Calcutta High Court
Gateway Hirise Ltd vs The State Of West Bengal &Ors on 25 June, 2026
2026:CHC-OS:290
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
WPO/201/2026
Gateway Hirise Ltd.
Versus
The State of West Bengal &Ors.
For the petitioner : Mr. Bikash Ranjan Bhattacharya, Sr. dvocate,
Mr. Raghunath Chakraborty, Advocate,
Ms. Tanushree Das, Advocate,
Mr. SaikatThakurta, Advocate,
For the KMC : Mr. Aloke Kr. Ghosh, Advocate
Mr. Dilip Kr. Chatterjee, Advocate
Heard on : 25.06.2026.
Judgment on : 25th June 2026.
RAJA BASU CHOWDHURY, J. (Oral) :
1. Complaining inaction on the part of the municipal authority to
decide on the petitioner’s application for sanction filed in terms of
the liberty reserved in favour of the petitioner by the judgment
delivered by the Hon’ble Division Bench of this Court in
APO/47/2022 on 30th September, 2022, the instant writ petition
has been filed.
2. When the matter was taken up for consideration on 20 th May, 2026
noting that an application for sanction was filed in accordance with
Section 394 of the Kolkata Municipal Corporation Act, 1980
(hereinafter referred to as ‘the said Act’) for construction of five
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additional floors on a G+7 storeyed building at 115/3, Hazra Road,
Kolkata (hereinafter referred to as ‘the said premises’) and noting the
submissions made by the learned Advocate for the Municipality that
the petitioner’s application was not in form, this Court had called
upon the municipality to file a report. Pursuant to the aforesaid
direction passed by this Court a report has been filed which is
countersigned by the Executive Engineer (C) Building Department,
Borough – IX, Kolkata Municipal Corporation dated 10 th June, 2026.
In such report it has been portrayed that since the petitioner did not
apply for a completion certificate of the existing structure/building
as raised on the basis of the plan sanctioned on 21 st February, 2015
which stood lapsed by operation of law and since, the matter was
not pursued, the plan proposal has been kept pending.
3. To morefully appreciate the case at hand, it would be relevant to
note down the facts giving rise to the present cause.
4. The petitioner claims to have applied for and obtained a sanction
building plan for construction of B+G+12 storeyed residential
building at 115/3, Hazra Road, Kolkata (hereinafter referred to as
‘the said premises’), vide building permit no. 2014090074 dated 21 st
February, 2015. Upon obtaining such sanction permit, the
petitioner commenced the construction work at the said premises in
accordance with sanctioned plan. According to the petitioner, the
petitioner had obtained all relevant clearances including no
objection clearance certificate from BSNL and had applied for and
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obtained fire safety recommendation upon payment of requisite fees.
The requisite certificate of clearance was also obtained by the
petitioner in terms of the West Bengal Trees (Protection and
Conservation in Non-Forest Areas) Act, 2006 and other necessary
permissions as required for carrying out the construction.
5. Unfortunately, according to the petitioner, on 4 th February, 2020 on
the verbal instruction from the police authorities that the
construction work would continue till the seventh floor roof slab
only having regard to the restriction imposed on construction of new
masonry building in the high security zone of Kolkata, the work was
brought to an abrupt halt. In such aforesaid circumstances, the
petitioner made a representation before the Officer-in-Charge of the
Kalighat Police Station on 5th February, 2020.
6. In the interregnum, though the petitioner had approached the
municipal authority since the building permit was about to lapse,
the municipal authority refused to accept the application for
revalidation. In the peculiar facts and circumstances and despite
requests and representations being made, since the municipality did
not accept the application of the revalidation of the building plan by
relying on the circular issued by the Municipal Commissioner being
no. 5 of 2020-21 dated 17th June, 2020 which imposed construction
of new masonry building within the high security zone of Kolkata,
the petitioner was compelled to approach this Court by filing a writ
petition which was registered as WPO/275/2020. The said writ
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petition was disposed of by a Co-ordinate Bench of this Court by an
order dated 21st April, 2022 by directing the Municipal
Commissioner to renew the sanction plan and extend the period of
completion of the construction and fix up the time limit on
consideration of the application submitted by the petitioner on 24 th
June, 2020. The municipality, however, did not accept the said
order, instead had preferred an appeal which was registered as
APO/47/2022.
7. On the contested hearing, the said appeal was disposed of by a
judgment and order dated 30th September, 2022 by observing that if
the petitioner applies for renewal of the building plan/fresh sanction
of building plan, the same will be considered in accordance with law
and the applicable rules by the competent authority without taking
into account the aforesaid municipal circular no. 5 of 2020-21 dated
17th June, 2020, and the direction on the part of the learned Single
Bench to renew the sanction plan was set aside to the extent it
directs extension of period of completing the concerned construction
without the petitioner applying for fresh sanction. The petitioner
had, however, instead making any requisite application, had simply
applied before the municipal authority in writing. Since, the
municipality was not acting on the basis of such application, the
writ petition being no. WPO/689/2024 was filed.
8. The said writ petition was initially dismissed by an order dated 27 th
August, 2024, inter alia, on the ground that the petitioner had
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proceeded in contempt jurisdiction and that the contempt
application was pending before the Hon’ble Division Bench for
implementation of the order dated 30 th September, 2022.
9. By an order dated 26th November 2024, the Hon’ble Division Bench
of this Court on the undertaking given by the petitioner that he shall
withdraw the contempt application, was pleased to set aside the
order dated 27th August 2024 and remanded the writ petition to the
Learned Judge for fresh consideration. Subsequently, the writ
petition was taken up for consideration and was disposed of by an
order dated 8th January, 2025 by, inter alia, granting liberty to the
petitioner to file a fresh application for sanction in accordance with
Section 394 of the said Act. It was further provided that the
application must be in prescribed form under Rule 4 of the Kolkata
Municipal Corporation Building Rules, 2009 (hereinafter referred to
as ‘the said Rules’). It was also made clear that if such application is
submitted within 30 days from the date of passing of such order, the
municipality shall process such application in accordance with law.
Pursuant to the aforesaid direction, the petitioner having applied
and since the municipality did not take any steps, the petitioner was
compelled to approach this Court by the instant writ petition.
10. As noted above, the municipality has already filed a report. In the
aforesaid report in page 6, the municipality has acknowledged the
receipt of an application in the form of plan proposal under Section
394 of the said Act read with the provision of Rule 4(2) of the said
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rules with certain documents. The report further records that
though the proposal was taken up for consideration, however, since
the petitioner had not yet applied for completion certificate of the
existing structure/building as raised upon obtaining the sanctioned
building plan dated 21st February, 2015 which stood lapsed by
operation of law and since, the petitioner neither pursued the plan
proposal nor submitted any application for obtaining the completion
certificate, as a result whereof, the issue was lost sight of the
building department for further processing the matter. It has been
further highlighted that if the petitioner submits the application for
obtaining the completion certificate in prescribed form along with
the relevant papers and documents as is required in terms ofRules
27 and 28 of the said Rule read with Section 403 of the said Act,
appropriate steps shall be taken by the department to process the
petitioner’s plan proposal.
11. Mr. Ghosh, learned Advocate appearing for the municipality has
taken this Court to the provision of Section 394 of the said Act and
the rules 27, 28 and 29 of the said Rules and insists that unless,
the petitioner is in a position to apply for a completion certificate
and unless such completion certificate is issued, the municipality is
in no position to decide on the petitioner’s application.
12. Mr. Bhattacharya, learned Senior Advocate appearing for the
petitioner while responding to the same has submitted that the
building is incomplete and as such the question of making an
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application for completion certificate or partial completion certificate
cannot and does not arise. According to him, the partial completion
certificate can only be issued if a building constructed up to a
particular level is complete in all respects. In the instant case, since
the building in question is incomplete, the question of applying for
partial completion certificate cannot and does not arise.
13. Having regard to the submission made by the respective parties, and
on considering the materials on record the question that falls for
consideration in the present case is whether the petitioner is obliged
under the provisions of the Municipal Act to apply for completion
certificate/partial completion certificate in terms of the said Rules
for the municipality to process the petitioner’s application under
Section 394 of the said Act.
14. As noted above, the fact that the building is incomplete is not in
dispute. The Hon’ble Division Bench of this Court in its judgment
and order dated 30th September, 2022 has specifically recorded the
contention of the municipality in paragraph 11 wherein it is
recorded that the learned Advocate for the municipality had argued,
the question of extension of time to complete any construction work
can arise only when application for extension is made before the
time runs out.
15. In paragraph 14 of the said judgment, the following observation has
been made:-
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“The question that falls for determination is a short one, i.e., if
the initial validity period of a sanctioned building plan expires
without the builder having applied for extension of the validity
period prior thereto and if construction of the building is not
yet complete, can the builder, in order to continue and
complete the construction, applying and obtain extension of
the initial validity period of the sanctionedplan or must he
obtain renewal of the sanctioned plan which really means
obtaining a fresh sanction?”
16. I find that initially the petitioner was prevented from completing the
construction later. The municipality had taken a stand that unless
the petitioner applies for obtaining fresh sanction, the petitioner has
no right to complete the construction. Not only the Hon’ble Division
Bench but subsequent Co-ordinate Bench of this Court has also
granted the liberty to the petitioner to apply for fresh sanction in
accordance with Section 394 of the said Act. It is not in dispute that
an application under Section 394 of the said Act has been made.
The only question that is to be considered is whether along with the
application, the petitioner is required to make an application for
obtaining completion certificate. To appreciate the above, it is
necessary to understand the scope of Sections 390(1), 394 of the
said Act and Rules 27, 28 and 29 of the said Rules. The same is
extracted hereinbelow :-
“390. Definitions:-
In this Chapter, unless the context otherwise
requires,–
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(1) The expression “to erect a building” means–
(a) to erect a new building on any site, whether
previously built upon or not;
(b) to re-erect–
(i) any building of which more than one-half of the
cubical contents above the level of plinth have been pulled
down, burnt or destroyed, or
(ii) any building of which more than one-half of the
superficial area of the external walls above the level of
plinth has been pulled down, or
(iii) any frame-building of which more than half of
the number of posts or beams in the external walls have
been pulled down;
(c) to convert into a dwelling house any building or
any part of a building not originally constructed for human
habitation or, if originally constructed for human habitation,
subsequently appropriated for any other purpose;
(d) to convert into more than one dwelling house a
building originally constructed as one dwelling house only;
(e) to convert into a place of religious worship or a
sacred building any place or building not originally
constructed for such purpose;
(f) to roof or cover an open space between walls or
buildings to the extent of the structure formed by the roofing
or covering of such space;
(g) to convert two or more tenements in a building
into a greater or lesser number of such tenements;
(h) to convert into a stall, shop, office, warehouse or
godown, workshop, factory or garage any building not
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originally constructed for use as such, or to convert any
building constructed for such purpose, by sub-division or
addition, in greater or lesser number of such stalls, shops,
offices, warehouses or godowns, workshops, factories or
garages;
(i) to convert a building, which when originally
constructed was legally exempt from the operation of any
building regulations, contained in this Act, or under any
rules or regulations made under this Act, or contained in
any other law in force for the time being, into a building
which, had it been originally erected in its converted form,
would have been subject to such building regulations;
(j) to convert into or use as a dwelling house any
building which has been discontinued as or appropriated
for any purpose other than a dwelling house;
(k) to make any addition to a building;
(l) to close permanently any door or window in any
external wall;
(m) to remove or reconstruct the principal staircase
or to alter its position;
xxx xxx xxx xxx
“[394. Application for addition to or repairs of buildings. –
Every person who intends to execute any of the works
specified in clause (b) to clause (m) of sub-section (1) of
section 390 shall apply for sanction by giving notice in
writing of his intention to the Municipal Commissioner in
such form together with such fees including Drainage
development fee and containing such information as may be
prescribed.]”
******** xxx xxx xxx xxx
“27. Notice of completion.-(1) Within one month after the
completion of the erection of any new building or execution
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of any work the applicant shall in the form as specified in
Schedule XII duly countersigned by the Architect or
Licensed Building Surveyor and Structural Engineer, as the
case may be, give notice to the Municipal Commissioner of
such completion under section 403 of the Act.
(2) The notice shall be accompanied by 3 sets of
building plans (either ammonia print or computer generated
print) marked as “Completion Plans” with all the revisions
and modifications including those referred to in sub-rule (2)
of rule 26 incorporated therein and clearly stating the
occupancy or use-group for which the building or the work
has been sanctioned. The plans shall be duly signed by the
applicant and the Architect or the Licensed Building
Surveyor, and the Structural Engineer, as the case may be.
(3) The notice shall be accompanied by a structural
stability certificate duly signed by an Structural Engineer
and Architect or Licensed Building Surveyor, as the case
may be, and wherever applicable shall be accompanied by-
(a) in the case of a building having more than
three separate and Independent residential units
or apartments and all buildings other than
residential buildings, a certificate from the
Licensed Building Surveyor or Architect that
internal house drainage and water supply
network have been tsfaction (sic) of the Municipal
Commissioner;
(b) fire safety certificate, if applicable under the
West Bengal Fire Services Act, 1950 (West Ben.
Act XVIII of 1950) and the rules made thereunder
has been obtained;
(c) in the case of building referred to in clause (a)
a certificate from the electricity supply
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undertaking regarding provision to its
satisfaction, of transformer, sub-station, ancillary
power supply as required;
(d) a certificate pertaining to the lift installation, if
any;
(e) such other
certificates/documents/declarations as are
necessary under any law for the time being in
force or as the Mayor-in-Council may, from time to
time, specify in this behalf.
28. Completion Certificate.-(1) Within fifteen days of the
receipt of notice of completion of building work, the
Municipal Commissioner shall inspect the building or work
and shall satisfy himself that the erection or the execution of
the work has been completed in accordance with completion
plan.
(2) Within ten days of inspection, the Municipal
Commissioner shall, if he is satisfied that the building or
work has been completed in accordance with the completion
plan issue a completion certificate in the form as specified in
Schedule XIII:
Provided that such certificate shall not be issued in
the case of building or any work for which provisional
sanction was given unless the applicant produces
before the Municipal Commissioner the license or
permission in accordance with sub-section (3) of section
396 and documents recording compliance of the terms
and conditions of such provisional sanction.
(3) After due verification, one set of the building plan
as submitted under rule 27 shall be returned to the
applicant with the endorsement “Approved Completion
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Plan”, under the signature of the Municipal
Commissioner.
(4) In case where the Completion Certificate is
refused, the Municipal Commissioner shall communicate
the reasons thereof in writing to the applicant within a
reasonable time of inspection under sub rule (1) above.
(5) In case where in the opinion of the Municipal
Commissioner the building or the work has not been
completed in accordance with the completion plan he
may take necessary action in accordance with the
provisions of the Act and rules.
(6) The Municipal Commissioner shall not permit
connections to be made to municipal water mains and
municipal drains from any new building in respect of
which Completion Certificate has not been issued:
Provided that the Municipal Commissioner may
permit connections to be made in respect of a building
where Partial Completion Certificate or Block wise
Completion Certificate has been issued as per provision
of rules 29 and 30.
Provided further that the Municipal Commissioner
may order disconnection of such connections if he is of
the opinion that the conditions of the Partial Completion
Certificate or Block wise Completion Certificate are
being violated or if further erection of the building or
execution of the work is proceeding contrary to the
sanctioned plans.
29. Partial Completion Certificate.- (1) Upon a
written request made to the Municipal Commissioner for
issuance at Partial Completion Certificate consequent
upon completion of a part of a building which is under
construction, the Municipal Commissioner, on being
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satisfied that the construction of the specified portion is
complete in all respects; that the remaining construction
cannot be completed as per sanction plan within a
reasonable period of time and that circumstances exist
for allowing partial occupation of the building, may
issue Partial Completion Certificate valid for a specified
period, in the form as specified in Schedule XIII.
(2) A written request under sub-rule (1) shall be
accompanied by-
(a) a notice of completion in the form as
specified in Schedule X for the portion of the building
which is stated to be complete, along with all enclosures
as per rule 27 as applicable,
(b) structural stability certificate for the portion
of the building which is stated to be complete,
(c) an indemnity bond/undertaking to
indemnify the Corporation against any risk, danger or
damage to any person, whether an occupier or not, and
an undertaking to ensure, in such manner as the
Municipal Commissioner may specify, public safety,
(d) an undertaking that no person shall occupy
or shall be allowed to occupy any portion of the building
for which Completion Certificate has not been issued,
(e) an undertaking that in the event of violation
of the terms of the Partial Completion Certificate, the
Corporation shall be entitled to disconnect municipal
water mains and municipal drains for the entire
building without any notice.
(f) any other documents or undertakings that
the Municipal Commissioner may deem necessary.
3) When the erection of the building or the execution
of the work is completed within the period or extended
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period provided for in section 399, the applicant shall
apply for conversion of the Partial Completion Certificate
or issue of Completion Certificate and such certificate
may be issued in accordance with the provisions of
these rules.”
17. As would appear from the above, there is no requirement specified
in Section 394 of the said Act for obtaining completion certificate. It
does not require an applicant to make any application for obtaining
completion under the said Rules as well. From perusal of the
aforesaid Rules, it would transpire that in terms of Rule 27 of the
said Rules, it is the obligation of the builder to apply within a month
after the completion of the erection of any new building or execution
of work to apply in a prescribed form as per Schedule XII duly
countersigned by the architect or licenced building surveyor or
structural engineer, as the case may be, give notice to the Municipal
Commissioner of such completion under Section 403 of the said Act.
Once, such application is made as per Rule 28, the Municipal
Commissioner is duty bound to carry out an inspection of the building
and to satisfy himself that the erection or execution of the work has
been completed in accordance with the completion plan and within 10
days of such inspection, if he is satisfied that the building or the work
has been completed in accordance with the completion plan issue a
completion certificate in the form specified in Schedule XIII.
18. The circumstance for grant of partial completion certificate is a little
different. There is no obligation cast on the builder to apply for a
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completion certificate. The opening sentence of the Rule 29 of the
said Rules reads that upon a request made to the Municipal
Commissioner for issuance of partial completion certificate
consequent upon completion of a part of a building which is under
construction, the Municipal Commissioneron being satisfied that the
construction of the specified portion is complete in all respects that
the remaining construction cannot be completed as per sanction
plan within a reasonable period of time and that circumstances exist
for allowing partial occupation of the building, may issue partial
completion certificate valid for a specified period in the form as
specified in Schedule XIII. Ordinarily, there is no obligation for the
builder to obtain a partial completion certificate.
19. Having regard to the aforesaid and noting the provision of the said
Act and the rules framed thereunder and also noting the definition
of the expression ‘to erect a building’ and to make addition to a
building, I do not find that there is no requirement in law for the
builder to apply for a completion certificate before making an
application under Section 394 of the said Act. In the peculiar facts
of this case, I must note that despite there being a specific direction
from the Co-ordinate Bench of this Court vide its order dated 8 th
January, 2025, the municipality did not bother to decide on the
petitioner’s application, rather the municipality tried to shift the
responsibility on the petitioner by noting in the report that after the
petitioner had submitted the plan proposal, neither the petitioner
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had pursued the plan nor submitted any application for completion,
and as a result the issue was lost sight for further processing the
matter. It is not known, how a person who applies for obtaining
sanction plan would be required to pursue the matter with the
concerned official or if the same is not pursued the municipality
shall not take steps and shall lose sight of such an important issue,
especially when the parties have been at loggerhead and three
several Coordinate Bench of this Courts had passed three several
orders in the matter.
20. In the light of the above, I am of the view that the claim made by the
Executive Engineer (C), Buildings Department to hold on the
petitioner’s application for sanction by claiming that unless, the
petitioner files an application for partial completion and upon the
municipality determining on the basis thereof that there is no
deviation, that the plan proposal may be dealt with, in my view, does
not have the backing of the statute. Ordinarily, the municipality is
well authorised by the said Act to take appropriate action if the
municipality finds that there is any deviation in carrying out the
construction. It is not the case of the municipality that the
construction carried out by the petitioner to the extent that has
been carried out is in deviation of the sanctioned plan or at least no
disclosure in this regard has been made.
21. In the light of the above, I direct the Building Committee including
the Municipal Commissioner to decide on the petitioner’s application
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in accordance with law on an expeditious basis, preferably within
four weeks from the date of communication of this order on the
basis of the above observations made herein.
22. The instant writ petition, accordingly, stands disposed of.
23. There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be made
available to the parties upon compliance of requisite formalities.
(RAJA BASU CHOWDHURY, J.)
R. Bose/S.Seal
