1 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present: The Hon’ble Justice Biswaroop Chowdhury C. O. 4032 of 2015 Biswaroop Bhattacharya & Anr. VERSUS Alaka Roy & Ors. With C. O. 4033 of 2015 Gopal Shaw & Anr. VERSUS Alaka Roy & Ors. With C. O. 4034 of 2015 Santanu Kanjilal & Anr. VERSUS Alaka Roy & Ors. For the petitioners: For the K.M.C.: For the opposite party No.1.: Mr. Sandip Kr. De, Adv. Mr. Alok Kr. Ghosh, Adv. Mrs. Sima Chakraborty, Adv. Mr. Jayanta Kr. Mandal, Adv. Mr. Sarthak Mondal, Adv. Last Heard on: August 03, 2026 Judgment on: September 21, 2026 2 Biswaroop Chowdhury, J: The above revisional applications were taken up analogously for their interconnectiveness. The petitioners in the Revisional Application have challenged the Order of Demolition dated 16-10-2012 passed by Learned Special Officer (Building) in Demolition Case No-22D/XII/10-11 which was affirmed in appeal before Municipal Building Tribunal by Judgment and order dated 18-09-2015, passed in B.T. Appeal No-110 of 2014, 5 of 2014 and 103 of 2013. The ground of challenge by the petitioners is that no opportunity was given to the petitioners to file objection to the allegations of KMC after getting the copies of the precis and the demolition sketch of the KMC or having inspection thereof. Secondly the allegation of conversion of car parking space into a residential unit by person responsible is factually wrong as the car parking space still exists. Thirdly the allegation of construction of flat on the ground floor is false. Fourthly the Learned Tribunal being the appellate authority did not consider any of the grounds formulated and/or placed before it. Fifthly Special Officer (Building) is not an officer to whom the power of Commissioner under Section 400 of the said Act could be delegated. 3 Heard Learned Advocates for the petitioners and Learned Advocate for respondent no-1 Aloka Roy and Learned Advocate for respondent no-2 Kolkata Municipal Corporation. Perused the materials on record. Learned Advocate for the petitioner submits that when the demolition proceeding initially started the opposite party No-1 Viz. Smt. Aloka Roy, the original owner of the said premises was the ‘Person Responsible’ (PR for short) for the alleged unauthorized construction in the said proceedings. However subsequently when the second round of demolition proceeding started after the Order dated 10th May 2011 passed by the Special Officer (Building) KMC was set aside by this Hon’ble Court the opposite party No-1 surprisingly and mysteriously, became the complainant instead of PR and the developer/promoter along with the subsequent purchasers became the PR. Learned Advocate also submits that since at any point of time the petitioners in these revisional applications neither could get the copies of the documents on the basis of which the proceedings were initiated nor get inspection of record they could never know how all these allegations in the record of the KMC took place and how a person shown as PR could subsequently become complainant in the same proceedings. Learned Advocate further submits that the allegations of unauthorized construction is with regard to i) Projection of cantilever on 1st, 2nd and 3rd floor, ii) construction loft and toilet WC, iii) shifting of inside brick walls on different 4 floors of the said premises within the same covered area and, iv) conversion of one car parking space into a residential unit. Learned Advocate also submits that the alleged deviation are well within the permissible limit and/or covered area which could very well be regularized including the change of user by invoking powers under Section 416 of the Kolkata Municipal Act 1980 (‘The 1980 Act’ for short). The alleged violations are not causing any inconvenience to any of the inmates of the building as alleged, furthermore there has been much hue and cry that all car parking spaces have been covered whereas despite the change of user at the ground floor, two car parking spaces are still there which are being used by the subsequent purchasers of the said premises. Learned Advocate submits that the foremost question involved in the revisional application is the authority and jurisdiction of the Special Officer (Building) KMC to pass demolition order as the Special Officer (Building) KMC is not the officer appointed in terms of the 1980 Act. Therefore the Special Officer (Building) KMC was not having any jurisdiction to pass the order of demolition. Therefore the demolition order passed by the special officer (Building) KMC suffers from the jurisdictional defect of coram non-judice. Learned Advocate relies upon the following Judicial decisions. Susama Saha VS The Kolkata Municipal Corporation and ors. Reported in 2015 SCC Online Cal-6198. 5 C.O. 1089 of 2008. Sri Nemai Naskar VS Sri Pradip Acharya and ors. Learned Advocate for the opposite party no-1 Aloka Roy submits that the Order of the Special Officer (Building) and the order of the learned Chairman Municipal Building Tribunal KMC are correct one. Learned Advocate further submits that according to Section 48 of the Kolkata Municipal Corporation Act 1980, the Municipal Commissioner could delegate any of his powers. Hence the Commissioner had rightly delegated his power to hear the demolition case to the special officer. Learned Advocate also submits that it is well settled law that if the amendment relates to procedure no person has a vested right in a course of procedure, he has only the right of proceeding in the manner prescribed, if by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode unless there is a different stipulation and in that event S. 6 General Clauses Act has no application. Learned Advocate relies upon the following judicial decisions. Sachindra Nath Karmakar VS Kolkata Municipal Corporation and ors. Reported in (2017) 2 WBLR (Cal) 168 Basanti Rani Ghosh VS Maniekhal Gupta and anr. 6 1991 SCC Online Cal-148. Shiv Shakti Coop Housing Society Nagpur VS Swaraj Developers and others. (2003) 6 SCC 659. Lakshmi Narayan Guin and others VS Niramjan Modok (1985) 1 SCC 270. M/S. Gopeshwar Iron and Steel Works Pvt. Ltd. and ors. VS Kolkata Municipal Corporation and ors. 2024(3) ICC. 825 (Cal). Nirmal Kumar Das VS The Kolkata Municipal Corporation and ors. APOT-21/2033 (High Court at Calcutta) Learned Advocate for Kolkata Municipal Corporation submits that Learned Special Officer (Building) on earlier occasion passed certain orders in connection with the Demolition case, and the petitioner challenged the same before this Hon’ble Court on different pleas. The last direction of this Hon’ble Court was passed in CO No. 942 of 2015, whereby the Learned Tribunal was directed to hear out all the appeals filed against the common order passed by the special officer (Building) analogously. 7 Learned Advocate further submits that so far as the authority of the said Sri M.K. Pal, the special officer (Building) to hear and pass the order in the Demolition case is concerned the Learned Tribunal recorded its view to the effect that the said special officer had been engaged by the Municipal Commissioner vide order dated 21-07-2012 being the employee of the Kolkata Municipal Corporation and during his tenure he passed the final order on 16th October 2012. Learned Advocate also submits that the developers/appellants did never raise issue earlier and they could have very well raised such issue before the special officer (Building) while he was hearing of the case. The said Sri M.K. Pal thereafter heard the matter and disposed of the Demolition case under specific directions of this Hon’ble Court in two occasions. It is submitted by the Learned Advocate that it is undisputed facts that major unauthorized construction were made in deviation from the sanctioned building plan and demolition proceedings was rightly initiated against the persons at whose instance the unauthorized constructions were made. Learned Advocate relies upon the following Judicial decisions:- WP 2698 (W) of 2012 With CAN 2292 of 2012. 8 Biswarup Bhattacharya and ors VS Kolkata Municipal Corporation and ors. (High Court at Calcutta) Sanatan Kanjilal and Anr. VS Biswaroop Bhattacharya and ors. C.O. 942 of 2015. (High Court at Calcutta) C.O. 3355 of 2017. Lalit Himattal Kampani VS The President Advertising Club. (High Court at Calcutta) C.O. 3722 of 2015 Md. Ayub and Anr. VS Municipal Commissioner KMC and ors. (High Court at Calcutta) Sachindra Nath Karmakar VS Kolkata Municipal Corporation and ors. (2017) 2 WBLR Cal-168. MAT 2279 of 2023. Bijay Biswakarma VS Raj Kumar Devi Sing and ors. (High Court at Calcutta) 9 CMCV VS Abid Hussain Reported in 2001(1) CHN. Now with regard to the jurisdiction of the special officer (Building) it appears that earlier a Writ application was filed by the petitioner Biswaroop Bhattacharya being WP. 2698(W)/2012, which was disposed by Order dated 18-4-2012 with certain directions upon special officer and the plea of jurisdiction was not taken. Similarly in CO 942 of 2015 where the said petitioner was a party this plea was also not taken. No objection was also raised before the Learned Special Officer, at the time of hearing. In this regard it is necessary to consider the observation made by a Learned Co-ordinate Bench of this Hon’ble Court in the case of Lalit Himattal Kampani. VS The President Advertising Club Calcutta and ors. (supra). The observation made are as follows:- ‘Lastly, as lucrative as the argument of inherent lack of jurisdiction may seem, such argument has a fallacy in the present context. To be of such a nature as to render an entire action a nullity, an absence of jurisdiction has to go to the very root of the action, such as to vitiate the entire action. There is a subtle difference between a lack of authority springing from a technical flaw in appointment of the person manning a quasi-judicial post and a statutory lack of jurisdiction behind an action arising from non-conferment of power by the relevant statute. While the latter may nullify the action itself, the former is a mere irregularity which is waivable at its worst. In fact, the requirement under Section 10 48 of the said Act, as interpreted in Susama Saha (supra), does not stipulate any essential qualification, absence of which would vitiate the very action, but is restricted merely to a requirement to be an employee or an officer of the Corporation. The Special Officer (Building) was in fact appointed by the Corporation and exercised powers under the Kolkata Municipal Corporation Act, 1980, though such appointment may have been in derogation of the procedure laid down in the Act. In such scenario, even if Susma Saha (supra) hits at the authority of the incumbent acting as a delegate of the Municipal Commissioner under Section 48 of the said Act to exercise a power under Section 400 thereof, such lack of authority cannot be elevated to such a high pedestal that it automatically nullifies all previous orders of the incumbent and renders void the entire proceedings even without a challenge. The objection as to jurisdiction sought to be taken by the opposite party no. 4 by way of cross-objection had to be taken specifically at the inception, but was not taken. Implicit in the nature of such objection is the principle that such objection is waivable. That is precisely what was done by the opposite party no. 4 and his predecessor-in-interest, the opposite party no. 1, whose shoes the opposite party no. 4 stepped into, having fully submitted to the jurisdiction of the hierarchy of forums which decided the matter.’ Thus in the facts and circumstances the point of jurisdiction of special officer (Building) cannot be taken at this stage. 11 Now with regard to the power of demolition of the Corporation Authority it is necessary to consider the provision contained in Section 400 of Kolkata Municipal Corporation Act 1980. Section 400 of Kolkata Municipal Corporation Act Provides as follows:- ‘400. Order of demolition and stoppage of buildings and works in certain cases and appeal. (1)Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act, or the rules and regulation made thereunder, the Municipal Commissioner may in addition to any other action that may be taken under this Act, make an order directing that such erection or work has been commenced or is being carried on or has been completed or within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to such person, as may be specified in the order: Provided that no order of demolition shall be made unless person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made : Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by as separate order, whether made at the time of the issue of the notice under the first 12 proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under subsection(3) (3).Explanation.- In this chapter, "the person at whose instance" shall mean the owner, occupier or any other person who causes the erection to any building or execution of any work to be done, including alterations or additions if any, or does it by himself. (2)The Municipal commissioner may make an order under sub-section (1) notwithstanding the fact that the assessment of such building has been made for the levy of the [Property tax] on lands and buildings. (3)Any person aggrieved by an order of the Municipal Commissioner made under sub-section (1) may, within thirty days from the date of the order, prefer an appeal against the order to the Municipal Building Tribunal appointed under Section 415. (4)Where an appeal is preferred under Sub-section (3) against an order made under sub-section (1), the Municipal Building Tribunal may stay the enforcement of the order on such terms, if any and for such period, as it may think fit: Provided that where the erection of any building or the execution of any work has not been completed at the time of the order made under sub-section (1), no order staying the enforcement of the order made under that subsection shall 13 be made by the Municipal Building Tribunal unless a surety, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal. (5)Save as provided in this section, no court shall entertain any suit, application or other proceeding for injunction or other relief against the Municipal Commissioner to restrain him from taking any action or making any order in pursuance of the provision of this section. (6)Every order made by the Municipal Building Tribunal on appeal and subject to such order, the order made by the Municipal Commissioner under subsection (1) shall be final and conclusive. (7)where no appeal has been preferred against an order made by the Municipal Commissioner under Subsection (1) or where an order under that subsection has been confirmed on, whether with or without modification, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be within the period, if any fixed by the Municipal Building Tribunal on appeal, and on the failure of such person to comply with the order within such period, the Municipal Commissioner may himself cause the building or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable form such person as an arrear of tax under this Act. (8)Notwithstanding anything contained in this Chapter, if the Mayor-in- Council is of the opinion that immediate action is called for in relation to a 14 building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing cause such building or work to be demolished forthwith.’ As submission is made with regard to the issue of deviation from plan as minor deviation which can be regularized it is necessary to consider Regulation 4 of Kolkata Municipal Corporation (Regularization of Building) Regulations 2015 which provides as follows:- ‘4. Terms and condition for regularization.- Any unauthorized erection or work may be regularized by the Municipal Commissioner or any of its officer delegated by him, provided that the erection or work is determined by the Municipal Commissioner or any of its officer delegated by him as “minor” as per regulation 3(1)(b) and 3(1)(c) of this regulation keeping regard to the following things: (a) Objections raised by any local inhabitants of the construction in question, (b) Road width and communication facilities, (c) Drainage system of the surrounding locality, (d) Other civic infrastructures, (e) Clearance from Fire and Emergency Services Department and Pollution Control Board, if required, 15 (f) Reasons beyond the control of the person responsible, (g) Social interest, (h) Facilities of ingress and egress, (i) Infrastructural supports at site, (j) Structural safety, (k) Fire safety, if required, (l) Environmental aspects, (j) Structural safety, (k) Fire safety, if required, (l) Environmental aspects, (m) Local complaints, (n) National loss in case of demolition, (o) Availability of other statutory clearances as will be required etc. with due regards to the spirit of law, any court order, as well as provisions of Kolkata Municipal Corporation Act, 1980 as amended up to date. Explanation.-“Local inhabitants” means the next door neighbour, or inhabitant of same locality, mohalla or otherwise connected to site of the construction, 16 “Person Responsible” means any person responsible for the unauthorized construction in question or any of his power of attorney-holders or representatives.’ Upon hearing the Learned Advocates and considering the facts of the case this Court is of the view that as dispute is raised with regard to certain factual aspect namely non converting of car-space, and existence of 2 car spaces, and that the deviation was a minor deviation, and that the Learned Tribunal did not consider the issue as to whether there was minor deviation and issue of Regularization by giving detail reasons on the said issue, the matter should be remitted to the Learned Tribunal to reconsider the Appeal. However an Advocate Commissioner is required to be appointed to conduct an enquiry and submit report before the Learned Tribunal for necessary consideration and decision. Thus Mr. Khairul Alam Advocate ph-9830300407 Bar Association Room no-10 and Ms. Molly Saha Advocate ph-9836912874 are appointed Joint Commissioners. Learned Advocate Commissioners upon notice to all parties and their Advocates shall visit the premises 578 Laskarhat Calcutta – 700038 and conduct enquiry on the following issues:- 1. Number of Flat owners/occupants of the said building 2. Number of car spaces in the Premises at present. 3. The car space converted to flat. 17 4. Objections/views of the flat owners with regard to the construction of building and facilities available. 5. Objections/views of adjacent house owner/occupier. Learned Commissioners shall take Photograph of the building as a whole and specific photograph with regard to i) Projection of cantilever on 1st, 2nd and 3rd floor. ii) Construction Loft and Toilet WC. III) Shifting of inside brick walls in different floors of said premises. Upon taking the photographs of the building and specified portions as above learned Commissioner upon taking the assistance of Corporation Engineer and staff who shall assist the Learned Advocate Commissioners report as to the effect of deviation if any on the safety of the entire building. Upon preparation of report Learned Advocate Commissioners shall submit the same before the Learned Building Tribunal: The enquiry and preparation of the report shall be completed within 4 weeks from the date of communication of this order and the report shall be submitted before the Learned Building Tribunal within one week from the date of re- opening after Puja Vacation. Learned Advocate Commissioners will be entitled to remuneration of 1000 G.M. each to be shared by all the petitioners. Incidental cost of inspection shall also be shared by the petitioners. Upon receipt of the report of Learned Advocate Commissioners Learned Tribunal shall consider the same and decide the Appeal in accordance with law upon hearing the parties, and during pendency of Appeal demolition order should not be implemented. Upon perusal of report if the Learned 18 Tribunal is of the view further inspection is necessary by Learned Advocate Commissioners Learned Tribunal may direct further inspection and fix further remuneration of Learned Advocate Commissioners. In the event Learned Tribunal does not direct further inspection Learned Advocate Commissioners will stand discharged. Thus these Revisional Applications C.O. 4032 of 2015, CO. 4033 of 2015 and CO. 4034 of 2015 stands disposed. The Judgment and Order dated 18-09- 2015 passed by Learned Municipal Building Tribunal Kolkata in BT Appeal No- 103 of 2013, 110 of 2014 and 5 of 2014 is set aside. The matter is remitted to the Learned Tribunal to reconsider and decide the Appeal in accordance with Law upon receipt of the report of Learned Advocate Commissioners as observed above. Learned Tribunal is requested to decide the appeal expeditiously and preferably within 3 months from date of receipt of report of Advocate Commissioner. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Biswaroop Chowdhury, J.)