Manjulika Dutta vs The State Of West Bengal & Ors.

Raja Basu Chowdhury, J. :- (Oral)

Complaining illegal construction at the behest of the respondent no. 5 at Premises No. 31/H, D.J. Road, Ward No. 16, Konnagar, Hooghly, the instant writ petition has been filed.

When the matter was initially moved on 11^th June, 2026, the learned Advocate for the petitioner had drawn the attention of this Court to an order dated 5^th January, 2026 issued by the Konnagar Municipality directing the private respondent no. 5 to stop the construction work. It was submitted that the private respondent no. 5 is constructing the building in such a way that the cantilever is protruding on the petitioner’s plot.

At that stage, the private respondent no. 5 was not represented. However, Mr. Suman Sankar Chatterjee, learned advocate had intervened in the matter and had submitted that the sanctioned building plan had been issued by the Municipality in the month of January, 2026. However, since it was submitted by Mr. Chatterjee that the construction had commenced sometime in the year 2025 on the basis of an application for sanction, considering the state of affairs and noting that the municipal authorities had not bothered to appear, this Court had directed the Executive Officer, Konnagar Municipality to be personally present in Court along with all relevant records of the case when the matter is taken up next. On the returnable date, the Executive Officer was personally present in Court. The enquiry report based on which the stop work notice dated 5^th January, 2026 was issued had also been disclosed.

Incidentally, the learned Advocate appearing for the respondent no. 5, on the said date, had disclosed a revised sanctioned building plan dated 17^th April, 2025. Unfortunately, despite the aforesaid disclosure since the minutes of the meeting of the Board of Councillors dated 27^th January, 2026, as was referred to in the copy of the sanctioned building plan was not available before this Court and the Executive Officer was unable to afford any explanation as to why such records were not produced, this Court had directed the Municipality to produce the entire records when the matter was taken up next. Such fact would corroborate from the order dated 29^th June, 2026. Since then on 20^th July, 2026 when the matter was made returnable as the entire records were again not produced, this Court had directed the Finance Officer of the Municipality, who was the only officer available in the Municipality, to be personally present with the records. In furtherance to such direction, the original records have been produced.

The Municipality has also placed before this Court a report dated 30^th June, 2026 which identifies the extent of deviation in the sanctioned building plan. To morefully appreciate the contention of such report, the same is extracted hereinbelow :-

Mr. Tanmoy Mukherjee, learned Advocate appearing on behalf of the respondent no. 5, at the very outset, would submit that though the private respondent had initially obtained a sanctioned building plan which was issued online on 17^th April, 2025 and was for a G+3 storied building, however, while executing the work, the respondent no. 5 felt the need to construct a lift room above the roof of the G+3 storied building and an appropriate application was made before the municipal authorities. He submits that the municipal authorities were within their authority having regard to the provisions contained in Rule 32 of the West Bengal Municipal (Building) Rules, 2007 (hereinafter referred to as the ‘said Rules’), to regularise the deviation and issue the revised sanctioned building plan. According to him, the revised sanctioned building plan which has been issued offline on 11^th May, 2026 has been issued in accordance with the provisions of the West Bengal Municipal Act, 1993 (hereinafter referred to as the ‘said Act’) and has the approval of the Board of Councillors. He still further submits that simply because the respondent no. 5 had originally applied for a sanctioned building plan pertaining to a G+3 storied building, though the said respondent was otherwise entitled to a sanction for a G+4 storied building, the same cannot stand in the way of the municipal authorities granting sanction for the G+4 storied building. There is no irregularity in grant of such sanctioned building plan, especially when the deviation that was sought to be cured, was only minor.

Mr. Suman Sankar Chatterjee, learned Advocate appears for the Intervenor and would submit that at the instance of the intervener/developer, the construction has come up. The intervener is a necessary party and should be heard.

Having heard Mr. Chatterjee, learned Advocate appearing for the Intervenor and the respective parties, this Court directs the Department to add Sukanta Man, s/o. Late Gopal Man, 12 B. B. Street, Bhadrakali, Uttarpara, Hooghly, Pin – 712 232 as a party respondent to the present writ petition. Department is directed to carry out the above amendment. Mr. Chatterjee, learned advocate accepts service for the added respondent.

Learned Advocate for the petitioner, on the other hand, submits that in the guise of regularisation, the municipal authorities cannot interfere with the rights of the petitioner to be entitled to the adequate minimum side open space which has been taken away by the respondent no. 5 while carrying out the construction work. According to him, the construction is protruding on the petitioner’s plot. He further submits that the minimum statutory space has not been left and accordingly the municipal authorities could not have regularised the deviation and issued a fresh plan. Further no opportunity of hearing was granted to the petitioner before regularising the deviation.

Having heard the learned Advocates appearing for the respective parties and having considered the materials on record, I find from the disclosure made by the Executive Officer, Konnagar Municipality dated 30^th June, 2026 that initially a building plan was sanctioned in favour of the respondent no. 5 for construction of G+3 storied building situated at 31/H, D.J. Road, Ward No. 16, Konnagar, Hooghly through SWS-OBPAS on 17^th April, 2025.

Records reveal that a complaint was lodged by the writ petitioner on 30^th December, 2025 complaining deviation from the sanctioned building plan. The municipal authorities had promptly enquired into the matter. This enquiry was conducted by the Sub Assistant Engineer on 5^th January, 2026 and it was found that there were deviations in maintaining the mandatory side open space as also the ground floor open space. This apart, the report records that though on the northern side of the ground floor the open space is 1.35 mtrs. instead of sanctioned 1.20 mtrs. but the open space from the first floor level to the third floor is only 1.025 mtrs. Similarly, on the western side though, the ground floor open space is maintained as per the sanctioned building plan, the open space from the first floor to the third floor has been reduced to a minimum of 0.3 mtrs, which is way below the minimum permissible space.

The deviation appears to be on all three sides. This apart, it was also noted that at that stage the person responsible had already constructed two numbers of 1BHK flats on the fourth floor which had no sanction in the previous plan having an area of 27.14 sq. mtrs. and 20.82 sq. mtrs. respectively. Records as disclosed would however, reveal that by a letter dated 10^th February, 2026 an application was made for regularisation/amendment of the building plan. Such document bears the signature of the respondent no. 5. To morefully appreciate the same, the relevant document is extracted hereinbelow :-

As would appear from the same, the regularisation that was sought for was limited to only one room on the fourth floor. Incidentally, the municipal authorities appear to have regularised not only the additional construction on the fourth floor but also the entire deviation in the guise of the above revised plan. No opportunity of hearing was granted to the petitioner before the deviations were regularised though, the petitioner’s right was being affected and a complaint from the petitioner was outstanding.

It would be also of interest to note that by a subsequent communication dated 29^th May, 2026, the Chairman, Konnagar Municipality had addressed a letter to the respondent no. 5 noting that the previous stop work notice was issued due to an inadvertent error and that the same is cancelled and inconvenience regretted.

Records reveal that the municipal authorities apparently had not only regularised construction of additional floor but also deviations from all three sides, though, there is no such reflection in the subsequent sanctioned building plan. The municipal authorities could not at the cost of the petitioner permit the respondent no. 5 to carry on with the construction of an additional floor when the right of the petitioner to seek enforcement of the mandatory side open space was pending consideration before the authorities. It appears that the respondent no. 5 was given a permission to have the additional floor regularised though there was serious deviation in the side open spaces. Further the letter seeking regularisation dated 10^th February, 2026 even after the inspection by the Municipality was only for one room. As such, no regularisation of the unauthorised flats on the additional floor was permissible considering the nature of deviations. The petitioner was at no point of time heard by the municipal authorities before the authorities took the decision to regularise. The entire process is opaque and lacks transparency.

Considering the nature of construction as would corroborate from the disclosure made by the municipal authorities in the report prepared by the Executive Officer on 30^th June, 2026, it is apparent and clear that the deviations by no stretch of imagination can be said to be minor for the Municipality to invoke the powers under Rule 32 of the said Rules.

Be that as it may, having regard to the fact that the petitioner has not been heard by the municipal authorities while the municipal authorities had taken a decision in the matter, the municipal authorities are directed to forthwith hear out the petitioner.

Accordingly, the decision taken by the municipal authorities to regularise the sanctioned building plan without notice to the petitioner when the petitioner was the most affected party, appears to be perverse. The same is accordingly, set aside. All consequences thereof shall follow.

The municipal authorities are directed to give an opportunity of hearing to the petitioner and take further action in the matter.

With the aforesaid directions, the writ petition is disposed of.

The original resolution book along with the enquiry report be returned to the learned Advocate for the Municipality against a receipt to be retained in the file.

There shall be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities.