Rakesh Jangid vs The Kolkata Municipal Corporation And Ors.

The present writ petition has been filed inter alia challenging the order passed under Section 400(8) by the Kolkata Municipal Corporation (in short Municipal Authority) concerning premises no. 41A, Broja Dulal Street, Kolkata-700006 under Kolkata Municipal Corporation Ward No. 24, Borough IV.

Before proceeding to deal with the rival contention of the parties it would be relevant to note down the facts giving rise to the instant writ petition.

The private respondent in the instant writ petition had previously, challenging the failure on the part of the Municipal Authorities to take steps for demolition of the alleged unauthorised construction at premises no. 41A, Broja Dulal Street, Kolkata-700006 (hereinafter referred as “the said premises”) filed a writ petition which was registered as WPO/478/2025. The said writ petition was contested by the petitioner herein.

By an order dated 18^th September, 2025 the said writ petition was disposed of by directing by the Executive Engineering, Building Department, Borough IV and V, Kolkata Municipal Corporation to decide the representation dated 30^th May, 2025 filed by the petitioner in the said writ petition who also happens to be the private respondent herein, upon giving opportunity of personal hearing to the petitioner therein and the private respondent who is the petitioner in the present proceeding.

In terms of the aforesaid direction the Executive Engineering, Building Department Borough IV, Kolkata Municipal Corporation had afforded an opportunity of hearing to both the parties and ultimately by an order dated 11^th May, 2026 was, inter alia, pleased to dispose of the representation by observing as follows:-

Questioning the above inquiry proceedings and the hearing that took place on 20^th December, 2025, being unaware of the outcome of the above proceedings, a writ petition was filed by the petitioner herein which was registered as WPO 241 of 2026. In course of hearing of the said writ petition, the municipal authorities had produced the records and had drawn the attention of this Court to the order passed under Section 400(8) of the said Act. This Court in the peculiar facts by order dated 11^th June, 2026, while directing the municipal authorities to take steps and implement the order in accordance with law had also observed if, the petitioner is aggrieved by any of the acts or actions on the part of the municipal authorities, the remedy of the petitioner lies before the Tribunal. The above direction was issued taking into consideration the fact that the proceeding initiated before the Executive Engineer was drawn to a close by passing an order on 11^th May, 2026 observing therein that the construction raised is illegal, without any plan sanctioned from the concerned borough of the building department.

Being aggrieved, the petitioner appears to have preferred an intra Court Appeal which was registered as APOT 112 of 2026.

The Division Bench of this Court by an order dated 7^th July, 2026 was, inter alia, pleased to dispose of the said appeal by recording as follows:-

The petitioner, thereafter, claims to have preferred an appeal before the Building Tribunal. Since the Building Tribunal refused to accept and register the appeal, the instant writ petition had been filed. When the matter was moved on 6^th August, 2026, Mr. Mukherjee, learned Advocate appearing for the Kolkata Municipal Corporation had sought for an accommodation and accordingly on his prayer, the matter was adjourned till 10^th August, 2026. Today, Mr. Mukherjee, learned Advocate for the Kolkata Municipal Corporation would submit that the Building Tribunal has already registered the appeal. He submits that initially the Building Tribunal was not registering the appeal as according to the Tribunal the order passed under Section 400(8) of the said Act is not appealable.

Having heard the learned Advocates representing the respective parties, I find that admittedly in this case, in terms of the order passed by a Co-ordinate Bench of this Court in WPO 478 of 2025 dated 18^th September, 2025 an opportunity of hearing was granted to the parties, notwithstanding the order passed under Section 400(8) of the said Act which was approved by the Mayor-in-Council on 10^th September, 2025.

The Executive Engineer had, however, disposed of the said proceeding by passing the order dated 11^th May, 2026. The petitioner being unaware of such disposal of the proceeding had approached this Court by filing the writ petition which was registered as WPO 241 of 2026. However, in course of hearing, this Court having detected the above order passed under Section 400(8) and the order dated 11^th May, 2026 had disposed of the said writ petition by making the observations which have been noted hereinabove.

Having regard to the facts at hand, I find that in the instant case, the municipal authorities had already accepted the direction passed by the co-ordinate Bench on 18^th September, 2025 and an opportunity of hearing was afforded to the parties, even before implementing the order passed under Section 400(8) of the said Act. Thus once, the parties were heard the said proceeding lost its character as a proceeding under Section 400(8) of the said Act and is deemed to be a proceeding under Section 400(1) of the said Act. It is well settled that a proceedings under Section 400(8) of the said Act can be directed to be converted to a proceedings under Section 400(1) of the said Act as the exigencies of the case might demand. The judgment delivered in the case of Saif Impex Pvt. Ltd. & Anr. v. The Kolkata Municipal Corporation & Ors. report in (2014) 3 Cal LT 706 support the above view. The present appeal is now pending before the municipal Building Tribunal and as such there cannot be any doubt that the municipal Building Tribunal is competent to decide upon and dispose of the appeal on merit. Since, the appeal being B.T Appeal No. 55 of 2026 has now been registered, accordingly, the writ petition stands disposed of without any further order.

I must, however, record that Mr. Bhattacharya, learned Advocate had insisted that the protection afforded by the Division Bench by an order dated 7^th July, 2026 should be extended by this Court. In this context, I find that since the appeal has been registered, this Court has no scope to pass an order and if, the petitioner seeks for an extension, it is for the petitioner to make an appropriate application before the Building Tribunal, if so advised.

With the above observation the writ petition stands disposed of.