1. The affidavit in reply filed in Court today be taken on record.

2. The present writ petition has been filed, in alia, praying for a direction upon the respondent Corporation to cancel and/or rescind the sanctioned plan bearing serial no.14/Br-IV/2022-23 dated 4th April 2022. The petitioner claims to be PhD holder in Radio Physics, ex-CEO of Webel Crystals Limited and author of dozens of papers. The petitioner claims to be an owner of a residential property situated at 28A, Badur Bagan Lane, Kolkata – 700009 under Ward – 38 Borough – IV/V of the Kolkata Municipal Corporation. The respondent no.8 is the owner of premises no.28C, Badur Bagan Lane, Kolkata – 700009 (hereinafter referred to as “the said premises”).

3. It is the contention of the petitioner that during 2015-2016 the owner of the said premises had demolished a portion of the building and reconstructed its RCC structure with a plan sanctioned by the sub- Assistant Engineer (C), Ward No. 38, Borough – IV of the Kolkata Municipal Corporation without following due process of law. It is also the petitioner’s case that while carrying out the construction as aforesaid the respondent no.8 made diverse deviation from the then sanctioned plan including encroaching and absorbing the set-back area alongwith the common partition wall. It is also the petitioner’s case that on the basis of the complaint made by the petitioner the DG, Building had passed a demolition order, though no such order has been disclosed in the writ petition.

4. According to the petitioner, recently, the respondent no.8 has started further construction upon obtaining approval from the municipal authorities. It is also the petitioner's case that on this occasion as well, the respondent no.8 has deviated from the plan dated 4th April, 2022 and has thereby violated the provisions of the Kolkata Municipal Corporation Act 1980 (hereinafter referred to as ‘the said Act’) and the Building Rules framed thereunder. It is still further contended on behalf of the petitioner that despite repeated requests since the respondent no.8 did not stop the repair work, the petitioner was compelled to make representations with regard to the illegal and unauthorized repairing work being carried out by the respondent no.8 in deviation of the sanctioned plan. The petitioner claims that on 16th April, 2024, a hearing was conducted at the chamber of the Dy.C.E(Bldg)/North at 3rd floor, Building Department, 5, S. N. Banerjee Road at 1:00 pm. The petitioner does not discuss anything thereafter with regard to the aforesaid hearing conducted by the Dy.C.E(Bldg)/North. The petitioner, after placing the legal contentions, has made the following prayers in the writ petition.

                     “A) A writ of and/or in the nature of Mandamus commanding the respondents and each one of them their men, agents, assigns to cancel and/or rescind the impugned sanction plan being No. SL No. 14/Br-IV/2022-23 dated 04.07.2022;

                     B) A writ of and/or in the nature of Mandamus commanding the respondents and each one of them their men, agents, assigns to forthwith stop the illegal unauthorised construction work by Respondent No. 8 and his men and agents at Premises No. 28C, BadurBagan Lane, Kolkata-700009;

                     C) A writ of or in the nature of mandamus commanding the Respondent Authorities upon cancelling the impugned sanction plan being No. SL No. 14/Br-IV/2022-23 dated 04.07.2022, forthwith initiate appropriate demolition proceeding against the Respondent No. 8 in respect to the unauthorised construction work at the said Premises No. 28C, BadurBagan Lane, Kolkata- 700009;

                     D) A writ of Certiorari directing the respondents to certify and transmit the relevant records pertaining this case and produce the same before the Hon'ble Court at the time of hearing so that conscionable administered; justice could be administered;

                     E) Rule NISI in terms of prayers (A), (B), (C) and (D) above;

                     F) Costs and incidental thereto;

                     G) Such other and further order or orders and/or direction or directions as may deem fit and proper.”

5. The matter has come up for consideration after exchange of affidavits. The affidavit filed by the municipality in court today is taken on record.

6. Mr. Chakraborty, learned Advocate representing the writ petitioner, submits that the petitioner is 80 years’ old person and is suffering immensely. By drawing attention of this Court to the order dated 18th April 2024, appearing at page 91 of the affidavit in opposition filed by the municipality, he would submit that the municipality has taken steps to cause searches so as to ascertain the sanctioned file of 2015-16. According to Mr. Chakraborty, there is no sanction of 2015-16 and in absence of the sanctioned file/plan of 2015-16, no sanction could have been granted by the municipal authorities, nor any reconstruction plan could have been sanctioned. He submits that irrespective of the fact whether the petitioner has made a complaint for revocation of the sanctioned plan, the petitioner is entitled to maintain the writ petition since this Court has directed exchange of affidavits. This apart, by drawing attention of this Court to an order dated 20th November, 2024, he submits that though this Court on being prima facie satisfied had observed that the respondent no.8 should modify the structure by setting it back by at least four feet from the common boundary wall, the respondent no.8 is yet to comply with such direction.

7. The municipality is represented. Mr. Banerjee, learned advocate appearing for the municipal authorities by drawing attention of this Court to the complaints lodged by the petitioner, would submit that the petitioner's complaint was duly enquired into and the same was disposed of by passing the order dated 18th April, 2024. According to Mr. Banerjee, the above order was duly served on the petitioner and the same would corroborate from the report filed by the municipal authorities before this court on 4th July, 2020. By drawing attention of this Court to the affidavit filed by the municipality, it is submitted that sometime in June, 2022, an application was made for obtaining sanction under Section 410 of the said Act read with office circular no.9 of 2013-14. The municipal authorities upon causing searches in the records of the corporation to ascertain as to whether any case of unauthorized construction was pending and upon verifying that no proceeding was pending under Section 401 of the said Act, found that the plan proposal to be in order, and accordingly sanction was granted on 22nd June, 2022. There is no irregularity in issuing the sanctioned building plan.

8. Mr. Ghosh, learned Advocate appears for the private respondent. He submits that the petitioner is residing in the portion of premise which was originally numbered as 28, which has since been renumbered as 28A and 28C, Badur Bagan Lane. While the petitioner now resides in premises number 28A, the private respondent is residing in premises number 28C. According to him, the original structure was more than 100 years’ old. A portion therof has since been reconstructed and there is a common partition wall in between the two separate premises. He also points out that no application has been filed by the petitioner before the municipal authorities for revocation of the sanction under Section 397 of the said Act. According to him, this Court ordinarily ought not to exercise jurisdiction in a matter relating to revocation of a sanction plan at the first insance as the private respondent has a right to be heard before the municipal authorities who granted such sanction. This apart it is still further submitted that the construction carried out by the respondent is in accordance with the sanction plan.

9. Having heard the learned Advocates appearing for the respective parties, I find that the prayers made by the petitioner are essentially for revocation of a sanctioned building plan in terms of Section 397 of the said Act. The petitioner may have serious grievances. However, even after scanning the file, this Court could not identify from any of the complaints made by the petitioner that any application for revocation of the sanction building plan has been made. It is true that an application relating to an illegal construction has been made. From the order passed by the municipal authorities appearing at page 91 of the writ petition, it may be found that the municipality has returned the finding that on a recent inspection at the site it found the construction to have been carried out in accordance with the sanctioned plan. The order also notes that the executive engineer was directed to search out the sanction file of 2015-16. It is, however, not clear whether such decision is final. In so far as the order dated 20th November 2024 is concerned, the observations made therein are only prima facie as would appear from the same. The plan sanctioned on 22nd June 2022 would show that the same has been issued under section 410 of the said Act read with Rules 3(2) and 141 of the Kolkata Municipal Corporation Building Rules, 2009 which presupposes existence of other existing structures, which explains the proximity of the structure from the boundary wall.

10. Be that as it may, if the municipal authorities are unable to trace any document, the same cannot stand either in favour of the petitioner or against the private respondent. The petitioner seeks for a prayer in the nature of mandamus for cancellation of the sanction building plan. It is elementary that in such case an application ought to have been filed before the municipal authorities, especially when the statute provides for the manner in which an application for revocation of a sanction building plan can be made. Admittedly in this case, no application for revocation of the sanctioned building plan has been filed. As such, this Court cannot usurp the jurisdiction of the municipal authorities and decide on the cause. However, at the same time, considering the fact that the petitioner may or may not have a genuine grievance, without deciding such issue, this Court grants liberty to the petitioner to approach the municipal authorities by filing an appropriate application for revocation of the sanctioned building plan, if so advised. If such application is filed within a period of two weeks from date, the municipal authorities shall decide on the same in accordance with law as expeditiously as possible, preferably within a period of six weeks from the date of filing such application. Independent of the above, considering the fact that the complaint had been made by the petitioner as regards illegal construction, and though the same was dealt with by order dated 18th April, 2024, a final decision in this regard should also be taken by the municipal authorities and communicated to the petitioner.

11. It is made clear that this Court has not decided on the merits of the contentions and counter-contentions of the parties and it shall be open to the parties to raise all questions in appropriate proceedings if so advised in accordance with law.

12. The writ petition thus, stands disposed of.