Calcutta High Court (Appellete Side)
Dharmendra Kumar Yadav & Anr vs The Howrah Municipal Corporation & Ors on 31 March, 2026
Author: Shampa Sarkar
Bench: Shampa Sarkar
Item No.13
31.03.2026
Court. No. 12
GB
MAT 574 of 2026
With
CAN 1 of 2026
With
CAN 2 of 2026
With
CAN 3 of 2026
Dharmendra Kumar Yadav & Anr.
Vs.
The Howrah Municipal Corporation & Ors.
Mr. Anjan Bhattacharyya,
Mr. Sunny Nandy,
Ms. Oindrila Ghosal,
Mr. Rajib Maity
... for the Appellants.
Mr. Sandipan Banerjee,
Mr. Ankit Sureka
... for the H.M.C.
Mr. Pradeep Kumar
... for the Respondent No.7.
1. The appellants claim to be occupiers of an
unauthorized construction which has been directed
to be demolished by a learned Single Judge in WPA
28830 of 2024.
2. CAN 3 of 2026 is an application for condonation of
delay of 462 days in filing the application for leave to
appeal and the appeal. The grounds for condonation
of delay are lack of knowledge of the proceedings
initiated by the Howrah Municipal Corporation as
also of the litigations which were going on before the
High Court with regard to the said unauthorized
construction.
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3. It is submitted by the learned advocate for the
appellants that only when the corporation pasted a
notice of demolition on the wall of the premises, the
appellants came to know about the order of
demolition. Under such circumstances, it is prayed
that the delay be condoned.
4. Mr. Banerjee and Mr. Kumar, learned advocates who
appear for the corporation and the
complainant/neighbour submit that the occupiers
were all along aware of the proceedings. Mr.
Banerjee submits that the corporation had granted a
hearing to the landlord, the promoter and the
complaint, before the authority came to a finding
with regard to the unauthorized construction.
5. The landlord had filed the writ petition in which the
order impugned had been passed, by challenging a
demolition notice. The specific case of the landlord
was that the demolition had already taken place and
as such, further demolition was not required. His
Lordship upon considering such facts, appointed a
learned advocate as a special officer to carry out an
inspection and find out whether there was any
unauthorized construction on the building even after
partial demolition. The report of the special officer
has been quoted by His Lordship, which is as
follows:-
"I, Debasish Chatterjee [L.B.S.
No.84(1) of HMC], have visited the sit on
06.12.2024 at premises no.22, Bijay Kumar
Mukherjee Road, P.S. Golabari, District-
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Howrah-711 106, Ward no.15, under H.M.C.
as requested by Spl. Officer Mr. Utpal
Maitra. On spot I have found Mr. Maitra,
Mr. Soumen Patra (Sub-Assistant Engineer,
H.M.C. Borough-II, who also assisted me by
providing Sanction Building Plan of the
said premises) and others. In their present I
have taken measurement of the said
existing Three storied building. It is
observed as follows:
Total Asmade Floor Area of the
Building = 506.823 sqm.
Total Sanctioned Floor Area of the
Building = 285.411 sqm.
Total Deviated Floor Area of the
Building = 221.412 sqm.
It is also found that total Area
Demolished by H.MC. Authority = 0.88
sqm. (more or less) with a small portion of
Parapet wall in the South-East part of the
building. Remaining Deviation part of the
building = 220.532 sqm."
6. Under such circumstances, His Lordship directed
that the landlord should vacate the premises within
a month so that the demolition can take place.
Alleging violations of the order of His Lordship
contempt application has been filed. We are not
sitting in appeal over the order passed in the
contempt application and as such, we are not
inclined to interfere with the order passed in the
contempt application, by which a date for demolition
has been fixed. The deviation amounts to 220.532
Sqm, which is a major deviation.
7. The law provides that a person who is responsible
for an unauthorized construction, is required to be
heard. Reference is made to Section 177(1) of the
Howrah Municipal Corporation Act, which is quoted
below:-
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"177. Order of demolition or stoppage
of buildings and works.
1. Where the erection of any building or the
execution of any work in pursuance
thereof has been commenced, or is being
carried on, or has been completed without
or contrary to the sanction or in
contravention of any of the provisions of
this Act or the rules and the regulations
made thereunder, the Commissioner may
in addition to any other action that may
be taken under this Act, make an order
directing that such erection or work shall
be stopped or demolished or such addition
or alteration thereto be made as the
Commissioner considers necessary, by the
person at whose instance the erection or
the work has been commenced, or is being
carried on, or has been completed
:Provided that no order under this
provision shall be made unless such
person has been given a reasonable
opportunity of being heard in accordance
with such procedure as may be
prescribed.[Provided also that the
Commissioner may by order, on such
terms and conditions and on payment of
such fees as may be prescribed by
regulations, regularize the minor
unauthorized erection, or execution of any
minor work without sanction under this
Act, or minor deviation from the
sanctioned plan or execution of any minor
erection or work in contravention of any
sanctioned plan under this Act or the rules
or the regulations made thereunder, as
the case may be:Provided also that the
Commissioner may, by order, delegate his
powers and functions under the first and
the second proviso of this sub-section to
the Special Officers, appointed by the
Commissioner with the approval of the
State Government on such terms and
conditions as may be determined by the
Corporation, and the expenses for
payment of such officers shall be borne on
from the Municipal Fund.
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8. Thus, the person at whose instance the construction
had commenced and who had raised the
construction were heard.
9. Under such circumstances, the contention of the
appellants that appellants were not aware of the
proceedings and as such could not make their
submission before the learned court, is not correct.
The appellants have all along been in possession.
The building was measured by the corporation time
and again, hearing was held by the corporation, the
promoter and land owner were also heard, the
special officer appointed by the High Court
measured the building with the assistance of the
officials of the corporation and the unauthorized
construction was detected. Thus, the delay of 462
days in filing the special leave to appeal from the
order of His Lordship, which is dated December 17,
2024 is not condoned as we are not satisfied with the
explanation.
10. The occupiers have a remedy before the Civil Court
to claim damages against the promoters or landlord
or they may seek a refund of the amount invested
along with interest, as held in Supertech Limited
v. Emerald Court Owner Resident Welfare
Association, reported in (2021) 10 SCC 1. The
relevant paragraph is quoted below:-
"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
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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.
***
***
175. During the pendency of these proceedings, two interim orders were passed by this Court on 6-9-2016 [Dhirender Sharma v. Emerald Court Owner Resident Welfare Assn., 2016 SCC OnLine SC 1925] and 22-9-2017 [Dhirender Sharma v. Emerald Court Owners Resident Welfare Assn., 2017 SCC OnLine SC 2060] . By the order dated 6-9-2016 [Dhirender Sharma v. Emerald Court Owner Resident Welfare Assn., 2016 SCC OnLine SC 1925] , this Court directed the appellant to pay a return of ten per cent to those flat purchasers who continue to stay in the project. By the order dated 22-9-2017 [Dhirender Sharma v. Emerald Court Owners Resident Welfare Assn., 2017 SCC OnLine SC 2060] , an exit option was granted to those who sought refunds to take the amounts invested with interest at the rate of twelve per cent per annum."
11. The order as it stands today, does not appear to be contrary to law as it is an admitted position that there are unauthorized constructions. The occupiers kept silent over a period of time and did not file a separate writ petition by challenging the demolition process. Thus the occupiers cannot straight away prefer an appeal after more than one and half years 7 from passing of the order impugned. The landlord had been directed to vacate within a month to enable demolition. The order does not reflect existence of any occupier. The litigation is going on from 2022 in respect of the property. In compliance with the direction of a Division Bench on June 21, 2023 passed in MAT 1002 of 2023 with MAT 999 of 2023, the Corporation had undertaken demolition work. Thus, the ignorance of the pending proceedings and the order passed by His Lordship is not an acceptable ground for condonation of the delay.
12. The facts do not warrant such condonation as there are no merits either in the Special Leave to appeal or in the application for condonation.
13. Accordingly, all applications and appeal are dismissed.
14. Parties are to act on the basis of the server copy of this order.
(Shampa Sarkar, J.) (Ajay Kumar Gupta, J.)