MAT/689/2026 of SUROJIT DAS AND ORS. Vs THE STATE OF WEST BENGAL AND ORS. on 10 September 2026

1. The appeal arises out of an order dated March 30, 2026 passed in W.P.A. 5084 of 2026.

2. By the order impugned, the learned Judge dismissed the writ petition, inter alia, holding that the Municipality was under the process of determining whether initiation of a proceeding under Section 218 (1) of the West Bengal Municipal Act, 1993 in respect of the construction of the appellant was warranted.

3. Thus, it was entirely premature for the Court to entertain the writ petition, thereby, setting aside the order dated February 03, 2026 passed by the Administrator, Bally Municipality.

4. Mr. Basu, learned senior advocate representing the appellants submits that His Lordship erred in not appreciating that the Executive Officer of the Municipality held the hearing, but the order impugned was passed by the Administrator.

5. He submits that, the law was well settled in the field that, the authority who holds the hearing must pass the order.

6. The facts of the case clearly reflect that the Administrator did not hold the hearing, and as such, he was not competent under the law to sign the impugned order.

7. Before us, documents were placed, to establish that Bally Municipality had all along proceeded irregularly and contrary to law. In view of the procedural impropriety, the proceeding initiated pursuant to the direction of a learned single Judge of this Court in W.P.A. 11331 of 2024 and in the contempt application, should be set aside. Mr. Basu submits that the hearing which was referred to by the Executive Officer dated November 26, 2025, formed the basis of the order passed by the Administrator on February 03, 2026. The hearing was held on November 26, 2025, by the Executive Engineer, the Administrative Officer signed the same. Such order finds reflection also in the order dated February 03, 2026. The entire process is vitiated according to Mr. Basu. The order dated February 03, 2026 was not an independent order passed by the Administrator of Bally Municipality. The prima facie, opinion with regard to the unauthorised construction of the appellants was formed on the inputs received from the Executive Officer.

8. Mr. Banerjee, learned advocate appearing for the Bally Municipality submits that the appeal has become infructuous as a demolition order has been passed. Such order should be challenged before the appropriate forum.

He further submits that the order dated February 03, 2026 was a, prima facie, opinion of the Administrator. The Administrator independently applied his mind to find out whether reasons existed for initiation of a proceeding under Section 218 of the West Bengal Municipal Act, 1993. The said order was not the order of demolition. The proper course of action for the appellants would be to file their written version with adequate documents to rebut the finding of the authority. On the basis of the documents, the authorities were to proceed under the provisions of law, thereby, deciding whether the construction of the appellants were in accordance with the sanction plan and/or in accordance with the building rules and/or in accordance with the law. In the event, the appellants were successful in satisfying the authorities that the construction was on the basis of the sanction granted to them, the construction would be safe. It was pre-mature for the appellants to challenge the, prima facie, observation of the Administrator who was discharging the functions of the Board of Councillors.

9. We find that the original report of inspection had mentioned the measurements of the deviated portions of the building. Such measurements are not identical with those in the decision dated February 03, 2026. We find from the order dated February 03, 2026 that, the Administrator applied his mind while coming to a, prima facie, finding that the construction was unauthorised. The appellants submitted the documents along with a representation dated January 21, 2026. The learned advocate Sri Paul had appeared on behalf of the appellants before the authority. Under such circumstances, His Lordship was correct in holding that the challenge was pre- mature. The, prima facie, finding of the Administrator was the basis for initiation of proceeding for demolition. If the appellants are successful in proving that the building was as per sanction, the proceedings will come to an end and no further action will be taken.

10. We find that a hearing notice was given, but, the appellant failed to appear at the hearing. We give them another chance to prove the legality of their construction.

11. Thus, all the inspection reports shall be supplied to the appellants within 10 days. The appellants will file their written version to the order dated February 03, 2026 passed by the Administrator, within two weeks thereafter. The appellants will be allowed to make oral submissions. The complainant who was the writ petitioner in the first round of litigation, that is, the respondent no. 8 shall be allowed to file a counter statement and file additional documents upon receipt of the appellants’ written version. On the basis of the records and hearing given to the parties, the final decision shall be passed by the appropriate authority, thereby, reaching the proceeding under Section 218 to its logical conclusion. In the event the construction or part thereof is found to be illegal, the construction shall be demolished.

12. The order of demolition dated August 27, 2026, is set aside on the ground that the appellants were not present.

13. The appeal and the application are disposed of.

14. The matter will be finally decided and disposed of in terms of Section 218 of the 1993 Act, within three weeks from completion of the formalities as indicated hereinabove.

15. We restrain the appellants from changing the nature and character of the said construction and/or from alienating the same by creating third party interest.

16. Urgent photostat certified copy of the order, if applied for, be given to the parties, upon usual undertakings.

(Shampa Sarkar, J.) (Arjun Ray Mukherjee, J.)