OD 2 ORDER SHEET IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE IA NO. GA/4/2026 In APO/14/2026 SUBODH KUMAR AGARWAL AND ORS. Vs STATE OF WEST BENGAL AND ORS BEFORE: The Hon’ble JUSTICE SHAMPA SARKAR AND The Hon’ble JUSTICE AJAY KUMAR GUPTA Date: 5th August, 2026. Appearance: Mr. Maloy Kr. Roy, Adv. Mr. Nil Kamal Ghosh, Adv. Mr. Pradyot Kr. Das, Adv. …for the appellants Mr. Siddharta Banerjee, Adv. Mr. Lutful Haque, Adv. Ms. Taharima Khatun, Adv. …for the applicant Mr. Nand Gopal Khaitan, Adv. Mr. Atanu Basu, Adv. …for the State Mr. Biswaroop Bhattacharya, Adv. Mr. Sounak Bhattacharya, Adv. Mr. Sounak Mandal, Adv. Mr. Abhirup Halder, Adv. Ms. Bipasha Bhattacharyya, Adv. …for respondent no. 10 Mr. Nilotpal Chattterjee, Adv. Ms. Tanushree Dasgupta, Adv. …for KMC. The Court: We find that the order impugned cannot be sustained for the simple reason that, when the demolition proceeding had just been initiated and no final order was passed, the question of preferring an 2 appeal against such order did not arise. Rather, His Lordship should have directed the Special Officer (Building), Kolkata Municipal Corporation (KMC) to complete the proceeding and reach the same to its logical conclusion in view of the previous order passed in other litigations. The 7th and 8th floors of the building were found to be unauthorised. In the earlier rounds of litigation, a report had been filed by the Kolkata Municipal Corporation indicating that the 7th and 8th floors were unauthorised, as sanction had been given for a G+6 structure. With regard to the 7th and 8th floors, we find a report had been prepared by the Kolkata Municipal Corporation in connection with WPO 161 of 2024. The concluding portion of the said report is quoted below : “Considering above facts and observations, department opined & considered that the construction of seventh & eighth floor is unauthorized in nature & to initiate proceeding u/s 400 of KMC Act 1980, notice u/s 401 of KMC Act 1980 is issued along with service of P.I to local P.S. Measurement of unauthorized construction, preparing d/sketch, infringement statement is going on & will be placed before authority for further proceedings soon.” Another learned Single Judge had directed the Corporation to make a spot inspection and file a report. The dispute relates to premises No. 1, Ganesh Chandra Avenue, Ward No. 46, Borough-VI. In the order dated April 1, 2024, passed in WPO 161 of 2024, Her Lordship recorded that the report of the engineers did not clearly indicate whether the top floors had been constructed after obtaining sanction from the Corporation. Engineers were directed to conduct a spot inspection to ascertain whether the construction was authorised 3 or not. The Corporation was also directed to verify the records to ascertain such issue. On April 15, 2024, Her Lordship recorded that a report was filed by the Sub-Assistant Engineer (Civil), Assistant Engineer (Civil) and the Executive Engineer (Civil)/Building/Borough-VI dated April 13, 2024. From the spot inspection that was conducted, unauthorised construction was detected. The Corporation had issued notice under Section 401 of the Kolkata Municipal Corporation Act, 1980, and proceedings under Section 400 of the Kolkata Municipal Corporation Act, 1980 had already started. The report also reflected the measurement of the unauthorized construction, a demolition sketch map and infringement statements. Her Lordship recorded that unauthorised construction had been detected long ago and directed the Corporation to proceed and deal with such finding in accordance with law. The proceeding was directed to be concluded within a period of sixteen weeks from the date of communication of the order. Her Lordship further recorded that, the appellant had submitted that the private respondents had threatened the appellant for having initiated the proceeding. Liberty was granted to the appellant to approach the police. Thereafter Hemraj Mahabir Prasad Ltd. was issued notice by the Special Officer (Building) KMC, being the entity responsible for such construction in connection with the Demolition Procedure. Pages 169 and 170 of GA 1 of 2026 demonstrates the nature of the infringement and the order of the Special Officer (Building). The order dated August 14, 2024 recorded as follows : “As reported this is an existing eight storied + tin shed on roof building. Department issued notice/s 411(1) for demolition of the dangerous portion and to take up repairing and strengthening the rest portion on supervision of ESE. Notice u/s 400(1) has been issued on 10.06.2024 for construction of two additional floors over existing seven storied. Both P.R. and 4 Complainants are requested to furnish written submission within a period of 15 days from the date of communication of this order.” The matter came up for hearing on March 19, 2025. The infringement of building rules and the area of unauthorised construction was reflected in the order passed, pursuant to the said hearing, dated June 9, 2025. “As per report from concerning Borough-Infringement statement of Building Rule 2009. Rules Description Required Provided Remarks 64 Front Open Space 6.0 m Nil Infringes 64 Rear Open Space 9.0 m Nil Infringes 64 Side -1 Open Space 6.5 m Nil Infringes 64 Side-2 Open Space 6.5 m Nil Infringes 69 F.A.R. 2.5 877 approx Infringes 70 Ground Coverage 40% 100% Infringes 123 Fire Fighting Not any document submitted 133 Structural Design Unknown. 134 Quality of materials & workmanship Unknown Area of unauthorised construction: 856 sqm. Area of change of use: Not done yet ORDER Interim Order has been passed on 19/09/2024 as follows: As per Assessment Record this is VIII + tin shaded old building which is occupied since long. According to P.R., after purchasing a brick built structure age of more than 60 taken up renovation works to secure the structure. Complainant could not produce justified evidence / sanction plan for detection of unauthorised construction made in near past. Notice u/s 411(1) has been issued 10.08.2023 to secure the dilapidated structure under supervision of In my opinion without justified reason, demolition of part of building occupied since long may lead several hazard including structural disorder. 5 In these circumstances, it is suggested to check up the health of the old structure by Structural Engineer (ESE) supported by necessary tests from reputed institution and expert agency in conformity of Structural Stability. The recommendation must be complied by the occupiers at their risk and cost. P.R./ occupiers must inform department in details regarding the works to be taken up. Fire Safety measures must be taken up as recommendation of WBF&ES. Owners / Occupiers are requested to produce file safety recommendation/NOC from WBF&ES. P.R. and Complainant both are requested to provide the above within a period of two months. In case of non-compliance action, as per Law will be taken by department. In case of any accident due to collapse or fire hazard occupiers will be liable.” The Special Officer Building was of the opinion that without justified reasons, demolition of part of the building occupied since long may lead to several hazards, including structural disorder. Thus, the structural stability of the building was a matter of grave concern. Under such circumstances, it was suggested that the health of the old structure should be checked up by conducting necessary tests by a reputed institution and expert agency. The recommendation was directed to be complied with by the occupiers at their risk and cost. The person responsible and occupiers were directed to inform the department in details regarding the works to be adopted. It was also stated that fire safety measures must be taken up as per recommendation of WBF&ES and owners and occupiers were requested to produce fire safety recommendation / NOC from WBF&ES. It was further clarified that, in case of non-compliance, action would be taken as per law by the department. In case of any accident due to collapse or fire hazard, occupiers would be liable. KMC remained a silent spectator, and 6 the writ petition was filed. The respondents have not been able to satisfy that, the remedial measures to secure the building had been undertaken. Thus, the fact that there is an interim finding by the Special Officer (Building) that the structure is unstable, that the 7th and 8th floors are unauthorized and fire regulations have not been complied with, are available on record. The occupiers were aware of the proceeding in respect of the said building. The dispute had been continuing since long. By orders of the High Court several spot inspections were held. They did not even challenge the orders passed in the proceeding. They did not controvert the reports. The applicants in GA 2 of 2026 also did not take steps until we directed that the 7th and 8th floors should be sealed. Under such circumstances, the Learned Single Judge should have relegated the matter to the Special Officer (Building), by directing steps in accordance with law and completion of the proceeding. In spite of being aware of the unauthorized construction, His Lordship relegated the appellant to the appellate forum before the Demolition Proceeding could be concluded. With regard to applicants in GA 2 of 2026, it appears that they claim to be occupiers and submit that, as they were given notice under Section 411(1) of the Kolkata Municipal Corporation Act, they have the right to be heard, protect the property and use the same as per the terms and conditions of alleged leases. They have relied on a deed of lease executed between Hemraj Mahabir Prasad Ltd. and Imran Khan. They have also relied on some other documents. Mr. Banerjee refers to the notice under 7 Section 411 of the said Act, which was issued by the Corporation to the owner/occupiers of the premises, requesting them to either demolish or make necessary repairs to strengthen the dilapidated portions under supervision of KMC’s empanelled structural engineer. In the notice issued under Section 411(1), we do not find the names of the applicants. In any event, the right, title or nature of occupation of the applicants are not relevant. The only issue to be decided is whether the unauthorised construction on premises no. 1, Ganesh Chandra Avenue, Ward No. 46, Borough-VI, Kolkata 700013, should be dealt with in accordance with law or not. They seek to be added as parties and make their submissions. On the last occasion, we had directed KMC to seal the 7th and 8th floors, which were not only unauthorised but unsafe. KMC has not complied with our direction on the specious plea that they need to construct a collapsible gate to seal the entrance. We do not appreciate such stand and we take judicial notice of such failure and disregard to the order of Court. We grant one opportunity to comply. The unexplained delay on the part of KMC have emboldened the occupiers to file modification applications and seek a declaration that the floor can be used. In spite of the finding relating to hazardous condition of the building, KMC remained non-complaint. GA 2 and 4 of 2026 are applications for modification of the earlier order dated June 30, 2026 by which we had directed sealing of the 7th and 8th floors. We are not inclined to modify the order and we have given our 8 reasons. Moreover, the report filed before us in this appeal by KMC, categorically stated as follows:- “Nobody present at the inspection was able to furnish any information/documents in respect of the sanction of the said building. A note was also initiated to the Superintendent of Records to provide sanction plan (if any) for premises no 1G.C Avenue, Ward No. 046, Borough-Vl. In their reply dated 30.05.2026, it is informed that no such building plan found in their records. Hence, from the above, it can be observed that the two floors as raised above the roof of sixth floor keeping offset of two feet from parapet wall is not as per KM Building Rule 2009. On visual inspection, the exact age of the two floors could not be specified. Hence, a note was also initiated to Assessor Collector (North) to provide all available IB copies for premises no 1 G.C Avenue, Ward No. 046, Borough-Vl. In their reply dated 11.06.2026, Assessor Collector (North) submitted IB copies for premises no 1 G.C Avenue, Ward No. 046, Borough-VI for quarter 2/97-98, quarter 2/2003-04, quarter 4/2004-2005, quarter 1/2005-2006, quarter 2/2005-2006, quarter 3/2005-2006, quarter 2/2009-10, quarter 3/2009-10. In all the IB copies, the building is mentioned as VII storied, whereas in the IB copy of quarter 2/2009-10, the building is mentioned as VIII + Tin shed, but, in IB copy of quarter 3/2009-10, building is mentioned as VII storied. Thus, from the above review of Assessment Collection department of Kolkata Municipal Corporation & also as per departmental inspection, it car, be concluded that the seventh and eighth floor are raised illegally above seven storied building and does no: have any authentic sanction plan from corporation authority and the age of the two floors that is seventh and eighth floor appear to be approximately more than fifteen years.” Thus, the appeal and the applications are disposed of with a direction upon the Kolkata Municipal Corporation to complete the proceeding initiated by the Special Officer (Building) upon giving hearing to all the parties before us, including the applicants in GA 2 of 2026 who will be represented by any one of them. It is made clear that any other officer designated to perform the duties of the Special Officer (Building) shall conduct the hearing. However, 9 if the other occupants have any submissions to make, they can make the same through Hemraj Mahabir Prasad Ltd. Each and every occupant need not be heard, that is also not provided under the law. The proceedings shall be reached to its logical conclusion by passing a reasoned order. Consequential steps shall be taken as per the reasoned order, including demolition. The entire exercise shall be completed within three months from the date of communication of this order. The earlier order of sealing the 7th and 8th floors remain unchanged. The specific finding of the Special Officer (Building) is that the building is structurally unstable. Fire safety equipments are absent. Thus, we are of the view that those two floors shall not be utilised in any manner. We deem it prudent to seal 7th and 8th floor. The occupants can be allowed 24 hours to remove their goods. KMC will seek assistance of police, if there is any further resistance during the sealing process. All parties are to act on the basis of server copy of the order. (SHAMPA SARKAR, J.) (AJAY KUMAR GUPTA, J.) TR/