FARUK KHAN vs KOLKATA MUNICIPAL CORPORATION AND ORS.

13
19.05.2026
sb
Ct.3.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE

WPA 11488 of 2026

Faruk Khan
Versus
Kolkata Municipal Corporation & Ors.


Mr. Sudip Deb, Sr. Advocate
Mr. Subhrangsu Panda
Mr. Anupam Singha
… For the petitioner.

Mr. Nilotpal Chatterjee
Ms. Tanushree Dasgupta

… For Kolkata Municipal Corporation


1. Mr. Deb, learned senior advocate representing the
petitioner at the very outset would submit that though the
petitioner has caused service of the writ petition on all the
respondents and though an affidavit of service to that effect
has been prepared, the same is yet to be affirmed.
Accordingly, he seeks leave to file the same in course of the
day.
2. Considering the submissions and noting from the
affidavit so disclosed that service has been effected on the
respondents, leave is granted to the petitioner to file the
same in course of the day.
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3. Challenging the notice dated 13 May, 2026 issued
under Section 544 and 546 of the Kolkata Municipal
Corporation Act, 1980 (herein after referred to as the “said
Act”), the instant writ petition has been filed.
4. The petitioner is aggrieved by the steps taken by the
municipal authorities to implement the demolition order
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dated 5 May, 2026 within the statutory period provided for

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WPA 11488 of 2026


preferring the appeal therefrom as provided under Section
400(3) of the said Act.
5. Mr. Deb, learned senior advocate appears in support
of the writ petition and would submit that although the
statute recognizes the right of the petitioner to prefer an
appeal from the aforesaid order within the statutory period
provided therefor, and though the petitioner has preferred
an appeal, however, before the expiry of the ordinary period
for preferring the appeal the municipal authorities are bent
upon to execute the said order. According to him, if the
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order dated 5 May, 2026 is permitted to be implemented on
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the strength of the notice dated 13 May, 2026, before
expiry of the statutory period for preferring the appeal, the
appeal filed by the petitioner shall become infructuous. In
support of his contention, he has placed reliance on an
unreported judgment delivered by the Hon’ble Division
Bench of this Court in the case of Md. Yaqub@Md. Yaqub
Ansari v. Abdul Kayum & Ors. in MAT 1152 of 2023 with
nd
CAN 1 of 2023 dated 22 August, 2023.
6. Mr. Chatterjee, learned advocate appears for the
municipality. He would submit that the petitioner in the
instant case has already preferred an appeal. Once, the
petitioner has preferred an appeal, it is for the petitioner to
take appropriate steps. The petitioner cannot be permitted
to choose forums and having filed an appeal cannot
approach this Court in exercise of extra-ordinary writ
jurisdiction.
7. Having heard the learned advocates appearing for
the respective parties, I find that admittedly in this case the

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WPA 11488 of 2026


order of demolition was passed under the provisions of
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Section 400(1) of the said Act on 5 May, 2026. Although, in
terms of Section 400(3) of the said Act, the petitioner was
competent to challenge the said order and has been
conferred with a statutory right to prefer an appeal from the
said order before the appropriate Tribunal, the municipality
appears to have proceeded in hot haste even before the time
to prefer the appeal expired. The notice issued under Section
544 and 546 of the said Act appearing at page 53 of the writ
petition demonstrates that the municipal authorities would
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proceed on 19 May, 2026 i.e. today at 11.30 hrs. for the
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purpose of executing the order dated 5 May, 2026 issued
under Section 400(1) of the said Act. The said notice which
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is dated 13 May, 2026 has been issued prior to the expiry
of the statutory period for the petitioner to prefer an appeal
therefrom. In this context, I may note that Section 400(4)
empowers the Municipal Building Tribunal to stay the
enforcement of such order on such terms, if any, and for
such period as it may think fit. Ordinarily, therefore, when
the statute confers a right to the petitioner to prefer an
appeal from the order of demolition, and pray for stay of the
order of demolition, having regard to the provisions
contained in sub-sections (3) and (4) of Section 400 of the
said Act, in my view, the municipality ought not to have
proceeded within such statutory period, to render the appeal
infructuous. In the given facts, when there has been glaring
statutory infraction, the self-imposed restriction in
exercising jurisdiction on the ground of alternative remedy

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WPA 11488 of 2026


cannot stand in the way of this Court to exercise
discretionary jurisdiction.
8. Having regard thereto, and noting the observation
made by the Hon’ble Division Bench in the case of Md.
Yaqub @ Md. Yaqub Ansari (supra), this Court is of the
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view that the aforesaid notice dated 13 May, 2026 issued
by the Municipality cannot be sustained and the same is
quashed. However, at the same time having regard to the
disclosure made by the petitioner that the petitioner has
already preferred an appeal from the aforesaid order and the
matter is pending consideration before the Building Tribunal
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and the next date is fixed on 24 June, 2026, it is only
expected that if the petitioner makes an appropriate
application before the Building Tribunal, in accordance with
law for expeditious disposal of its stay application in
connection with the appeal having regard to the scope of
Section 400(4) of the said Act, the same shall be considered
expeditiously on its own merit.
9. This Court makes it abundantly clear that this
Court has not considered the prima facie case of the
petitioner insofar as right to obtain stay of the demolition
proceeding is concerned.
10. With the above observations and directions, the writ
petition is disposed of.
Urgent photostat certified copy of this order, if
applied for be given to the parties upon compliance with the
requisite formalities.
(Raja Basu Chowdhury, J.)