Calcutta High Court (Appellete Side)
Surendar Kanu vs Madan Kanu & Ors on 8 April, 2026
Author: Shampa Sarkar
Bench: Shampa Sarkar
08.04.2026
M/L No.38
Court No.12
(gc)
MAT 602 of 2025
CAN 2 of 2025
Surendar Kanu
Vs.
Madan Kanu & Ors.
Mr. Animesh Paul
...for the Appellant.
Mr. Akash Adak
...for the Respondent No.1.
Mr. Sandipan Banerjee,
Mr. Ankit Sureka
...for the H.M.C.
1. By order dated November 28, 2024, the learned Single
Judge restrained the Corporation from proceeding with
the demolition of the premises in which the respondent
No.1 resides, by completely ignoring the order of a
Division Bench passed in respect of the self-same
construction on March 5, 2024 in MAT 2495 of 2023.
The appellant before the Division Bench was the
respondent no.1. The relevant portions of the said
order are quoted below:-
"However, on the request made by Mr.
Bhattacharjee, learned Advocate for the appellant,
and on humanitarian grounds, we allow three
months time to the appellant to vacate the
building in question so that the same can be
demolished by HMC in accordance with law. The
appellant shall file an undertaking in the form of
affidavit with the learned Registrar General of this
2
Court within a week from date, to the effect that
he along with his family members and associates
who reside in the building in question, shall
vacate the building within three months from
date, upon intimation to HMC. Once the appellant
and his family members vacate the premises in
question, HMC shall forthwith proceed to demolish
the same in accordance with law."
2. The respondent no.1 had suffered an order of
demolition dated July 12, 2023, which is quoted below:-
3. The demolition order is quoted below:-
"Pre: 95/2, Madhusudhan Pal Chowdhury
Lane, P.S- Bantra, W/No-22, Howrah-711101.
In compliance to the order of Hon'ble Justice
Amrita Sinha, dated-10-01-2023 the hearing was
taken wherein the petitioner and the respondents
were all present.
That the petitioner Surendar Kanu attended the
hearing through his Ld. Advocate Dev Kumar
Sharma submitted that there is no building plan
for construction of G+2 building. The private
respondent Madan Kanu could not produce any
sanction plan, the entire construction is
unauthorized and prayed for demolition as per
extant Act and Rules. He further submitted the
writ petition WPA No-23740 of 2022 (Madan Kanu
VS The State of West Bengal & Ors) for
regularization of unauthorized construction has
been dismissed by Hon'ble High Court.
That the private respondent Madan Kanu
attended the hearing through his Ld. Advocate
Prahalla Manna and he submitted that Title Suit
being T.S No-168 of 2022 for partition, declaration
3
an injunction in respect of the property of 95/2,
Madhusudhan Paul Chowdhury Lane which is
pending before the Ld. Civil Judge, Senior
Division, 2nd Court, Howrah and there is an
injunction in form statuesque and same is still
prevailing. He stated that there is no sanction
plan for construction of building over the said
premises.
Hence.
ORDER
That the Respondent has violated the HMC Act
1980 and KMC Building Rules 2009 as extended
Howrah and the respondent is hereby directed to
cause Self Demolition of the unauthorized
constructions and deviated portions as mention in
the Inspection Report within 15 days from the
date of receipt of this order and in default HMC
will cause demolition of the unauthorized
construction and deviated portions and the costs
of such demolition will be borne by the
Respondent.”
4. The respondent no.1 admitted that the structure was
constructed without any sanction and prayed for a
regularization by filing a writ petition being WP NO.
23740 of 2022. The construction as illegal. The court
refused to pass order. The order passed in writ petition
is quoted below:-
” The construction, being a G+2 storied
building, has been made without obtaining any
sanction at all. The petitioner submits that an
application for regularization of the said
structure has been filed and the same is pending
consideration.
4
No provision of law has been produced
before this Court permitting regularization as a
whole of any construction which has been made
without obtaining any sanction.
In the present case, the entire G+2 storied
building has been constructed by the petitioner
without any sanctioned plan.
According to the provisions of law,
construction can be made only after obtaining
sanction and not prior thereto. Constructing a
G+2 storied structure and thereafter applying for
regularization of the same is certainly not
permissible in law.
In view of the above, no relief can be
granted to the petitioner in the instant writ
petition.
The writ petition fails and is hereby
dismissed.
Urgent certified photocopy of this order, if
applied for, be supplied to the parties
expeditiously on compliance of usual legal
formalities.”
5. Again a writ petition was filed by the respondent No.1
being WPA 22849 of 2023 and the following order was
passed:-
“It appears from the documents annexed to
the writ petition that the petitioner approached
this Court on an earlier occasion by filing a writ
petition being WPA No. 23740 of 2022 seeking
regularization of the construction made without
any sanction wherein order was passed by this
Bench on 10th January, 2023 dismissing the writ
petition.
The Court observed that according to the
provisions of law, construction can be made only
after obtaining sanction and not prior thereto.
In the instant case, the entire G+2 storied
structure has been constructed without any
sanction. The construction is absolutely illegal.
5
The Court refuses to exercise jurisdiction in the
present case.”
6. The order was challenged and MAT 2495 of 2023 was
disposed of with the following order:-
“Mr. Nilanjan Bhattacharjee, learned Advocate
appearing for the appellant/writ petitioner says
that although the appellant has constructed the
building in question without obtaining prior
sanction from HMC, as a matter of fact, none of
the relevant building rules has been violated. It is
a residential building where the appellant and his
family reside. They are not wealthy people. The
matter should be considered sympathetically. If
HMC finds that the construction is in accordance
with the applicable building rules, the appellant
should be permitted to retain the construction
upon payment of such retention charges or penalty
that HMC may decide.
We have not called upon the respondents to make
submission.
HMC is a creature of statute. A statutory
corporation must act within the four corners of the
parent statute. It can do only such things as the
statute has empowered it to do. It is incompetent
to do something which the statute does not
contemplate. This is the fundamental difference
between a statutory corporation and a natural
person. A natural person is free to do anything
excepting that which is forbidden by law. A
statutory corporation can do only such things
which the parent statute authorizes it to do and
nothing more.
6
No provision in the HMC Act has been drawn to
our attention which would permit HMC to
regularize the building or any portion thereof
constructed by the appellant without obtaining
prior sanction. HMC is not empowered to permit a
person to retain such a construction. Hence,
although we may have sympathy for the appellant
and his family, we are unable to grant any relief
to them. Sympathy cannot be the basis for passing
orders in a court of law.
In view of the aforesaid, we do not find any
infirmity in the order of the learned Single Judge.
However, on the request made by Mr.
Bhattacharjee, learned Advocate for the appellant,
and on humanitarian grounds, we allow three
months time to the appellant to vacate the building
in question so that the same can be demolished by
HMC in accordance with law. The appellant shall
file an undertaking in the form of affidavit with the
learned Registrar General of this Court within a
week from date, to the effect that he along with his
family members and associates who reside in the
building in question, shall vacate the building
within three months from date, upon intimation to
HMC. Once the appellant and his family members
vacate the premises in question, HMC shall
forthwith proceed to demolish the same in
accordance with law.
Learned Advocate for the appellant further says
that once the building is demolished, the appellant
should be granted the liberty to apply for sanction
of a building plan and make fresh construction in
accordance with the sanctioned plan. That liberty
the appellant always has.
7
Mr. Banerjee, learned Advocate for HMC says that
at the time of demolition, the jurisdictional police
should render all assistance to HMC. If such
assistance is necessary and if the jurisdictional
police is approached by HMC, the police
authorities shall render full cooperation and
assistance for carrying out the order of demolition
as contemplated in Section 225 of the HMC Act,
1980.
The appeal and the connected application are,
accordingly, disposed of.
However, let this matter be listed under the
heading “To Be Mentioned” on 12.03.2024 only for
the purpose of ascertaining whether the appellant
has filed the undertaking in the form of affidavit
with the learned Registrar General of this Court,
as directed above.”
7. The learned Advocate for the respondent no.1 submits
that in terms of the order of the Division Bench,
demolition had already been effected. However, this
submission is not supported by the order passed in
favour of the respondent no.1 by the learned Single
Judge. His Lordship recorded that the demolition could
not have been initiated after six months from the
demolition order. This observation and this finding are
completely erroneous.
8. The Howrah Municipal Corporation was directed by a
learned Judge of this Court to look into the allegation of
unauthorized construction. The proceedings were
initiated and a demolition order was passed. The
8
respondent no.1 challenged the said demolition order
and the challenge to the same was rejected upon the
High Court, holding that the entire construction of the
G+2 building was illegal. Regularization was refused.
This order was challenged by the respondent no.1 in an
appeal. The appeal court specifically recorded that, at
the request of the learned Senior Advocate and on
humanitarian grounds, three months’ time would be
given by the respondent no.1 to vacate the premises so
that the demolition could take place. The orders have
already been discussed and referred to hereinabove.
9. Under such circumstances, we find it impossible to
accept the contention of the respondent no.1 that the
second attempt of demolition was made, over and above
the order which was already executed by the Howrah
Municipal Corporation.
10. However, we make it clear that the subject demolition
order will be executed in its letter and spirit by the
Howrah Municipal Corporation as directed by a
Coordinate Bench way back in 2024 in MAT 2495 of
2023.
11. Reference is made to the following decisions of the
Hon’ble Apex Court in support of the contention that an
unauthorized construction is a burden on the civic
amenities of the locality and cannot be allowed to
remain for a single day. The Hon’ble Apex Court also
9
held that regularization of major deviations could not be
permitted.
12. In the matter of Dipak Kumar Mukherjee v. Kolkata
Municipal Corpn. reported in (2013) 5 SCC 336, the
Hon’ble Apex Court held as follows:-
“24. In view of the pleadings filed before the High
Court and the affidavits filed before this Court,
there is no escape from the conclusion that
Respondent 7 had raised construction in violation
of the plan sanctioned under Section 396 of the
1980 Act and continued with that activity despite
the order of the Mayor-in-Council. In the prevailing
scenario, the representative of Respondent 7
might have thought that he will be able to pull
strings in the power corridors and get an order for
regularisation of the illegal construction but he did
not know that there are many mortals in the
system who are prepared to take the bull by horn
and crush it with iron hand.
25. Rule 25 of the Rules, on which reliance was
placed by Respondent 7 for seeking regularisation
of the illegal construction, reads as under:
’25. Deviation during execution of works.–(1) No
deviation from the sanctioned plan shall be made
during erection or execution of any work.
(2) Notwithstanding anything contained in sub-
rule (1), if during erection or execution of work any
internal alterations or external additions which do
not violate the provisions of the Act or these Rules
is made, the Municipal Commissioner may
without prejudice to any action that may be taken
against the person at whose instance such
alteration or additions have been made, allow the
person referred to in sub-rule (1) of Rule 4 to
submit, in accordance with the provisions of these
10
Rules, a revised plan showing the deviation and
may sanction such plan.
(3) Any departure made during the execution of
any work or at any time thereafter without
sanction shall be deemed to be in contravention of
the provisions of the Act and these Rules and
shall be dealt with accordingly.’
26. A reading of the plain language of Rule 25(1)
makes it clear that a person, who erects any
structure or executes any work is not entitled to
deviate from the sanctioned plan. Rule 25(2)
which contains a non obstante clause and
provides for sanction of revised plan to be
submitted by the person engaged in erection of
building or execution of work lays down that if
during erection or execution of work, any internal
alterations or external additions which do not
violate the provisions of the Act or the Rules is
made, the Municipal Commissioner can, at an
application made in that behalf sanction the
revised plan showing the deviation. Rule 25(3) is
declaratory in nature. It lays down that any
departure made during the execution of any work
or at any time thereafter without sanction shall be
deemed to be in contravention of the Act and the
Rules shall be dealt with accordingly.
27. In our view, Respondent 7 cannot take benefit
of Rule 25 because the disputed construction was
in clear violation of the sanctioned plan and the
notices issued by the competent authority of the
Corporation and also because the application was
made after completion of the construction.
28. Before parting with the case, we consider it
necessary to observe that Respondent 7 is guilty
not only of violating the sanctioned plan and the
relevant provisions of the 1980 Act and the Rules
framed thereunder but also of cheating those who
purchased portions of unauthorised construction
under a bona fide belief that Respondent 7 had
constructed the building as per the sanctioned
plan. With the demolition of unauthorised
11
construction some of such persons will become
shelterless. It is, therefore, necessary that
Respondent 7 is directed to compensate them by
refunding the cost of the flat, etc., with interest.
Respondent 7 must also pay for raising
construction in violation of the sanctioned plan.
29. It must be remembered that while preparing
master plans/zonal plans, the Planning Authority
takes into consideration the prospectus of future
development and accordingly provides for basic
amenities like water and electricity lines,
drainage, sewerage, etc. Unauthorised
construction of buildings not only destroys the
concept of planned development which is
beneficial to the public but also places unbearable
burden on the basic amenities and facilities
provided by the public authorities. At times,
construction of such buildings becomes hazardous
for the public and creates traffic congestion.
Therefore, it is imperative for the public authorities
concerned not only to demolish such construction
but also impose adequate penalty on the
wrongdoer.”
13. In the matter of Supertech Ltd. v. Emerald Court
Owner Resident Welfare Assn., reported in (2021) 10
SCC 1, the Hon’ble Apex Court held as follows:-
“159. The rampant increase in unauthorised
constructions across urban areas, particularly in
metropolitan cities where soaring values of land
place a premium on dubious dealings has been
noticed in several decisions of this Court. This
state of affairs has often come to pass in no small
a measure because of the collusion between
developers and planning authorities.
160. From commencement to completion, the
process of construction by developers is regulated
within the framework of law. The regulatory
12framework encompasses all stages of
construction, including allocation of land,
sanctioning of the plan for construction, regulation
of the structural integrity of the structures under
construction, obtaining clearances from different
departments (fire, garden, sewage, etc.), and the
issuance of occupation and completion
certificates. While the availability of housing
stock, especially in metropolitan cities, is
necessary to accommodate the constant influx of
people, it has to be balanced with two crucial
considerations — the protection of the
environment and the well-being and safety of
those who occupy these constructions. The
regulation of the entire process is intended to
ensure that constructions which will have a
severe negative environmental impact are not
sanctioned. Hence, when these regulations are
brazenly violated by developers, more often than
not with the connivance of regulatory authorities,
it strikes at the very core of urban planning,
thereby directly resulting in an increased harm to
the environment and a dilution of safety
standards. Hence, illegal construction has to be
dealt with strictly to ensure compliance with the
rule of law.”
14. In Friends Colony Development Committee v. State
of Orissa reported in (2004) 8 SCC 733, the Hon’ble
Apex Court dealt with a case where the builder had
exceeded the permissible construction under the
sanctioned plan and had constructed an additional floor
on the building, which was unauthorized. The Apex
Court held as follow:-
“24. Structural and lot area regulations authorise
the municipal authorities to regulate and restrict
the height, number of storeys and other
13structures; the percentage of a plot that may be
occupied; the size of yards, courts and open
spaces; the density of population; and the location
and use of buildings and structures. All these
have in our view and do achieve the larger
purpose of the public health, safety or general
welfare. So are front setback provisions, average
alignments and structural alterations. Any
violation of zoning and regulation laws takes the
toll in terms of public welfare and convenience
being sacrificed apart from the risk, inconvenience
and hardship which is posed to the occupants of
the building.”
Noting that the private interest of landowners stands
subordinate to public good while enforcing building
and municipal regulations, the Apex Court issued a
caution against the tendency to compound violations
of building regulations :
“25. … The cases of professional builders stand
on a different footing from an individual
constructing his own building. A professional
builder is supposed to understand the laws better
and deviations by such builders can safely be
assumed to be deliberate and done with the
intention of earning profits and hence deserve to
be dealt with sternly so as to act as a deterrent
for future. It is common knowledge that the
builders enter into underhand dealings. Be that
as it may, the State Governments should think of
levying heavy penalties on such builders and
therefrom develop a welfare fund which can be
utilised for compensating and rehabilitating such
innocent or unwary buyers who are displaced on
account of demolition of illegal constructions.”
14
Unauthorised floors have been held to be a burden on
general welfare and to be dealt with strictly.
15. In Priyanka Estates International (P) Ltd. v. State
of Assam reported in (2010) 2 SCC 27 the Hon’ble
Apex Court, observed as follows:-
“55. It is a matter of common knowledge that
illegal and unauthorised constructions beyond the
sanctioned plans are on rise, may be due to
paucity of land in big cities. Such activities are
required to be dealt with by firm hands otherwise
builders/colonisers would continue to build or
construct beyond the sanctioned and approved
plans and would still go scot-free. Ultimately, it is
the flat owners who fall prey to such activities as
the ultimate desire of a common man is to have a
shelter of his own. Such unlawful constructions
are definitely against the public interest and
hazardous to the safety of occupiers and
residents of multi-storeyed buildings. To some
extent both parties can be said to be equally
responsible for this. Still the greater loss would be
of those flat owners whose flats are to be
demolished as compared to the builder.”
16. The Apex Court observed that, in the event
unauthorised constructions were allowed to stand or
are “given a seal of approval by Court”, it was bound to
affect the public at large. In Esha Ekta Apartments
Coop. Housing Society Ltd. v. Municipal Corpn. of
Mumbai reported in (2013) 5 SCC 357, the Hon’ble
Apex Court observed as follows:-
“8. At the outset, we would like to observe that by
rejecting the prayer for regularisation of the floors
15constructed in wanton violation of the sanctioned
plan, the Deputy Chief Engineer and the appellate
authority have demonstrated their determination
to ensure planned development of the commercial
capital of the country and the orders passed by
them have given a hope to the law-abiding
citizens that someone in the hierarchy of
administration will not allow unscrupulous
developers/builders to take law into their hands
and get away with it.”
17. In the matter of Supertech (Supra), the Hon’ble Apex
Court discussed the duties of the civic bodies and
lamented the sorry state of affairs as under:-
“167. The Court further observed that an
unauthorised construction destroys the concept
of planned development, and places an
unbearable burden on basic amenities provided
by public authorities. The Court held that it was
imperative for the public authority to not only
demolish such constructions but also to impose
a penalty on the wrongdoers involved. This
lament of this Court, over the brazen violation of
building regulations by developers acting in
collusion with planning bodies, was brought to
the forefront when the Court prefaced its
judgment with the following observations : (Esha
Ekta Apartments case [Esha Ekta Apartments
Coop. Housing Society Ltd. v. Municipal Corpn.
of Mumbai, (2013) 5 SCC 357 : (2013) 3 SCC
(Civ) 89] , SCC p. 363, para 1)
“1. In the last five decades, the provisions
contained in various municipal laws for planned
development of the areas to which such laws are
applicable have been violated with impunity in
all the cities, big or small, and those entrusted
with the task of ensuring implementation of the
master plan, etc. have miserably failed to
perform their duties. It is highly regrettable that
this is so despite the fact that this Court has,
keeping in view the imperatives of preserving the
ecology and environment of the area and
protecting the rights of the citizens, repeatedly
cautioned the authorities concerned against
arbitrary regularisation of illegal constructions
by way of compounding and otherwise.”
16
168. Finally, the Court also observed that no
case has been made out for directing the
municipal corporation to regularise a
construction which has been made in violation of
the sanctioned plan and cautioned against doing
so. In that context, it held : (Esha Ekta
Apartments case [Esha Ekta Apartments Coop.
Housing Society Ltd. v. Municipal Corpn. of
Mumbai, (2013) 5 SCC 357 : (2013) 3 SCC (Civ)
89] , SCC pp. 394-95, para 56)
“56. … We would like to reiterate that no
authority administering municipal laws and
other similar laws can encourage violation of the
sanctioned plan. The courts are also expected to
refrain from exercising equitable jurisdiction for
regularisation of illegal and unauthorised
constructions else it would encourage violators of
the planning laws and destroy the very idea and
concept of planned development of urban as well
as rural areas.”
169. These concerns have been reiterated in the
more recent decisions of this Court in Kerala
State Coastal Zone Management
Authority v. State of Kerala [Kerala State Coastal
Zone Management Authority v. State of Kerala,
(2019) 7 SCC 248] , Kerala State Coastal Zone
Management Authority v. Maradu
Municipality [Kerala State Coastal Zone
Management Authority v. Maradu
Municipality, (2021) 16 SCC 822 : 2018 SCC
OnLine SC 3352] and Bikram
Chatterji v. Union of India [Bikram
Chatterji v. Union of India, (2019) 19 SCC
161] .”
18. In the same decision Supertech (Supra), the Hon’ble
Apex Court concluded as follows:-
“172. For the reasons which we have indicated
above, we have come to the conclusion that:
172.1. The order passed by the High Court for
the demolition of Apex and Ceyane (T-16 and T-
17) does not warrant interference and the
direction for demolition issued by the High Court
is affirmed.
172.2. The work of demolition shall be carried
out within a period of three months from the
date of this judgment.
172.3. The work of demolition shall be carried
out by the appellant at its own cost under the
17
supervision of the officials of Noida. In order to
ensure that the work of demolition is carried out
in a safe manner without affecting the existing
buildings, Noida shall consult its own experts
and experts from Central Building Research
Institute Roorkee (“CBRI”).
172.4. The work of demolition shall be carried
out under the overall supervision of CBRI. In the
event that CBRI expresses its inability to do so,
another expert agency shall be nominated by
Noida.
172.5. The cost of demolition and all incidental
expenses including the fees payable to the
experts shall be borne by the appellant.
172.6. The appellant shall within a period of two
months refund to all existing flat purchasers in
Apex and Ceyane (T-16 and T-17), other than
those to whom refunds have already been made,
all the amounts invested for the allotted flats
together with interest at the rate of twelve per
cent per annum payable with effect from the date
of the respective deposits until the date of refund
in terms of Part H of this judgment.
172.7. The appellant shall pay to the RWA costs
quantified at Rs 2 crores, to be paid in one
month from the receipt of this judgment.”
19. The Corporation will restrict its demolition in terms of
the demolition order in respect of the G+2 storied
building situated at 95/2, Madhusudan Pal Chowdhury
Lane.
20. The appeal is allowed. The order impugned is set aside.
21. The Howrah Municipal Corporation will complete the
entire process upon taking police assistance.
22. The respondent no.1 and his family members shall
vacate the premises within four weeks from date, upon
intimation to the Howrah Municipal Corporation and
18
the local police authorities and within 8 weeks
thereafter, the demolition shall be effected.
23. Accordingly, the appeal and the application are
disposed of.
24. There shall be no order as to costs.
25. Parties are to act on the server copy of this order.
(Shampa Sarkar, J.)
(Ajay Kumar Gupta, J.)
