Form No.J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present : The Hon’ble Justice Raja Basu Chowdhury WPA 1127 of 2026 With CAN 1 of 2026 With CAN 2 of 2026 Shams Tabrez Khan Versus The Kolkata Municipal Corporation & Ors. With WPA 18199 of 2026 Sharfaraz Alam Versus The Kolkata Municipal Corporation & Ors. For the petitioner : Mr. Prasenjit Barman In WPA 18199 of 2026 And the added respon- dent no. 1 to 13 For the State : Mr. Billwadal Bhattacharyya, Ld. AAG Mr. Sovan Mukherjee Ms. Sneha Chatterjee For the KMC : Mr. Alok Kumar Ghosh Mr. Nilotpal Chatterjee Ms. Susmita Chatterjee For the respondent : Mr. Adbul Hamid Molla no. 7 and 8 Mr. Asif Hussain Md. Abdul Halim Mr. Sahil Hamid Mr. Biswadeep Dey Md. Ijaz Ahmed Molla Heard on : 05.08.2026, 17.08.2026, 24.08.2026 & 15.09.2026 2 WPA 1127 of 2026 With WPA 18199 of 2026 Judgment on : 15.09.2026 Raja Basu Chowdhury, J (Oral): 1. On 17th August, 2026, this Court was pleased to pass the following order:- “1.Complaining inaction on the part of the municipal authorities to arrest and take steps against the illegal construction at Premises No.28/1 (part-A) Kavi Mohammad Iqbal Road, Ward No. 77, Borough-IX, Kolkata- 700073, a writ petition was filed. 2. On 11th March, 2026, when the matter was taken up for consideration, although the learned advocate for the petitioner in WPA 1127 of 2026 had contended that he had instruction to withdraw the writ petition, however, since the matter pertains to illegal construction, this Court while refusing to permit withdrawal was, inter alia, pleased to pass the following order:- “1. The present writ petition has been filed complaining in action on the part of the municipal authorities to arrest and take steps against the illegal construction at premises No. 28/1 (part A) Kavi Mohammad Iqbal Road, ward No. 77, Borough IX, Kolkata-700073. Although the petitioner would submit that he has instructions to withdraw the instant writ petition, however, since the matter pertains to illegal construction which itself is a social evil and since Mr. Chatterjee, learned advocate has 3 WPA 1127 of 2026 With WPA 18199 of 2026 placed before this Court a report dated 21st January, 2026 issued by the Executive Engineer(C), Building Department Borough IX, KMC wherefrom it would transpire that illegal construction has taken place, this Court has taken up the matter for consideration. 2. The report reveals that although a sanction was issued for construction of G+3 storied building vide building permit dated 12th April, 2023, the person responsible has constructed one additional floor over the G+3 storied building by encroaching the mandatory open space. 3. Following the above, a stop work notice under Section 401 of the KMC Act, 1980 (hereinafter referred to as the said Act) was issued. Since, the person responsible did not adhere to the stop work notice and defying the stop work notice continued with the construction work, a complaint was lodged with the police authorities on November, 2024 under Section 401(A) of the said Act. The matter was subsequently placed before the competent authority and an order of demolition of the unauthorized portion was passed under Section 400(8) of the said Act. Accordingly, the demolition program was arranged on 29th October, 2024. During the demolition work, the department had removed the wooden shuttering of the top floor. The report disclosed by the municipal authorities, however, does not 4 WPA 1127 of 2026 With WPA 18199 of 2026 elucidate with regard to the subsequent developments if any. 4. Having regard thereto, I direct the municipal authorities to carry out an inspection at the locale and file a fresh report when the matter is taken up next. The report must include the photographs of the building in question and the unauthorized portion, if the same still exists. 5. The State is directed to file a report before this Court as regards the status of the complaint lodged by the municipal authorities under Section 401(A) of the said Act on 5th November, 2024. The report should indicate the extent to which the investigation has progressed, if at all. Let the copy of the report as placed before this Court by Mr. Chatterjee in Court today be retained with the record. 6. List this matter on 30th March, 2026 under the same heading”. 3. Subsequently, on 8th June, 2026, the municipality had filed a report dated 28th March, 2026. The report would reflect sordid state of affairs. The same demonstrate that initially illegal construction of an additional floor was not only permitted to remain but also a further additional construction was allowed to come up by the municipal authorities, as the report shows that the building which had been sanctioned as G+3 storied building by passage of time, become six storied. It is in the peculiar facts this Court had 5 WPA 1127 of 2026 With WPA 18199 of 2026 called upon the Municipal Commissioner to file a report explaining the conduct. 4. Subsequently, on 2nd July, 2026, the report filed by the Municipal Commissioner was taken on record. In paragraph 8 of the report it was stated that the premises in question is situated within a narrow passage and is in close proximity to adjoining hutments and occupied structure, thereby necessitating extensive safety precaution and a caution-phased demolition process to avoid any risk to life and property. It was further brought to the notice of this Court that in continuation of the demolition proceeding invoked under Section 400(8) of the Kolkata Municipal Corporation Act, 1980, the same is in progress upon police intimation, on day to day basis, and photographs taken showing the progress of demolition work was also enclosed to the report. 5. Since then from time to time several orders have been passed. Demolition work also progressed. 6. Records would reveal that an appeal was filed by some of the occupants of the aforesaid premises before the Hon’ble Division Bench of this Court which was registered as MAT 1147 of 2026 with CAN 1 of 2026 and CAN 2 of 2026. The said appeal was disposed of by an order dated 17th July, 2026 by inter alia recording the followings:- 6 WPA 1127 of 2026 With WPA 18199 of 2026 1. “CAN 1 of 2026 is an application for leave to prefer an appeal. The appellants submit that they are in occupation of the unauthorized structure as tenants and they have been given a notice by the police to vacate the premises within three days. In such view of the matter, we grant leave to prefer the appeal. 2. CAN 1 of 2026 is allowed. However, we are not inclined to interfere with the order dated July 2, 2026, passed by the learned Single Judge of this 2 Court. The writ petition being WPA 1127 of 2026 is pending. 3. Mr. Chatterjee, learned advocate appearing for the Kolkata Municipal Corporation, raises the question of locus of the occupiers to challenge the proceeding on the ground that, apart from the person responsible for such illegal construction, no other person is required to be heard. No right had been created in favour of such persons. He relies on certain decisions of the High Court. 4. Mr. Bhattacharya, learned advocate for the appellants, on the other hand, submits that the steps which were taken by invoking the provisions of Section 400(8) of the Kolkata Municipal Corporation Act had lost their force, due to lapse of time. Such provision can be resorted to either stop or remove constructions which were likely to endanger the lives of the public and or if such constructions were hazardous or unsafe. 7 WPA 1127 of 2026 With WPA 18199 of 2026 5. We are of the view that, these issues will have to be decided by the learned Judge before whom the writ petition is pending. 6. We grant liberty to the appellants to be added in that proceeding. All points are left open for decision of His Lordship. 7. The construction is of a G+6 structure, although permission had been granted for G+3. The corporation was of the view that the building was within a narrow passage and there were hutments all around. 8. It is submitted that 6th floor had been demolished. Demolition of the remaining portion is awaited and the occupiers are yet to vacate. It is also submitted that the matter is fixed before His Lordship on July 20, 2026. The person responsible for the construction are not aggrieved by the order of His Lordship. 9. The corporation will cause an inspection and find out the number of occupiers in the building and the mode of user and submit a report before His Lordship on the next date. The issue whether the occupiers have any right to prevent demolition or resist demolition will be decided by the learned court. 10. Accordingly, the appeal and the connected application being CAN 2 of 2026 are disposed of. 11. Parties are directed to act on the basis of the server copy of this order. 8 WPA 1127 of 2026 With WPA 18199 of 2026 7. As would appear from the above, the Corporation was directed to cause an inspection and find out the number of occupiers in the building and the mode of user and submit a report before this Court. The issue as to whether the occupiers have any right to prevent demolition or resist demolition was directed to be decided by this Court. The report filed by the municipality dated 18th July, 2026 identified that at the 5th Floor level 6 nos. of flats exists out of which 2 nos. of flats are partly demolished and 4 nos. of flats are occupied. At the 4th floor level 5 nos. of flats exists all of which are occupied. 8. Accordingly, pursuant to the above order passed by the Hon’ble Division Bench this Court by an order dated 23rd July, 2026, noting that CAN 2 had been filed by the intervenors in terms of the liberty reserved by the Hon’ble Division Bench of this Court in MAT 1147 of 2026 and without deciding the rights of the applicants to object to an order passed under Section 400(8) of the Kolkata Municipal Corporation Act, 1980, allowed the application to the extent the intervenors be impleaded as party respondents in the present writ petition. 9. Another writ petition, being WPA 18199 of 2026, was also filed by one of the occupants of the aforesaid premises occupying the illegally constructed portion. Since 9 WPA 1127 of 2026 With WPA 18199 of 2026 then, all the above matters were heard from time to time and ultimately on 5th August, 2026, while responding to a query from the Court Mr. Hussain, learned advocate representing the respondent nos. 7 and 8 had sought for an accommodation to take appropriate instruction as to whether the respondent nos. 7 and 8 are interested to rehabilitate the occupants in any other authorized structure and vacate the additionally constructed floors beyond the sanctioned building plan. 10. Pursuant to the above, today an affidavit of undertaking of the respondent nos. 7 and 8 with the acknowledgement by the added 13 respondents has been filed wherein it has been stated that the respondent nos. 7 and 8 undertake that they are ready and willing to rehabilitate the added respondent nos. 1 to 13 presently occupying the additional floors of the said premises by providing them alternative residential accommodation in an authorized structure. It has also been stated that for arranging such alternative accommodation for all the occupants, a reasonable time is necessary and undertake to complete such rehabilitation within a reasonable period preferably two years. It has also been stated that upon rehabilitation and vacation of the respective portions by the added respondents, the respondent nos. 7 and 8 undertake 10 WPA 1127 of 2026 With WPA 18199 of 2026 to make the additionally constructed floors vacant and available to the Kolkata Municipal Corporation for taking steps in accordance with law. The tenants/added respondents nos. 1 to 13 have put their respective signatures in the aforesaid undertaking. 11. Insofar as the other occupier who had filed the writ petition, being WPA 18199 of 2026 has also filed an undertaking before this Court. 12. Let the aforesaid undertakings filed in Court today be taken on record. 13. In the subsequent undertaking filed by the petitioner in WPA 18199 of 2026, it has been stated that if the landlord/developer shifts the petitioner to a suitable accommodation nearby the said premises, the petitioner is willing to vacate the unauthorized portion. 14. Having heard the learned advocates appearing for the respective parties and going through the aforesaid undertakings, I am of the view that the above undertakings are not adequate. The concerned occupants must file individual undertaking agreeing to unconditionally vacate their respective portion. In any event, two years period does not appear to be a reasonable period by any stretch of imagination. 11 WPA 1127 of 2026 With WPA 18199 of 2026 15. Accordingly, this Court directs that in the event the occupants of the said premises who had been identified in the aforesaid undertaking, files unconditional undertaking before this Court within a period of seven days from date that they shall vacate the premises on or before 30th June, 2027, and intimation of vacating shall be given simultaneously with the vacating of the premises, the municipal authorities, for the time being, shall not take any steps. It is made clear if no undertaking is filed within the aforesaid period, the municipal authorities shall forthwith proceed and implement the order. 16. It is also made clear that no further extension shall be granted. The above direction has been passed considering the human problem involved. 17. List this matter under the heading “To Be Mentioned” on 24th August, 2026. 18. The municipal authorities and the Officer-in- Charge of the local police station must ensure that no further construction or reconstruction takes place during the interregnum upto the date of vacating the unauthorized structure by the occupants”. 2. Records would reveal that the writ petitioner in WPA 18199 of 2026 has also filed an undertaking, let the same be taken on record. 12 WPA 1127 of 2026 With WPA 18199 of 2026 3. Mr. Chatterjee, learned advocate appearing on behalf of the municipal authorities would, however, submit that in terms of the order dated 24th August, 2026, the municipality has carried out an inspection at the locale and has been able to identify that five several occupants who are residing with their families on the 4th floor, while there are six several occupants who are residing with their families on the 6th floor. The area under the occupation of the respective occupants on the 5th floor and the 6th floor have been identified in a sketch plan which has been annexed to the report. The sketch plan also records that the portion under the occupation of Md. Zarrar Hussain and Nazish Ikbal and the portion under the occupation of Md. Giyasuddin and Asiya Ahmed have been partially demolished. According to him, the portion under the occupation of the writ petitioner in WPA 18199 of 2026 is, however, still intact. 4. Having heard the learned advocates appearing for the respective parties and noting that the portions of the building have already been partially demolished, I am of the view that the partially demolished portions shall not be restored by the concerned occupants, however, insofar as other portions in respect whereof undertakings have been provided by the respective occupants such portions shall not be disturbed by the municipality till 30th June, 2027, within which the said occupants shall vacate the said premises in favour of the municipality, for the municipality to take appropriate steps in accordance with law. It is made clear if the 13 WPA 1127 of 2026 With WPA 18199 of 2026 occupants do not vacate their respective portions within the time specified in the order dated 17th August, 2026, the municipality shall proceed without further notice to the occupants and shall carryout the demolition proceedings in accordance with law with the assistance of the police authorities who shall be duty bound to ensure the aforesaid portions are vacated. 5. This order must be pasted on a notice board to be set up by the municipality on a conspicuous place in the said premises so as to make any intending purchaser aware of the aforesaid order. 6. The above order shall also not authorize occupants who had voluntarily vacated their respective portions to reoccupy the same. 7. With the above observations and directions, the writ petitions along with the connected applications stand disposed of. 8. Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite formalities. (Raja Basu Chowdhury, J.) sb A.R. (Court)