KMC cannot shut restaurant under residential-use rules without showing the premises violates them, Calcutta High Court rules

The petitioners operated a restaurant at 11A, Dover Lane, Kolkata, and held a renewed Certificate of Enlistment valid until 31 March 2027.

After issuing show-cause notices alleging that the certificate had been granted contrary to Section 435A of the Kolkata Municipal Corporation Act, 1980 (“the Act”) and the applicable guidelines, the Kolkata Municipal Corporation (“KMC”) ordered the petitioners to close the business on 25 September 2026.

The petitioners had not replied to the earlier notices, although they submitted a representation on 30 September 2026.

A joint inspection report, disclosed during the hearing and not previously served on the petitioners, recorded several food-safety and premises-related observations.

The petitioners challenged the closure order by writ petition.

Whether the petitioners’ restaurant business could be closed under Section 435A of the Act, notwithstanding the Certificate of Enlistment and the permissions identified by the respondents.

Whether the impugned order was sustainable when it was made by an Assistant License Officer, with no material showing delegated authority from the Municipal Commissioner, and without a show-cause notice under Section 421.

Section 435 of the Act bars non-residential use of a residential premises without municipal permission, while Schedule V identifies uses, including an eating house or catering establishment, that may be permitted in such premises.

Section 421 requires the Municipal Commissioner’s specific permission to carry on an eating-house business, subject to Section 425.

Section 435A, inserted by the 2014 amendment, regulates trade and commercial activity in residential buildings alongside major roads; the Court found that it did not itself prohibit a business already permitted under Sections 421 or 435, nor did it override those provisions.

Clause 7 of the UD & MA Guidelines limits relevant activities to buildings alongside major roads and caps their use at 45% of the building’s total floor area; Clause 12 provides for inspection and cancellation of a Certificate of Enlistment in specified circumstances.

The Act also provides for registration and classification of public streets under Sections 343(5) and 346, but the Court noted that the Act and rules before it did not define “major road”.

The Court noted that the petitioners held a Certificate of Enlistment and that the respondents did not contend that the petitioners lacked the permissions required to operate an eating house.

It inferred from the certificate and inspection material that the petitioners had the relevant permissions under Sections 421 and 435, and held that Section 435A could not negate them.

The impugned order did not establish that the premises were on a road outside the relevant category or that the business was hazardous; nor had the municipality identified which roads qualified as “major roads” or shown that the street concerned was not one.

Separately, the Court found no evidence that the Assistant License Officer had been delegated the Municipal Commissioner’s authority, and no show-cause notice had been issued under Section 421.

In those circumstances, the order was an unsustainable exercise of authority.

The writ petition was disposed of, with all consequential effects to follow.