Calcutta HC Orders KMC to Restore Flat Owner's Roof Demolished Without Checking Its Own Records
Justice Raja Basu Chowdhury held that the Executive Engineer passed a demolition order recklessly without consulting municipal records, damaging a legally sanctioned flat on the fourth floor.
The High Court at Calcutta has directed the Kolkata Municipal Corporation to restore the demolished roof of a flat owner's legally sanctioned apartment within eight weeks, after finding that the Executive Engineer who passed the demolition order never consulted the corporation's own building permit records before executing the work. Justice Raja Basu Chowdhury, sitting singly in the Constitutional Writ Jurisdiction, disposed of WPA 11266 of 2026 on 14 July 2026, describing the officer's conduct as “utterly shocking” and holding that an authority cannot justify a flawed order through a subsequent affidavit or report.
The Flat Purchase and the Unauthorised Construction Next Door
The petitioner, Tapas Mazumdar, purchased a flat measuring 1,100 sq. ft. super built-up area (880 sq. ft. built-up area) on the fourth floor, Block A, along with a garage in the ground floor of Block D, within premises No. 138A Ananda Palit Road, Police Station Entally, Kolkata. The deed of conveyance is dated 24 March 2022. Following the purchase, his name was mutated in the municipal records and the flat was allotted assessee number 110550206961.
Respondent No. 4, the proprietor of M/s. Star Construction and the constituted attorney of the erstwhile owners of the premises, had disclosed the sanctioned building plan to Mazumdar at the time of sale. After the purchase, respondent no. 4 began raising unauthorised construction over the sanctioned portion of Block A without any fresh municipal sanction. That activity drew the attention of Entally Police Station, which lodged a complaint with the KMC building department on 20 January 2023.
Inspection revealed ongoing work at the fifth storey, with several RCC columns erected at the sixth storey level over what was an existing four-storeyed building. No sanction plan was produced at the site. The department issued a stop-work notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 on 28 January 2023 and simultaneously notified the local police station.
The Demolition Process and the Missed Building Permit
The KMC building department prepared a demolition sketch and infringement statement and placed the file before higher authority for action under Section 400 of the KMC Act, 1980. Hearings were held at the chamber of the Executive Engineer (Civil)/Building/Borough-VI on 4 March 2023 and 7 June 2023 as per Municipal Commissioner Circular 24 of 2021-22, with prior intimation given to all relevant parties. On both dates, the persons responsible were absent.
The Executive Engineer passed the demolition order on 15 June 2023 and served it on the persons responsible. Notices under Section 544 and Section 546 of the KMC Act, 1980 were issued. A demolition programme was finalised for 18 July 2023 but was initially stayed by this Court in WPA 16808 of 2023 (Buddhadev Kundu v. The Kolkata Municipal Corporation & Ors.). A coordinate bench disposed of that writ petition, directing the Executive Engineer to supply a certified copy of the demolition order dated 15 June 2023 to the person aggrieved, while staying further demolition until 30 November 2023 or until a stay was obtained from the statutory appellate forum. No further steps were taken by the affected party in that proceeding.
A fresh demolition programme was fixed on 27 June 2024. On that date, two slab panels of an unoccupied and incomplete flat at the fifth storey were demolished with police assistance from Entally Police Station. It was only after Mazumdar wrote to the department claiming that the demolished portion fell within the legally sanctioned area that the department searched its own records and discovered building permit no. 2009060021 dated 28 August 2009, which had sanctioned a G+4 storeyed residential building. That permit had been valid up to 27 August 2014 and had long expired.
The municipal report placed before the Court stated that during the inspection on 28 January 2023, the persons at the site did not mention any sanction plan, and that at both chamber hearings on 4 March 2023 and 7 June 2023, no one brought the sanctioned plan to the Executive Engineer's notice. The report further noted that the sanction plan had already expired more than eight years before the demolition order was passed.
The KMC's Defence and the Division Bench Precedent Cited
Mr. Alok Kumar Ghosh, appearing for the KMC, argued that Mazumdar had no right to question the demolition order. He relied on the earlier order in Buddhadev Kundu, contending that since no steps had been taken to challenge the demolition order before the statutory appellate forum within the time granted, the corporation was entitled to execute it. He further submitted that because the sanctioned building permit had expired on 27 August 2014 — more than eight years before the demolition — and since the fifth-storey portion was incomplete and under construction, the municipality was within its authority to demolish it even if the portion had originally been within the sanctioned plan.
Mr. Ghosh also placed reliance on an unreported judgment of a Division Bench of the High Court at Calcutta in The Kolkata Municipal Corporation & Ors. v. M/s Adya Residency (P) Limited and M/s Rajveer Infrastructure Reality Pvt. Ltd. & Ors., to the effect that unless a sanctioned building plan is applied for extension before its expiry, the sanction lapses automatically.
Why the Court Rejected the Post-Hoc Justification
Justice Basu Chowdhury was unpersuaded. The Court noted that the petitioner's flat is on the fourth floor and is within the sanctioned G+4 building. It was not in dispute that the sanctioned plan covered a ground-plus-four storeyed structure, making the fourth floor entirely legal. The roof that was demolished belonged to the fourth-floor flat, not to the unauthorised fifth or sixth storey additions.
The Court's central finding was that the Executive Engineer passed the demolition order without consulting the municipal department's own records. The subsequent municipal report, filed in compliance with the Court's order of 11 June 2026, effectively disclosed the officer's failure to do so. The Court held that it is well settled that an order under challenge cannot be supplemented or rescued by way of a subsequent affidavit or report. The reasons that must sustain an order are those that appear in the order itself — and the demolition order made no reference to the lapsed building permit as the basis for action.
The Court observed that the legislature had entrusted the adjudicatory function in demolition proceedings to the Municipal Commissioner, recognising the gravity of such orders, and had permitted delegation only to a specified officer. In this case, that responsibility was exercised by an officer who, in the Court's words, did not bother to consult the records and whose ignorance directly caused the petitioner's loss. The KMC's attempt to justify the demolition on the basis of the expired permit — a ground not taken in the original order — was therefore not accepted.
The Complaint Before WBRERA
During the hearing, Mazumdar placed before the Court a copy of a complaint lodged by him with the West Bengal Real Estate Regulatory Authority against respondent no. 4 regarding the alleged defaults committed in relation to the premises. The Court directed that document to be taken on record. No further direction was issued on the WBRERA complaint, and the Court left that matter to proceed separately.
Order
Justice Raja Basu Chowdhury directed the KMC to forthwith restore the damaged roof of Tapas Mazumdar's fourth-floor flat at 138A Ananda Palit Road, Entally. Completion of the restoration work must be certified by the Executive Engineer. The restoration is to be completed within eight weeks from the date of communication of the order, and the time limit was described as peremptory.
On the question of damages, the Court declined to adjudicate within the writ petition and left that question open, permitting Mazumdar to take appropriate steps before the appropriate forum as he may be advised. The writ petition was disposed of accordingly.