Calcutta High Court
Ashok Kumar Jain And Anr vs The Municipal Commissioner on 25 March, 2026
Author: Shampa Sarkar
Bench: Shampa Sarkar
od-1 & 2
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/36/2026
IA NO: GA/1/2026
ASHOK KUMAR JAIN AND ANR
VS
THE MUNICIPAL COMMISSIONER, KOLKATA
MUNICIPAL CORPORATION AND ORS
APOT/46/2026
RAJAT GARDEN RESIDENTS ASSOCIATION AND ORS.
VS
THE MUNICIPAL COMMISSIONER, THE KOLKATA
MUNICIPAL CORPORATION AND ORS.
BEFORE:
The HON'BLE JUSTICE SHAMPA SARKAR
The HON'BLE JUSTICE AJAY KUMAR GUPTA
Date: 25th March, 2026.
Appearance:
Mr. Arindam Banerjee, Sr. Adv.
Ms. Anamika Bari, Adv. ...for appellants in item no.1 and
Respondent nos.3 & 4 in item no.2.
Mr. Ankit Agarwala, Adv.
Ms. Alotriya Mukherjee, Adv.
Ms. Arpita Paul Biswas, Adv. …for respondent nos.3-5 in item no.1 and
Appellants in item no.2..
Mr. Gopal Chandra Das, Adv. …for KMC.
The Court: APOT/36/2026 and APOT/46/2026 both arise out of
the same interim order passed by the learned single Judge in WPO/870/2025
dated 19.2.2026. The writ petition was filed challenging the order passed by
the Municipal Building Tribunal dated 29.8.2025 in BT Appeal no.117 of
2012 by the appellants in APOT/36/2026. The point of maintainability of the
writ petition was raised by the appellants in APOT/46/2026 on the ground
that the High Court would not have jurisdiction under Article 226 of the
Constitution of India to entertain to the decision of the Municipal Building
Tribunal.
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It is contended by Mr. Banerjee, learned senior advocate for the
appellants in APOT/36/2026 that, as a condition for grant of stay of
demolition, deposit of security money for a sum of Rs.50 lakhs was not legally
permissible. The same was made refundable to the appellants in the event the
appellants were unsuccessful on the point of maintainability. It is submitted
that the order under challenge before the writ petition was not a money
decree. Under such circumstances, the provisions of Order 41 Rule 5(3) and
(5) of the Code of Civil Procedure would not be attracted. It is further
submitted that the writ petition is maintainable, as has been held by the
Hon’ble Apex Court time and again.
Mr. Agarwal, learned advocate for the private parties in the writ
petition and appellant in APOT/46/2026 submits that, the deposit of money
was directed as a condition for stay and to secure the cost awarded by the
Municipal Building Tribunal. He submits that the writ petition was not
maintainable. If a party is aggrieved by an order of a Tribunal, the remedy
would be under Article 227 of the Constitution of India. The facts of the case
in nutshell, prior to filing of the writ petition are discussed below.
A demolition proceeding had been initiated in respect of the
subject premises by the Special Officer [Building], Kolkata Municipal
Corporation by demolition case no.31-D/7/2012-13, BR-VII. The proceeding
was brought against one Mr. Sushil Kumar Jain of premises no.21,
Ballygunge Park Road, that is, the appellant no.2 in APOT/36/2026.
Although violation of the Building Rules had been detected, the prayer of the
appellants for retention of the unauthorized portion was considered. It was
found that a gate was fixed on the mandatory side open space, but the same
was not a permanent structure and could be removed at any time. Such gate
did not cause any obstruction to the free movement of any fire brigade
vehicle. It was found that the deviations were not so grave and serious. The
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infraction of the building rules could not be said to be major deviations.
Moreover, such deviations were within the sanctioned area.
Decisions of the High Court were relied upon to hold that the
deviations would not ipso facto result in demolition. Thus, the Special Officer
[Building] was of the view that sufficient cause in favour of the person
responsible for such constructions existed for retention of some of the
unauthorized portions. Accordingly, it was ordered that :-
“that no order for demolition is hereby passed in respect of
impugned unauthorised constructions subject to comply with the
following preconditions, within 30 days from the date of the
communication of this order. Those conditions are (1) P.R. must produce
a certificate from any KMC panelled Structural Engineer certifying that
the structural stability and the foundation of the impugned constructions
are safe and sound and the materials used as well as workmanship are
as per the latest edition of National Building Code of India, (2) he must
furnish an affidavit declaring on oath that he will not make any
construction whatsoever in the impugned premises without prior
sanction from the KC authority, (3) he must furnish a N.O.C. from W.B.F.
& E.S. if not furnished earlier and (4) he must pay the necessary
retention charges of the KMC as calculated by the deptt. in a separate
sheet of paper attached and supplied with this final order. On non
compliance of either of the conditions within the above stated specified
period the KMC authority shall demolish the same at the cost and at the
risk of the P.R.
Copy to P. R. for his/her information and necessary action.”
In compliance with the said order, it is contended that regularization
charges as demanded by the Corporation had been paid.
Aggrieved by the decision of the Special Officer [Building] an appeal
under section 400(3) of the Kolkata Municipal Corporation Act, 1980 was filed
by the Rajat Garden Residents Association, that is, the appellant in
APOT/46/2026.
The Municipal Building Tribunal was of the view that the findings of
the Special Officer [Building] were not tenable in law and the distinction
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sought to be made by the Special Officer [Building] in respect of the major,
grave and non-grave constructions, were contrary to law. Reference was made
to the decision of the Calcutta High Court in Ghanashyam Das vs. Kolkata
Municipal Corporation. It was recorded that, there were violations of the FAR
and those could not be regularized. Cost of Rs. 10,00,000 was awarded to the
Association.
This order has been challenged by way of a writ petition in
WPO/870/2025. The point of maintainability of the writ petition was raised
by Mr. Agarwal before His Lordship. His Lordship was of the view that on
account of voluminous records and because all the records were not
available, the issue of maintainability could not be decided at the initial stage.
The writ petition was required to be heard. However, considering the fact that
the dispute was with regard to an unauthorized construction, His Lordship
was of the view that a sum of Rs.1 crore should be deposited by the appellant
in APOT/36/2026. It was further recorded that, instead of Rs.1 crore a sum
of Rs.50 lakhs should be deposited, as suggested by the learned advocate for
the appellant in APOT/36/2026. The deposit was to be made with the
Registrar, Original Side, of this Court within eight weeks from date of the
order. It was directed that in case the petition was dismissed on the ground of
maintainability, the deposit shall be returned to the petitioner upon
compliance of formalities. However, the order is silent as to what would be the
fate of the money if the writ petition failed on merits. Secondly, when the
order under challenge is not a money decree, the question of deposit of either
Rs.1 crore or Rs.50 lakhs did not arise. This is a case where the authority of
the Corporation, in exercise of discretion and power under the statute,
regularized the deviations. The Tribunal was of the view that the
regularization was improper and directed demolition. The dispute is whether
the demolition order was justified or whether the regularization/ retention
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order was justified. This aspect has to be decided upon by His Lordship, first
being satisfied that the writ was maintainable in view of the specific allegation
of Mr. Agarwal. Mr. Agarwal submits that the order impugned may be vacated
and the learned trial Judge may be directed to hear out the writ petition on
the point of maintainability first. He submits that, there should not be any
order of stay of the demolition in the meantime.
He submits that the question of jurisdiction to hear the writ petition
must be decided by His Lordship. Unless the point of jurisdiction was
decided, order of stay could not be passed. Reliance is placed on the decision
of the Apex Court in Asma Lateef And Another vs. Shabbir Ahmad And
Others, reported in [2024] 4 SCC 696.
We are not inclined to decide on the point of maintainability of writ
petition as this point has to be decided by His Lordship. We are only on the
issue as to whether, as a condition for stay of demolition, money could have
been directed to be secured. In our considered view, the facts of this case do
not require such a harsh measure.
With regard to Mr. Agarwal’s contention that such order was passed to
secure the cost awarded by the Tribunal, is not borne out by the facts.
Although, the order reflects that the learned Advocate for the appellants
conceded to deposit Rs. 50 lakhs, the law is well settled, that such
submission would not bind the appellants, in the absence of a formal
authorization to the learned Advocate to make such submission.
Now, the question arises as to whether, till the decision is taken by His
Lordship on the point of maintainability of the writ petition, the demolition
order should be allowed to be implemented. In our view, the appellants in
APOT/36/2026 were successful before the Special Officer [Building]. Upon
payment of certain amount towards regularization of the unauthorized
portions, they retained those portions. Such order was challenged in the
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appeal and reversed. The order is now under challenge in a writ court. There
are two questions before the writ court. First, whether the jurisdiction of the
writ court extended to the adjudication of the correctness of the order of the
Municipal Building Tribunal, in exercise of power under Article 226 of the
Constitution of India or whether the sole remedy of the appellants in
APOT/36/2026 would be before the High Court under Article 227 of the
Constitution of India. Secondly, if the maintainability is decided in the
affirmative, whether the decision of the Municipal Building Tribunal was
erroneous or whether the decision of the Special Officer [Building] was
erroneous. The above two issues are yet to be decided. If demolition takes
place, nothing survives before the writ court and the writ petition becomes
infructuous. The situation will become irreversible as the property of the
appellants will be broken down without the appellants getting an opportunity
to have their writ petition heard and/or without throwing a proper challenge
to the order of the Building Tribunal. On the other hand, the demolition can
take place at anytime after the issues are decided, even if the same is delayed
on account of the litigation.
Under such circumstances, we direct that the demolition order will
remain stayed for a period of two months, within which time the question of
maintainability of the writ petition shall be decided by His Lordship. The
matter will proceed on the basis of such determination. We make no
observations on the merits of the claim of either of the parties. His Lordship
will decide all issues independently. This order of stay is only to balance
equities, but shall not prevail upon the learned Judge while deciding the
matter.
The impugned order is set aside.
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Both the appeals and the applications are disposed of accordingly.
(SHAMPA SARKAR, J.)
(AJAY KUMAR GUPTA, J.)
pkd.
