14.09.2026 Court No. 12 Item No.05 Cp/Gb MAT 1160 of 2026 With CAN 1 of 2026 With CAN 2 of 2026 Md. Rafique Vs. The Kolkata Municipal Corporation & Ors. Mr. Kishore Dutta, Sr. Advocate Mr. Indrajit Bhattacharjee Mr. S. Bharadwaj …… for the appellant. Mr. Biswajit Mukherjee Mr. Debanjan Mukherjee …… for the K.M.C. 1. CAN 1 of 2026 is an application for condonation of delay in preferring the appeal. It appears that the appeal is delayed by 273 days. The averments in the application for condonation of delay indicate that the appellant was in the process of shifting on account of dismissal of the writ petition and in the fear that the authorities would demolish the structure without allowing the appellant adequate time. 2. Under such circumstances, considering the fact that the appellant had to house hunt in view of the order of demolition, which was weighing like an albatross, we condone the delay. 2 3. CAN 1 of 2026 is allowed. 4. The appeal is regularized. 5. The appeal arises out of an order dated September 16, 2025, passed in WPA 11469 of 2025. By the order impugned, the learned Single Judge dismissed the writ petition with cost of Rs.20,000/-. The cost was directed to be paid to the West Bengal State Legal Services Authority. His Lordship was of the opinion that, in an earlier round of litigation another Hon‟ble Division Bench had dismissed MAT 821 of 2024 and the prayer for regularization had already been negated by the said Division Bench. Cost of Rs.10,000/- was also imposed on the appellant, by the Division Bench. 6. Mr. Dutta, learned senior advocate for the appellant, submits that His Lordship failed to take into consideration that during the pendency of an application for regularization of the unauthorized construction, demolition could not be effected. His Lordship did not take into consideration the direction of the Hon‟ble Apex Court passed In Re: Directions in the matter of demolition of structures, reported in AIR Online 2024 SC 837. It was further contended that the decision of the Hon‟ble Apex Court in the matter of Rajendra Kumar Barjatya & Anr. Vs. U.P. Avas Evam Vikas Parishad & Ors, reported in AIR 2025 SC 3 259, was also overlooked by the learned Single Judge. Various directions were passed by the Hon‟ble Apex Court which were in addition to the directions of the Hon‟ble Apex Court in the matter of In Re: Directions in the matter of demolition of structures (supra). Mr. Dutta submitted that, to have one‟s home and one‟s courtyard was a dream of every heart. Their Lordships of the Hon‟ble Apex Court referred to a poem of the famous Hindi Poet „Pradeep‟. A house was a collective embodiment of the members of the family. Thus, the directions of the Hon‟ble Apex Court on the procedure to be followed before effecting demolition of an unauthorized structure, should have been followed by the KMC while exercising their statutory powers. 7. Mr. Mukherjee, learned advocate for the Kolkata Municipal Corporation, submits that the corporation had sanctioned a G+3 structure, but the appellant admittedly constructed a G + 6 structure. An order was passed under Section 400(8) of the Kolkata Municipal Corporation Act. A private individual, by alleging non-compliance of the provisions of law and non-implementation of the order passed by the Corporation under Section 400(8) of the said Act, approached the writ court. A learned Single Judge by an order dated June 24, 4 2024, disposed of WPA 27680 of 2023 along with the connected applications, granting liberty to the Corporation to complete the demolition work with the help of the local police. The occupants of the building had approached His Lordship with an undertaking that they would vacate the premises if they were allowed two months time to make alternative arrangements. This order was challenged in an appeal. MAT 821 of 2024 was dismissed with costs by a coordinate Bench. Thereafter, a writ petition was filed by the appellant praying for a direction upon the Corporation to consider the prayer for regularisation of the additional floors and/or whatever remained of the additional floors. 8. It is submitted by Mr. Mukherjee that partial demolition had taken place, but the entire unauthorized portion could not be demolished in view of the resistance offered by the appellant and his men and agents. He submits that the officials of the authority are facing a life threat. 9. We find that the learned Single Judge had directed demolition after a period of two months from the date of His Lordship‟s order, and the occupants were allowed to vacate the premises on the basis of their undertakings given to the court. We also find that the order passed by the learned Single Judge 5 was challenged in an appeal and Their Lordships did not find any infirmity in the order of the learned Single Judge. After the dismissal of the MAT 821 of 2024 with costs, the appellant filed the subject writ petition with a prayer that his representation dated May 6, 2025 should be considered by the Corporation and the issue of regularization should be decided in accordance with the amended provisions of the Kolkata Municipal Corporation Act, 1980. 10. The relevant portions of the said representation are quoted below: “Most respectfully the undersigned begs to submit the following for your kind consideration and necessary action. Owing to residential need in the family, 1, the undersigned along with my brother Md. Shafique had constructed a G+3 residential building where I reside with my family members. The said G+3 building was duly sanctioned by the concerned authority of the Kolkata Municipal Corporation by way of building permit No. 2015090045 dated 16.10.2015. The said G+3 structure was duly completed in keeping with such building permit. A photocopy of the building plan is enclosed herewith for your ready reference. Owing to further residential needs of the family, I have constructed the additional three floors. albeit, without any sanction. However, the said building is structurally stable as certified by the concerned Empanelled Structural Engineer of the Kolkata Municipal Corporation in an as made plan has also been prepared. Be it mentioned-here that out of the three floors, one floor has been completely demolishes Photocopies of the as-made plan as well as the structural stability certified is enclosed herewith for your kind perusal. 6 Additionally, please take note that the building at 25B, Ibrahim Road, Kolkata 700023 having Assesse No. 110780800185 has up-to-date property tax paid. Photocopy of the tax receipt is enclosed herewith for your kind perusal. In view of the facts as narrated above, I do hereby request your good self to kindly consider my prayer for retention of the remaining two floors of the building and I will be obliged to pay the necessary fees and penalty as your good office may determine in respect of the three additional floors.” 11. First and foremost, we do not accept the contention of Mr. Dutta that the learned Single Judge and the Corporation failed to appreciate the law laid down by the Hon‟ble Apex Court in the matter of In Re: Directions in the matter of demolition of structures (supra). The question which was before Their Lordships in the Hon‟ble Apex Court is quoted below: “An important question as to whether the executive should be permitted to take away the shelter of a family or families as a measure for infliction of penalty on a person who is accused in a crime under our constitutional scheme or not arises for consideration.” 12. A batch of writ petitions were filed before Their Lordships under Article 32 of the Constitution of India, in respect of grievances of various citizens whose residential and commercial properties had been demolished by the state machinery without following the due process of law, on the ground that they were involved as accused persons in criminal cases. 7 13. The facts are completely different here. In the present case, proceedings were initiated by issuance of a notice under Section 400(1) of the said Act. Order was also passed under the provisions of Section 400(8) of the said Act. A private individual approached the writ court alleging non-compliance of the statutory provisions by the Corporation. The writ court directed demolition of the unauthorized construction, after accepting an undertaking from the occupants that they would vacate the premises within two months. The order of His Lordship was challenged in an appeal. We find that a submission was made before Their Lordships for a direction upon the Corporation to consider the issue of regularization on the basis of a representation which was filed way back in 2018. Their Lordships held that the Corporation did not have the power to regularize rampant unauthorized constructions and the rules only permitted regularization of minor deviations. Three floors without any sanction could not be regularized and could hardly be qualify as minor deviations. The relevant portions of the Their Lordships‟ order are quoted below:- “Reckless builders, who raise constructions without obtaining requisite 8 prior permission from the Competent Authority, deserve no sympathy or leniency. Such people cannot expect any relief from a Court of law, far less a Court of equity, which the Writ Court is. One, who flouts the law, must suffer the consequences. Illegal constructions in the city of Kolkata, have assumed menacing proportions. Such constructions not only destroy the planned development of a city, but also put under tremendous pressure the civic amenities, which are not equipped to cope with unauthorized constructions. People, who take law into their own hands and put up constructions, more often than not for monetary gain, without obtaining prior sanction, should be dealt with in the strictest possible manner. It is true that the Building Rules, 2009, framed by KMC, were amended in 2015, to empower the Competent Authority in KMC to regularize minor unauthorized constructions. However, three floors raised without the 6 support of a sanctioned building plan, can hardly qualify as minor unauthorized construction. We see no reason to interfere with the order of the learned Single Judge impugned before us. The appeal being MAT/821/2024 and the connected application being IA No: CAN/1/2024 are dismissed with costs assessed at Rs. 10,000/- (Rupees Ten Thousand) to be paid to the High Court Legal Services Authority. Such payment is to be made within a fortnight from date. 9 The department shall forward a copy of this order to the Member Secretary of the High Court Legal Services Authority, who shall draw to our attention failure, if any, on the part of the appellants to pay the costs as directed above. Urgent photostat certified copy of this order, if applied for, be made available to the parties, upon compliance with all requisite formalities.” 14. To circumvent the order passed by Their Lordships, the appellant, very craftily, filed another application for regularization of the unauthorized construction as per an „As Made Plan‟ and such representation was accompanied by a structural stability certificate which was forwarded to the authority on May 6, 2025. 15. The appellant has demonstrated utter disrespect and disregard for the majesty of the Court. The representation is silent about the order that was passed by this Court in respect of the subject construction. The appellant has abused the process of Court. We are surprised that the authorities have also waited for so long. The unauthorized structure still remains, despite orders passed by the Court. 16. Although, Mr. Mukherjee raises a plea that the officers were facing life threats, one would clearly find that the learned Single Bench and the Hon‟ble 10 Division Bench directed assistance of the police. On account of such delay, the appellant has been approaching either the K.M.C. or the High Court by filing applications and writ petitions, thereby, obstructing the course of justice. 17. Under such circumstances, the appeal and the application being CAN 2 of 2026 are dismissed. Filing of multiple applications to stall the demolition proceeding is abuse of process of court. 18. We refer to the following decisions of the Hon‟ble Apex Court on the issue that unauthorized constructions should not bear the seal of the Court and if the Courts protect unauthorized constructions, they do so at the cost of the public. 19. 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. 29. It must be remembered that while preparing master plans/zonal plans, the Planning Authority takes into consideration 11 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.” 20. 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 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 12 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.” 21. 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 unauthorised. 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 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.” 13 22. Noting that the private interest of landowners stood subordinate to the 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.” 23. Unauthorised floors have been held to be a burden on general welfare must be dealt with strictly. 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 14 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.” 24. In EshaEkta 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 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.” 25. 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 : 15 (EshaEkta Apartments case [EshaEkta 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.” 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 : (EshaEkta Apartments case [EshaEkta 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 16 Chatterji v. Union of India, (2019) 19 SCC 161] .” 26. In the same decisionSupertech (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 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.” 17 27. In the matter of Kaniz Ahmed vs Sabuddin & Ors. reported in 2025 INSC 610, the Hon‟ble Apex Court held as follows:- “5. In one of our recent pronouncements, in the case of Rajendra Kumar Barjatya and Another v. U.P. Avas Evam Vikas Parishad and Others reported in 2024 INSC 990, we have made ourselves very explicitly clear that each and every construction must be made scrupulously following and strictly adhering to the rules and regulations. In the event of any violation, being brought to the notice of the courts, the same should be dealt with iron hands and any leniency or mercy shown to the person guilty of unauthorised construction would amount to showing misplaced sympathy. In our decision referred to above, we have issued the following directions: “(i) While issuing the building planning permission, an undertaking be obtained from the builder/applicant, as the case may be, to the effect that possession of the building will be entrusted and/or handed over to the owners/beneficiaries only after obtaining completion/occupation certificate from the authorities concerned. (ii) The builder/developer/owner shall cause to be displayed at the construction site, a copy of the approved plan during the entire period of construction and the authorities concerned shall inspect the premises periodically and maintain a record of such inspection in their official records. (iii) Upon conducting personal inspection and being satisfied that the building is constructed in accordance with the building planning permission given and there is no deviation in such construction in any manner, the completion/occupation certificate in respect of residential / commercial building, be issued by the authority concerned to the parties concerned, without causing undue delay. If any deviation is noticed, action must be taken in accordance with the Act and the process of issuance of completion/occupation certificate should be deferred, unless and until the deviations pointed out are completely rectified. (iv) All the necessary service connections, such as, Electricity, water supply, sewerage connection, etc., shall be given by the service provider / Board to the buildings only after the 18 production of the completion/occupation certificate. (v) Even after issuance of completion certificate, deviation / violation if any contrary to the planning permission brought to the notice of the authority immediate steps be taken by the said authority concerned, in accordance with law, against the builder / owner / occupant; and the official, who is responsible for issuance of wrongful completion /occupation certificate shall be proceeded departmentally forthwith. (vi) No permission /licence to conduct any business/trade must be given by any authorities including local bodies of States/Union Territories in any unauthorized building irrespective of it being residential or commercial building. (vii) The development must be in conformity with the zonal plan and usage. Any modification to such zonal plan and usage must be taken by strictly following the rules in place and in consideration of the larger public interest and the impact on the environment. (viii) Whenever any request is made by the respective authority under the planning department/local body for co-operation from another department to take action against any unauthorized construction, the latter shall render immediate assistance and co-operation and any delay or dereliction would be viewed seriously. The States/UT must also take disciplinary action against the erring officials once it is brought to their knowledge. (ix) In the event of any application / appeal / revision being filed by the owner or builder against the non-issuance of completion certificate or for regularisation of unauthorised construction or rectification of deviation etc., the same shall be disposed of by the authority concerned, including the pending appeals / revisions, as expeditiously as possible, in any event not later than 90 days as statutorily provided. (x) If the authorities strictly adhere to the earlier directions issued by this court and those being passed today, they would have deterrent effect and the quantum of litigation before the Tribunal / Courts relating to house / building constructions would come down drastically. Hence, necessary instructions should be issued by all the State/UT Governments in the form of Circular to all concerned with a warning that all directions must be scrupulously followed and 19 failure to do so will be viewed seriously, with departmental action being initiated against the erring officials as per law. (xi) Banks / financial institutions shall sanction loan against any building as a security only after verifying the completion/occupation certificate issued to a building on production of the same by the parties concerned. (xii) The violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution under the respective laws.” 6. The learned counsel appearing for the petitioner would submit that her client be given one chance to pray for regularisation of the unauthorised construction. We do not find any merit in such submission. A person who has no regards for the law cannot be permitted to pray for regularisation after putting up unauthorised construction of two floors. This has something to do with the rule of law. Unauthorised construction has to be demolished. There is no way out. Judicial discretion would be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. We are at pains to observe that the aforesaid aspect has not been kept in mind by many State Governments while enacting Regularisation of Unauthorized Development Act based on payment of impact fees. 7. Thus, the Courts must adopt a strict approach while dealing with cases of illegal construction and should not readily engage themselves in judicial regularisation of buildings erected without requisite permissions of the competent authority. The need for maintaining such a firm stance emanates not only from inviolable duty cast upon the Courts to uphold the rule of law, rather such judicial restraint gains more force in order to facilitate the well-being of all concerned. The law ought not to come to rescue of those who flout its rigours as allowing the same might result in flourishing the culture of impunity. Put otherwise, if the law were to protect the ones who endeavour to disregard it, the same would lead to undermine the deterrent effect of laws, which is the cornerstone of a just and orderly society.[See: Ashok Malhotra v. Municipal Corporation of Delhi, W.P. (c) No. 10233 of 2024 (Delhi High Court)]” 20 28. We enhance the cost to Rs.1,00,000/-to be paid by the appellant to the State Legal Services Authority, West Bengal, which shall be remitted to the fund of Juvenile Justice Committee of the High Court. 29. Parties are directed to act on the basis of the server copy of this order. (Shampa Sarkar, J.) (Arjun Ray Mukherjee, J.)