21.05.2025 Sl. No. 04 Ct No. 3 SG WPA 1368 of 2025 M/s Venkatesh Construction Company Private Limited Vs The Kolkata Municipal Corporation & Ors.

` Mr. Srijib Chakraborty, Mr. Sumitava Chakraborty, Ms. Rupsa Sreemani.

…for the petitioner Mr. Alak Kr. Ghosh, Mr. Swapan Kr. Debnath.

…for KMC Mr. Debjit Mukherjee, Mr. Susmita Chatterjee.

…for state

1. The petitioner has preferred the present writ petition seeking quashing of proceeding initiated by the Respondent Corporation under Section 400(8) of KMC Act in respect of illegal and unauthorized construction being carried out at premises no. 240-B, AJC Bose Road, Borough-VIII, P.S.- Bhowanipur, Kolkata.

2. It is the case of the Petitioner that the entire construction on the aforementioned premises was executed in accordance with Building Plan Sanction No. 164, dated 26.06.1973. The building, now over 50 years old, was undergoing repair and renovation when the Petitioner received a work stop notice dated 20.09.2024 under Section 401 of the Kolkata Municipal Corporation Act, 1980. Subsequently, the Petitioner was served with another notice under Section 400(1) of the same Act, alleging unauthorized construction in another part of the building. A separate hearing is ongoing concerning this notice.

3. The Petitioner submitted a reply dated 12.12.2024, emphasizing that the building is over 50 years old and that no new construction was taking place, only repairs and renovations. However, on 15.01.2025, officers from the Respondent Corporation initiated demolition actions. Upon inquiry, it was revealed that the demolition was pursuant to an order dated 13.12.2024, issued under Section 400(8) of the Kolkata Municipal Corporation Act, 1980.

4. The Petitioner approached this Court in the present proceedings challenging the said demolition action initiated under Section 400(8) of the KMC Act. This Court vide order dated 16.01.2025, stayed further demolition actions and directed the Respondent Corporation to file an affidavit justifying the initiation of action under Section 400(8) of the KMC Act.

5. In compliance, the Respondent submitted a report indicating that the original building plan qua the said premise was sanctioned on 26.06.1973 under the Calcutta Municipal Act, 1951, permitted construction up to Ground + Mezzanine + V floors.

However, the Petitioner constructed up to Ground + Mezzanine + IV floors. The said building plan lapsed by efflux of time. With the enactment of the Kolkata Municipal Corporation Act, 1980, effective from 04.01.1984, new building rules were established. Under these rules, there is no provision for construction above Ground + Mezzanine + IV floors.

6. The Respondent alleges that the Petitioner was constructing an additional floor above the existing roof, despite being issued a work stop notice. The construction included a 3-foot brick wall on all sides of the existing roof, upon which a steel-framed structure was erected, followed by the installation of glass panels. The Respondent contends that this new construction posed a danger to the public at large.

7. Consequently, the Mayor-in-Council, after considering all aspects, deemed the structure unsafe and likely to cause accidents resulting in loss of life and property. Therefore, the Respondent invoked the emergency provision under Section 400(8) of the Kolkata Municipal Corporation Act, 1980, to demolish the structure constructed above the roof of the said building.

8. The petitioner asserts that the tin shed erected on the sixth-floor roof is neither illegal nor unauthorized. They argue that the demolition order under Section 400(8) of the Kolkata Municipal Corporation (KMC) Act, 1980, is invalid, as initial proceedings commenced under Section 400(1), which mandates a hearing. The shift to the emergency provision under Section 400(8) denied the petitioner a fair hearing, violating principles of natural justice. The petitioner contends that the corporation's report lacks justification for invoking the emergency provis