1. Writ petition for removal of alleged unauthorized shop room constructions on public road/footpath obstructing access to petitioner's house. (Para 1 , 2 , 3 , 4 )
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2025 Supreme(Online)(Cal) 13362
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 Guchhait, Alak Kr. Ghosh, Arijit Dey
For the Appellants/Petitioners: Kallol Basu, Farhan Ghaffor, Zahaib Rauf
For the Respondents: Rahul Karmakar, Sourav Guchhait, Alak Kr. Ghosh, Arijit Dey
The court held that where municipal reports and evidence confirm ground-level encroachments have been removed but roof-level projections remain, the municipal corporation must be directed to remove those remaining unauthorized projections to clear the public road.
Headnote:(A) Municipal Corporation Act - Section 400(1) - Removal of unauthorized constructions on public road/footpath - Demolition proceedings - Municipal authority's reports on physical inspection are relevant for determining the extent of encroachment (Paras 12, 20).
(B) Writ Jurisdiction - Scope of interference in factual disputes - Court relying on reports of statutory bodies to determine the presence of unauthorized structures (Paras 17-22).
Facts of the case:
The petitioner sought the demolition of unauthorized shop rooms constructed on a public road obstructing access to the petitioner's house. Despite previous court orders and partial demolition by the municipal corporation, it was alleged that permanent structures continued to be erected. Subsequent reports by the municipal corporation indicated that while ground-level encroachments had been removed by the shopkeepers, projecting tin shades at the roof level remained.
Findings of Court:
Based on joint inspection reports and photographs, it was found that no construction existed at the ground level on the recorded road width, but projected portions of tin sheets at the roof level of the shops were still in existence.
Issues: Whether there were ongoing unauthorized constructions on the public road requiring demolition by the municipal corporation.
Ratio Decidendi: The court relied upon the specific reports of the municipal corporation and available photographic evidence, concluding that since only the roof-level tin shades remained as unauthorized projections, the corporation should be directed to remove the same.
Result: Writ application disposed of with a direction to the municipal corporation to remove the tin shades at the roof level within 30 days.
Legal Category Hierarchy
- administrative law
- property law
- practice and procedure
Table of Contents
2. Petitioner claimed illegal encroachment obstructing access. Private respondents and Corporation argued disputed questions of fact not suitable for writ jurisdiction. (Para 5 , 16 , 17 )
3. Court relied on Corporation's inspection reports finding no ground-level encroachment on road, only projected tin shades at roof level remained. (Para 18 , 19 , 20 , 21 , 22 )
4. A writ court can decide disputes based on official inspection reports; disputed questions of fact are not automatically excluded from writ jurisdiction. (Para 18 , 20 , 22 )
5. Corporation directed to remove remaining tin shades within 30 days; writ disposed, liberty granted to petitioner to approach other authorities for remaining claims. (Para 23 , 24 , 25 )
6. Can a writ court adjudicate disputed questions of fact regarding encroachment on public land?
Yes, a writ court can rely on official inspection reports and physical verification by authorities to decide factual disputes about encroachment. (Para 18 , 20 , 21 , 22 )
7. What is the evidentiary value of municipal corporation inspection reports in encroachment cases?
Inspection reports from municipal authorities, based on physical verification and joint inspections, carry significant evidentiary weight and can be relied upon by a writ court. (Para 18 , 20 , 21 , 22 )
8. When will a court direct removal of structures as opposed to granting other relief for encroachment?
A court will direct removal only for structures that are clearly identified as encroachments on public land based on reliable inspection reports, not for structures on land outside municipal jurisdiction. (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
