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 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.)