Surendar Kanu vs Madan Kanu & Ors on 8 April, 2026

    0
    32
    ADVERTISEMENT

    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

    SPONSORED

    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
    12

    framework 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
    13

    structures; 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
    15

    constructed 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.)



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here