ble High Court, Kolkata. In spite of that, the

men and masons are coming regularly at their premises to

finish the unauthorised construction. Therefore,

Respondent No. 6 violated all the K.M.C Rules and

Regulations as per the new construction is concerned and

also violated their renovation permission.

10. That the petitioner state that Respondent No. 6 has

applied to KMC to build a Puja Room in the illegal

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constructed 2- bedroom second floor of Premises No. 10A,

Ramchand Ghosh Lane and a permit was even issued by

the authorities which should not have been possible for

said illegal structure as it violates the Building Rules of

KMC. As per the Building law the area of the new

construction should not exceed 25% of the land area i.e.

25% of 830.22 sq.ft. which is 207.555 sq.ft. but the

Respondent No. 6 illegally took the entire floor to build the

2 bedroom apartment which is blocking free air and light

of 9D, Ramchand Ghosh Lane and also invading their

privacy.

11. That the petitioner state that accordingly the petitioners

through a Learned Lawyer submitted on 28.08.2022 raised

objection before the Executive Engineer (Building

Department) by their letter dated 28.08.2022 for aforesaid

illegal construction and requested him to take step on urgent

basis but no step has been taken.

Photocopy of the objection dated 28.08.2022 is annexed

hereto and marked with the Annexure P-2.

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12. That your petitioners State that the petitioner through a

Learned Lawyer also submitted said letter to the Assistant

Engineer (Building Department) dated 27.08.2022.

Referring to Annexure P-2.

13. That your petitioners state that the petitioners through a

Learned Lawyer further raised objection on 27.08.2023

before the Commissioner of Kolkata Municipal Corporation,

Executive Engineer (Building Department) and The Assistant

Engineer (Building Department) by their letter dated

27.08.2023 for the aforesaid illegal construction and

encroachment of common passage and requested again to

take steps on urgent basis but no step has been taken.

Photo copy of the objections dated 27.08.2023 Is annexed

hereto and marked with the Annexure P-3.

14. That your petitioners state that the Section 400 of the

Kolkata Municipal Corporation Act, 1980 provides that

where the erection of any building or the execution of any

work has been comment or is been carried on or has been

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completed without or contrary to the sanction referred to

in Section 396 or in contravention of any of the provisions

of this act or the rules and regulations made there under

the Municipal Corporation may in addition to any other

action that may be taken under this Act make an order

directing to demolish of such illegal construction.

15. That the petitioners State that the Kolkata Municipal

Corporation (Building) rules has been framed to provide in

details the procedure for building site, submission of

building, plan, site spaces to be left for making

construction et cetera. The petitioners crave leave to refer

to the said rule at the time of hearing to show as to how

the Respondent No.6 is making illegal construction in

violation of the provisions of the Kolkata Municipal

Corporation Act, 1980 and its Building rules. The petitioner

states that the Building rules, provides that the authority

may order for demolition or alteration of any building if it

is satisfied that there is deviation in construction in the

erection of any building.

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16. The petitioner state that in the present case, the

construction of the Respondent No. 6 is illegal and

unauthorised and hence an order of demolition of the

unauthorised construction is warranted. The petitioner

further states that due to this illegal construction, their

privacy has been invaded and they have been deprived of

free, air and light. The petitioner also states that the

Respondent No. 6 having forcefully built two floors on

existing structure makes Rainwater fall onto the

petitioners bedroom since they are on a higher floor

causing major inconvenience in the day to day life.

17. That the petitioners further stated that the entire two

floors over existing building has been constructed in

violation of the provision of the Act, 1980, and the rules

framed thereunder and by deviating from the sanctioned

plan and hence the said building is warranted to be

demolished.

18. That the petitioners states that the Respondents No. 1 and

No. 3 a Statutory Authorities, and they are bound to

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discharge their statutory functions as provided in the Act,

1980. But in spite of proper intimation to them about such

illegality in constructing the building, they have failed to

take proper appropriate action as per the provisions

provided by the Act, and thus they have utterly failed to

discharge their statutory duties.

19. The petitioners state that unless an appropriate order for

restraining the activities to the Respondent No. 6 is given

the petitioners will suffer irreparable loss and injury.

20. That been aggrieved by the inaction of the Respondents

No. 1 and No. 3 how to take steps in accordance to the

provisions of the Act, 1980 against illegal construction

made by Respondent No. 6 in Premises No. 10A,

Ramchand Ghosh Lane, Kolkata- 700006, P.S. Burtolla,

Ward No. 18 of the K.M.C. which is contiguous West of the

petitioners building, the petitioners beg to move your

Lordships under Article 226 of the Constitution of India on

the following amongst other.

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GROUNDS

I. For that the acts, conducts and inaction on the part

of the respondent statutory authorities are palpably

illegal, bad in law and are, therefore have no legal,

right to allow unauthorised construction to

Respondent No. 6.

II. For that the respondent statutory authorities have

shown extreme reluctance and complete

unwillingness to discharge their duties and perform

their functions to make any steps in light of this

illegal construction.

III. For that the Respondent No. 6 obtained a sanction

plan vide reference No. 15/E.E(C)/Bidg/Br.II/2021-

2022 dated 11.12.2021 of his Lot ‘A’ as aforesaid.

However, the said respondent No. 6 by deviating the

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aforesaid sanctioned plan erected further two

storeyed over the existing structure illegally and on

the western side of the petitioners premises causing

damage to the petitioners portion, caused

obstruction of free, air and light and for such

unauthorised erection of pillar, the petitioners are

facing great difficulties to open the window of the big

room of the first floor. Both the said western side

windows of the room in question are the only source

of free air and light. There is no other window or

ventilators on the eastern side wall and South side

wall of the aforesaid big room of the first floor. The

petitioners are facing problems to take free air or to

inhale oxygen in the side room due to such illegal

activities caused by Sri Vivekananda Chandra. The

family of the respondent are also using the newly

constructed area on the first floor, disrupting the

privacy of the petitioners. The illegal construction

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has also encroached on some portion of the common

passage illegally.

IV. For that due to the illegal construction leaving no

permissible space between the properties of

petitioner and respondent the petitioner would face

irreparable damage during medical emergency as no

medical facility like a stretcher would be able to go

through the entrance of petitioners property causing

extreme distress and anxiety as Petitioner No. 1 is a

senior citizen.

V. For that the respondent having forcefully built a two

floors on existing structure the rain fall comes easily

inside the petitioner’s bedroom since they are on a

higher level causing major inconvenience to their

day to day life.

VI. For that no steps and/or action have been taken by

the respondent statutory authorities to take any

step regarding this illegal construction even though

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the petitioners raised objection before them over and

over again.

VII. For that the Section 400 of the Kolkata Municipal

Corporation Act, 1980 provides that where the

direction of any building or the execution of any work

has been comment or is being carried on or has been

completed without or contrary to the sanction

referred to in Section 396 or in contravention of any

of the provisions of this act or the rules and

regulations made there under the municipal

corporation, may in addition to any other action that

may be taken under this act, make an order directing

to demolish of such illegal construction.

VIII. For that the Kolkata Municipal Corporation

(Building) rules, has been framed to provide in

details the procedure for building site, submission of

building plan, side spaces to be left for making

construction et cetera to show as to how the

Respondent No. 6 is making illegal construction in

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violation of the provisions of the Kolkata Municipal

Corporation Act, 1980 and its Building rules.

IX. For that the Building rules, provides that the

authority may order for demolition or alteration of

any building if it is satisfied that there is deviation in

construction in the erection of any building.

X. For that the construction of the Respondent No. 6 is

illegal and unauthorised and forceful and hence an

order of demolition of the unauthorised construction

is warranted.

21. That your petitioner state that the records pertaining to

the present case are lying within the Original Side

Jurisdiction of this Hon’ble Court.

22. That your petitioner further state and submit that there is

no other alternative and/or efficacious remedy other than

the one evoked under Article 226 of the Constitution of

India.
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23. That your petitioner states that they wrote various letters

to the statutory authorities against the Respondent No. 6

about their illegal construction but the said authority is

sitting tight over the issue without taking any necessary

steps.

24. That your petitioner state and declare that your petitioner

have not filed or moved any other writ petition before any

Hon’ble Court on the self-same cause of action.

25. It is therefore just, necessary, expedient and in the

interest of justice that this Hon’ble Court should be

pleased to direct the respondent statutory authorities to

take steps regarding the demolition of the unauthorised

construction.

26. That your petitioner have a very strong prima facie case in

the present matter and the balance of convenience is in

favour of your petitioner and against the respondents.

27. Until and unless orders as prayed for herein below are

made, your petitioner shall suffer irreparable and immense

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loss prejudice and injury.

28. This application is bona fide and made in the interest of

justice.

Your petitioner, therefore, humbly

pray before Your Lordship for the

following reliefs–

a. A Writ of or in the nature of

Mandamus do issue commanding

respondent municipal authorities,

particularly, the respondent No. 1

and 3, and each one of them, their

men, agents, staffs, associates and

subordinates to take steps in

accordance the provisions of the

Kolkata Municipal Corporation Act,

1980 against illegal construction

made by respondent No. 6 on holding

No. 10A, Ramchand Ghosh Lane,

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Kolkata- 700006, Ward No. 18 of the

Kolkata Municipal Corporation, by

encroaching land of petitioners.

b. A Writ of or in the nature of

Mandamus do issue commanding

respondent municipal authorities,

particularly, the respondent No. 1

and 3, and each one of them, their

men, agents, staffs, associates and

subordinates to demolish the illegal

construction made by Respondent

No. 6 on the land of the petitioners

Premises No. 9D, Ramchand Ghosh

Lane, Kolkata- 700006, Ward No. 18

of the Kolkata Municipal Corporation;

c. A Writ of or in the nature of

Certiorari do issue commanding the

respondent authorities to transmit to

this Hon’ble Court all records

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pertaining to the instant case so that

conscionable justice may be done

d. Rule NISI in terms of prayers

above

e. Ad- interim Order of

injunction restraining the respondent

No. 6 from making further

construction on premises No. 10A,

Ramchand Ghosh Lane, Kolkata-

700006, Ward No. 18 of K.M.C.;

f. Such further and/or other order or

orders be passed and/or direction or

directions be given as to this Hon'ble

Court may deem fit and proper as

would afford complete relief to your

petitioner ;

And for this act of kindness, your petitioner as in duty bound,

shall ever pray.

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