1. Unauthorized shop rooms on public road — Obstruction of egress and ingress — Petition for demolition and removal. (Para 1 , 2 , 3 , 4 )
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2025 Supreme(Online)(Cal) 5763
CALCUTTA HIGH COURT
Shampa Dutt (Paul), J
GOUTAM SAHA – Appellant
Versus
STATE OF WEST BENGAL & ORS – Respondent
WPA 6087 / 2018
Advocates:
For the Appellants/Petitioners: Kallol Basu, Farhan Ghaffor, Zahaib Rauf
For the Respondents: Rahul Karmakar, Sourav Guhaith, Alak Kr. Ghosh, Arijit Dey
For the Appellants/Petitioners: Kallol Basu, Farhan Ghaffor, Zahaib Rauf
For the Respondents: Rahul Karmakar, Sourav Guhaith, Alak Kr. Ghosh, Arijit Dey
The court directed the municipal authority to remove unauthorized roof-level projections on a public road after official inspection reports confirmed that while ground-level encroachments were cleared, structural projections still existed.
Headnote:(A) Municipal Law - KMC Act, 1980 - Section 400(1) - Unauthorized construction on public road - Request for demolition of illegal shop rooms obstructing access to private property - Municipal authority reports indicating ground-level structures were removed but projected tin shades at roof level persist - Reliance on physical inspection reports and survey maps - Direction for removal of remaining projections. (Paras 12, 20 and 23)
Facts of the case:
A co-owner of a property alleged that unauthorized shop rooms were constructed on a public road and footpath, obstructing access to the residence. Despite prior litigation and partial demolition by the municipal authority, the petitioner claimed that illegal constructions continued. The municipal corporation conducted multiple inspections and filed reports stating that while no ground-level encroachment was found on the recorded road width, projected tin sheets at the roof level of the shops were still present.
Findings of Court:
The court observed that the reports from the municipal corporation, backed by physical verification and survey records, established that the shopkeepers had removed the ground-level constructions. However, the evidence, including photographs and official reports, confirmed that projected tin shades at the roof level remained in existence.
Issues: Whether the remaining projected tin shades at the roof level of the structures constitute an unauthorized encroachment on the public road that requires removal by the municipal authority.
Ratio Decidendi: Where a municipal authority's physical inspection and record-based survey confirm that ground-level encroachments have been cleared but roof-level projections continue to exist on a public road, the court shall direct the said authority to remove those remaining unauthorized projections to ensure the road is free of obstructions.
Result: Writ application disposed of with a direction to the municipal corporation to remove the tin shades at the roof level within 30 days; petitioner granted liberty to approach appropriate authorities for land not under the municipal corporation's domain.
Legal Category Hierarchy
- administrative law
- practice and procedure
- property law
Table of Contents
2. Petitioner claims unauthorized construction on public land; respondents rely on disputed questions of fact unsuitable for writ court. (Para 2 , 3 , 4 , 5 , 8 , 9 , 16 , 17 )
3. KMC reports confirm only tin roof projections remain at roof level; no ground-level encroachment on recorded road found. (Para 18 , 19 , 20 , 21 , 22 )
4. Writ court may decide based on municipal reports of physical inspection when factual disputes are minimal and documented. (Para 18 , 20 , 21 , 22 , 24 )
5. Writ disposed — KMC directed to remove tin shades within 30 days; liberty to approach appropriate authority for other relief. (Para 23 , 24 , 25 )
6. Can a writ court decide disputed questions of fact regarding encroachment on public road?
Yes, when the municipal corporation's physical inspection reports resolve the factual disputes, the writ court may act on those findings. (Para 18 , 20 , 21 , 22 , 24 )
7. What is the standard of proof required for an alleged encroachment on public property in a writ petition?
The court relies on official reports of joint inspection by municipal authorities; photographs alone may be insufficient if contradicted by such reports. (Para 18 , 19 , 20 , 21 , 22 )
8. What remedy is available when encroachment is on land partly outside the municipal corporation's jurisdiction?
The petitioner is at liberty to approach the appropriate authority, such as the PWD, for relief regarding land not within KMC's domain. (Para 7 , 24 )
Shampa Dutt (Paul), J.;
1. The writ application has been preferred praying for directions upon the respondents to demolish the unauthorized, illegal parts of the 9 nos. of shop room constructed in front of B-34/1, Bapuji Nagar, Raja S.C. Mullick Road, Kolkata-92 and to remove obstructions from in front of the petitioners house to have the free access from the public road to his house and to enjoy his property freely and peacefully with his family members.
2. The petitioner's case is that he is a co-owner of the property in dispute in this case which was settled upon the petitioners predecessors by the Government of West Bengal by a letter of authorization being no. 848 RC (DEV) dated 15.10.1966 to occupy plot no. E-1292. The predecessors of the petitioner then on building on the said plot of land, started residing therein. It is stated that subsequently the State decided to give the property alongwith homestead land, hereditaments and premises to the father of the petitioner on 02.12.2002.
3. It is the case of the petitioner that some temporary structures, nine in numbers were erected on the public road in front of the petitioner's house, obstructing the egress and ingress to and from the petitioner's house despite protest by the petitioner's father.
4. Subsequently, the temporary structures were converted into pucca structure with tin shed roof in the shape of shop rooms. Subsequently, four more pucca new shop rooms with tin shade were constructed by obstructing the public road/footpath and in spite of several complaints to the authority concerned, no action has yet been taken.
5. The petitioner then approached several authorities for removal of the said obstruction and unauthorized encroachment of the said nine pucca shop rooms which were severely affecting the petitioner's life in his house.
6. The petitioner then preferred a writ application alongwith a contempt application bearing nos. WP 15574 (W) of 2017 and CPAN 1392 of 2017. The High Court while disposing of all the above applications including the writ applications was pleased to pass an Order in Writ Petition being Number W.P.15574(W) of 2017, as set out hereunder:-
"By consent of the parties, the Writ Petition is treated as on day's List and is taken up for consideration.
Learned Advocate appearing for the Private Respondents submits that, the Undertaking recorded on October 25, 2017 be suitably modified to read that the Private respondents will not construct any further save and except if permitted by law to do so. Such request being reasonable, is accepted. The Undertaking recorded is modified accordingly.
In view of the directions and observations made therein is no point in keeping the writ petition pending."
7. Subsequently, in pursuance of the High Court's Orders passed from time to time, the Corporation in presence of the Police Authorities, demolished part of the nine illegal and unauthorized shop rooms on the public road, leaving other part untouched, claiming that it was within the jurisdiction of the PWD, Govt. of W.B.
8. It is stated that the encroachers, the respondents herein went ahead to cast concrete roof and the petitioner was compelled to file the contempt proceedings. In spite of giving an undertaking before the Court not to make further constructions, the respondent encroachers continued to construct permanent structures over the parts not demolished, without any sanction and there was total inaction on the part of authorities being the Corporation and the Officer-in-Charge of Jadavpore Police Station.
9. The petitioner then filed a representation dated 17.01.2018 but no adequate steps or action was taken on such representation.
10. During the course of hearing of the writ application, the Kolkata Municipal Corporation has filed several reports and exceptions to such reports are on record. Parties have also filed their written notes and affidavits, as directed.
11. In the report dated 07.01.2023 filed by the Kolkata Municipal Corporation it i
