1. Writ petition seeking demolition of unauthorized shop rooms constructed on public road obstructing access to petitioner's house. Prior proceedings and orders for removal of encroachments. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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2025 Supreme(Online)(Cal) 8283
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 Gughait, Alak Kr. Ghosh, Arijit Dey
For the Appellants/Petitioners: Kallol Basu, Farhan Ghaffor, Zahaib Rauf
For the Respondents: Rahul Karmakar, Sourav Gughait, Alak Kr. Ghosh, Arijit Dey
The court directed the municipal authority to remove unauthorized projected roof shades on a public road, relying on inspection reports that confirmed ground-level encroachments were cleared but roof-level obstructions persisted.
Headnote:(A) Municipal laws - Unauthorized construction - Removal of illegal structures on public road/footpath - Direction to municipal authority for demolition of projected roof shades. (Para 23)
(B) Writ jurisdiction - Adjudication of encroachment - Reliance on reports filed by municipal authorities regarding physical verification of site. (Paras 12, 20, 22)
Facts of the case:
The petitioner, a co-owner of a property, sought the removal of unauthorized shop rooms constructed on the public road in front of the house, which obstructed access. It was alleged that temporary structures were converted into permanent ones despite previous court orders and undertakings. The municipal corporation conducted inspections and reported that while ground-level encroachments on the recorded road width had been removed, some projected tin sheets at the roof level remained. The petitioner contested the reports, claiming they were based on incorrect maps and failed to account for the correct street alignment.
Findings of Court:
Physical verification and reports from the municipal corporation established that no construction exists at the ground level on the recorded road. However, projected portions of tin shades at the roof level of the shops were found during joint inspection, which was supported by photographic evidence.
Issues: Whether the alleged unauthorized shop rooms still obstruct the public road and whether the municipal authority should remove the remaining projected roof shades.
Ratio Decidendi: Where reports from the concerned municipal authority and photographic evidence confirm the removal of ground-level encroachments but the persistence of projected roof shades, the municipal authority must be directed to remove such remaining unauthorized structures to clear the public way.
Result: Writ application disposed of with a direction to the municipal corporation to remove the tin shades at the roof level within 30 days, and the petitioner is at liberty to approach the appropriate authority regarding land not within the municipal corporation's domain.
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2. Petitioner alleges continued illegal construction and municipal inaction; respondents deny encroachment and assert disputed questions of fact requiring civil court adjudication. (Para 7 , 8 , 9 , 16 , 17 )
3. Based on physical inspection and municipal reports, only tin roof projections exist; ground-level shops removed. Petitioner's photographs insufficient to establish encroachment. (Para 18 , 19 , 20 , 21 , 22 )
4. Writ court can rely on official inspection reports to determine factual existence of encroachment; absence of ground-level construction on recorded road negates claim of unauthorized shops. (Para 20 , 22 )
5. Writ petition disposed of; Municipal Corporation directed to remove tin shades within 30 days; petitioner may approach appropriate authority for other land encroachment issues. (Para 23 , 24 , 25 )
6. Can a writ court decide disputed questions of fact regarding encroachment on public land?
Yes, when official inspection reports and physical verification clearly establish the factual position, the court can rely on them to determine the existence of encroachment without remitting to civil court. (Para 18 , 19 , 20 , 21 , 22 )
7. What is the evidentiary value of official reports and photographs in determining encroachment?
Official reports from municipal authorities based on joint inspection are given greater weight over mere photographs presented by the petitioner, especially when the reports are consistent and show no ground-level construction. (Para 18 , 19 , 20 , 21 , 22 )
8. When is a writ petition for demolition of encroachments maintainable?
A writ petition is maintainable when the encroachment is on public land and municipal authorities fail to act despite complaints, but it is not maintainable if the land status is disputed and requires adjudication by a competent court. (Para 17 , 24 )
9. What is the role of the court when the municipal report indicates partial removal of encroachment?
The court can direct removal of the remaining encroachment as identified in the report, and if part of the land is not within the municipal corporation's jurisdiction, the petitioner may approach the appropriate authority. (Para 23 , 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 infront 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 is s
