Calcutta High Court (Appellete Side)
Rukhsana Hamid vs State Of West Bengal & Ors on 13 August, 2025
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
RESERVED ON: 04.08.2025
DELIVERED ON: 13.08.2025
PRESENT:
THE HON'BLE MR. JUSTICE GAURANG KANTH
WPA 18238 OF 2024
RUKHSANA HAMID
VERSUS
STATE OF WEST BENGAL & ORS.
Appearance:-
Mr. Arup Krishna Das, Adv.
Mr. Rajarshi Ghosh, Adv.
...........................For the Petitioner
Mr. Dipanjan Datta, Adv.
Mr. Debangshu Mondal, Adv.
........................... For the State
Mr. Shounak Bhattacharya, Adv.
............................... For the Corporation
Mr. S.K. Mondal, Adv.
................... For the Private Respondent
WITH
WPA 20449 OF 2024
RUKHSANA ZAKARIA KHAN
VERSUS
THE STATE OF WEST BENGAL & ORS.
Mr. Srijib Chakraborty, Adv.
Mr. Subhajit Mukherjee, Adv.
..............................For the Petitioner
Mr. Malay Singh, Adv.
Ms. Neelam Singh, Adv.
.................................... For the State
Mr. Shounak Bhattacharya, Adv.
......................... For the Corporation
Mr. S.K. Mondal, Adv.
............ For the Private Respondent
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JUDGMENT
Gaurang Kanth, J. :-
1. The demolition order dated 04.03.2024 having Memo No.
3049/(12)/PW/Eng/24 passed by the Superintending Engineer, Asanasol
Municipal Corporation in connection with demolition of a certain portion of
the Nuruddin House having JL No. 20, Mouza Asanasol Municipality is in
consideration in both these matters. In WPA 20449/2024, the Petitioner is
challenging the said demolition order where as in 18238/2024, the
Petitioner is seeking the implementation of the said demolition order.
Hence this Court decided to dispose of both these matters with a common
order.
Facts as per WPS 18238/2024
2. The Petitioner claims to be one of the co-sharers of the premises in
question. Her case is that one Nuruddin Mistry was the original owner of
certain plots of land situated under Mouza- Asansol Municipality, JL No.
20, recorded in Khatian Nos. 8860, 8861, 8862, 13588, 13589, 10793,
10794, 10795, 10796, 10797, 10798, 8866, 8867, 8869, 8870, 8871,
8873-8877, 22250, 22242, 22256, 22255, 22251, 22241, 22243, 22252,
and 22254. The Petitioner is one of the successors-in-interest of the late
Shri Nuruddin Mistry. Nuruddin House is constructed over the said
property. After the death of Nuruddin Mistry, a partition suit, being Title
Suit No. 92 of 2023, was instituted and is presently pending before the
Court of the Civil Judge, Senior Division, Asansol, among the legal heirs of
the said late Nuruddin Mistry.
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3. The Petitioner in WPA No. 18238 of 2024 (Rukhsana Hamid), contends that
private respondents Nos. 6 and 7, namely Abdulla Zakaria and Sulaiman
Zakaria, commenced unauthorised construction over a portion of the
aforesaid property without obtaining any valid sanctioned building plan.
Accordingly, she lodged a complaint dated 29.12.2023 before the Mayor,
Asansol Municipal Corporation. Pursuant to the said complaint, officials of
the Respondent Municipality carried out a spot inspection and issued a
“work stop” notice dated 09.01.2024 against the said private respondents.
4. Despite the issuance of the said notice, Abdulla Zakaria and Sulaiman
Zakaria continued with the unauthorised construction. Consequently, the
Petitioner lodged another complaint dated 12.02.2024. The Assistant
Engineer, Asansol Municipal Corporation, by letter dated 17.02.2024,
informed the Deputy Commissioner of Police (Central), Asansol-Durgapur
Police Commissionerate, to take appropriate action against the said private
respondents.
5. A hearing was thereafter conducted by the Respondent Municipality on
20.02.2024, which was attended by both the Petitioner and the private
respondents. As no sanctioned building plan was produced by the private
respondents, the Respondent Municipality passed a demolition order dated
04.03.2024, directing the said private respondents to demolish the
unauthorised construction within seven days, failing of which the
demolition would be carried out by the Municipality itself.
6. Notwithstanding the passing of the demolition order dated 04.03.2024, no
demolition was carried out, either by the private respondents or by the
Respondent Municipality. The Petitioner thereafter submitted a
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representation dated 29.05.2025, requesting implementation of the said
demolition order.
7. Aggrieved by the continued inaction of the Respondent Municipality in
enforcing the demolition order dated 04.03.2024, the Petitioner has
preferred the present writ petition.
Facts as per WPA No. 20449/2024
8. The Petitioner is the recorded owner of the premises wherein the property
known as Nuruddin House is situated, her name being duly reflected in the
Record of Rights. On 24.07.2024, she was informed by officials of the
Respondent Municipality that a demolition order had been passed in
respect of a portion of Nuruddin House. Upon request, she was furnished
with a copy of the demolition order dated 04.03.2024, from which she
learnt that her sons, Abdulla Zakaria and Sulaiman Zakaria, had allegedly
carried out illegal and unauthorised construction in the said premises, and
that the order pertained to such alleged unauthorised construction.
9. The Petitioner states that the building in question originally belonged to the
great grandfather of her husband. She was married in the year 1975 and
has resided in the premises since then. According to her, Nuruddin House
is approximately 100 years old, and certain portions had, over time, fallen
into a dilapidated and ruinous condition, making them uninhabitable. She
asserts that only limited renovation work was undertaken to render those
portions habitable.
10. After the death of her husband in 2021, the Petitioner’s relationship with
her sons deteriorated, and she began to reside separately from them. She
avers that due to natural calamities, the portion of the building where she
currently lives has also become dilapidated, and she has carried out only
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such renovation work as is permissible in law. The Petitioner contends
that, despite being the recorded owner of the premises, she was neither
afforded an opportunity of hearing nor served with any notice prior to the
passing of the demolition order. She further points out that the order does
not specify which portion of the building is alleged to be unauthorised.
11. Upon receiving the order, she addressed a letter dated 25.07.2024 to the
Respondent-Municipality seeking clarification and redress, but no action
was taken. Aggrieved by such inaction, the Petitioner has filed the present
writ petition.
Submission on behalf of the Petitioner in 20449/2024 (Rukhsana Zakaria
Khan)
12. Learned Counsel for the Petitioner submits that the Petitioner is the
recorded owner of the premises known as Nuruddin House, her name being
duly reflected in the Record of Rights. Despite this, the impugned
demolition order dated 04.03.2024 has been passed without serving any
notice upon her, without summoning her for spot inspection, without
issuing any “stop work” notice, and without affording her any opportunity
of hearing. It is contended that such omission strikes at the very root of
the proceedings and amounts to a clear violation of the principles of
natural justice, rendering the impugned order liable to be set aside on this
ground alone.
13. It is further submitted that the impugned demolition order has been issued
by the Superintending Engineer, Asansol Municipal Corporation. Section
266 of the West Bengal Municipal Corporation Act, 2006, expressly vests
the power to pass a demolition order in the Commissioner, and there is no
provision under the Act which permits delegation of such power to a
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subordinate officer. The Petitioner therefore contends that the impugned
order has been passed wholly without jurisdiction and is void ab initio.
14. The Petitioner further argues that the impugned order suffers from
vagueness and ambiguity inasmuch as it does not specify the exact portion
of the premises alleged to be unauthorised. Nuruddin House is a large,
approximately 100 year-old building, and without a sketch map, site plan,
or any form of identification annexed to the order, the alleged illegal
construction cannot be precisely ascertained. In the absence of such
clarity, the order is incapable of lawful execution and stands vitiated in
law.
15. Learned Counsel also points out that the Petitioner has been residing
separately from her sons, Abdulla Zakaria and Sulaiman Zakaria, due to
their hostile behaviour and has no connection with any unauthorised
construction allegedly carried out by them. The portion of the premises
under her occupation had fallen into a dilapidated condition due to
natural calamities, and she undertook only lawful renovation work to
make it habitable. The demolition order, insofar as it affects her portion,
has therefore been passed on an erroneous assumption of fact and without
affording her an opportunity to contest the allegations.
16. In support of his submissions, learned counsel for the Petitioner places
reliance upon the following decisions:
(i) Gurunath Manohar Pavaskar v. Nagesh Siddappa
Navalgund, AIR 2008 SC 901;
(ii) Chief General Manager (IPC), Madhya Pradesh Power
Trading Company Ltd. v. Narmada Equipments Pvt. Ltd.,
(2021) 14 SCC 548;
(iii) J.K. Cotton Spinning and Weaving Company Ltd. v. State
of U.P., AIR 1961 SC 1170;
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(iv) Dharani Sugars and Chemicals Ltd. v. Union of India,
(2019) 5 SCC 480;
(v) Laddu Gopal Bajoria v. Kolkata Municipal Corporation,
2006 (3) CAL LT 50 (HC);
(vi) Dinanath Singh v. State of West Bengal, WPA 12318/2025;
(vii) Maniruddi Bepari v. Chairman of the Municipal
Commissioners, reported as ILR (1936) 63 Cal 295; and
(viii) State of Odisha v. Satish Kumar Ishwardas Gajbhiye,
(2021) 17 SCC 90.
17. In light of these submissions, it is argued that the impugned demolition
order dated 04.03.2024 is illegal, arbitrary, without jurisdiction, violative
of the principles of natural justice, and vitiated by vagueness. The same is
therefore liable to be quashed and set aside by this Court.
Submission on behalf of the Petitioner in WPA 18238/2024 (Rukhsana
Hamid)
18. Learned Counsel for the Petitioner in WPA 18238/2024 submits that the
private respondents (Abdulla Zakaria and Sulaiman Zakaria) carried out
unauthorised and illegal construction in contravention of the West Bengal
Municipal Corporation Act, 2006. For the said construction work, no
building plan has been sanctioned by the Asanasol Municipal Corporation.
The Respondent Corporation has already passed the demolition order
dated 04.03.2024, however, till date is no action has been taken in
pursuance of the same.
19. Learned Counsel further submits that as per Section 266 of the West
Bengal Municipal Corporation of the Act, 2006, the commissioner is
empowered to delegate his power to his subordinate officers. Hence validly
passed the demolition order dated 04.03.2024.
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20. Further as per the said Act, the notice is to be given to the ‘person at whose
instance’ the unauthorised construction is being carried out. Abdulla
Zakaria and Sulaiman Zakaria are the persons who have carried out the
said demolition work and hence the Respondent Corporation passed the
demolition order after affording an opportunity of hearing to the said
persons.
21. In view thereof, Learned Counsel for the Petitioner prays for the
implementation of the impugned demolition order dated 04.03.2024.
Submission on behalf of the Respondent Corporation
22. It is submitted by the Learned Counsel for the Respondent Corporation
that the Petitioner in WPA 18238/2024, namely, Rukhsana Hamid, lodged
a written complaint dated 29.12.2023 alleging that Abdulla Zakaria and
Sulaiman Zakaria were carrying out unauthorised construction at the
premises in question. Pursuant to the said complaint, the Respondent
Corporation issued a stop-work notice dated 09.01.2024 directing the said
persons to forthwith cease all construction activities. However, despite
service of the said notice, the unauthorised construction continued
unabated. Consequently, by letter dated 17.02.2024, the Respondent
Corporation requested the Deputy Commissioner of Police (Central),
Asansol Durgapur Police Commissionerate, to enforce the said stop-work
notice. Thereafter, a hearing was conducted by the Superintendent
Engineer, Asansol Municipal Corporation, wherein both the complainant
and the persons responsible for the unauthorised construction were
present. Upon their failure to produce any sanctioned building plan, the
impugned demolition order dated 04.03.2024 was passed, directing the
removal of the unauthorised construction.
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23. The Respondent Corporation has placed on record the delegation of powers
issued by the Commissioner, Asansol Municipal Corporation, vide Memo
No. 707-G dated 09.02.2024, in exercise of powers conferred under Section
47(3)(b) of the West Bengal Municipal Corporation Act, 2006.
24. The Respondent Corporation further submits that no notice was required to
be issued to Rukhsana Zakaria Khan, Petitioner in WPA 20449/2024,
inasmuch as she is neither the owner of the premises in question nor the
person responsible for the unauthorised construction. The mere recording
of her name in the L.R. record-of-rights neither creates nor extinguishes
title, as is well-settled in law. Accordingly, her claim to notice is without
legal foundation.
25. It is further the specific case of the Respondent Corporation that WPA
20449/2024 is a proxy litigation instituted at the behest of Abdulla
Zakaria and Sulaiman Zakaria, in collusion with their mother, Rukhsana
Zakaria Khan, with the sole intent of frustrating and obstructing the lawful
demolition proceedings initiated by the Corporation.
26. In view of the aforesaid facts, submissions, and the record placed before
this Hon’ble Court, the Respondent Corporation respectfully prays that
WPA 20449/2024 be dismissed with costs.
Legal Analysis
27. This Court has heard the arguments advanced by the learned counsel for
both parties and has carefully perused the documents placed on record.
28. The principal contention advanced on behalf of Rukhsana Zakaria Khan,
(Petitioner in WPA 20449/2024), is that the Superintendent Engineer,
Asansol Municipal Corporation, was not competent to pass the impugned
demolition order dated 04.03.2024. It is submitted that, in terms of
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Section 266 of the West Bengal Municipal Corporation Act, 2006, the
power to pass a demolition order is vested exclusively upon the
Commissioner. The Petitioner further submits that, under the provisos to
Section 266, the Commissioner may delegate only certain powers, namely,
under the first proviso, the power to issue notices and conduct hearings,
and under the second proviso, the power to issue stop-work orders, to
subordinate officers. However, the authority to pass a demolition order
itself cannot be delegated, as such delegation is not contemplated by
29. The learned counsel for the Respondent Corporation, however, strongly
disputes this interpretation and relies upon Section 47 of the West Bengal
Municipal Corporation Act, 2006, to contend that the Commissioner is
empowered to delegate even the power to pass demolition orders to
subordinate officers.
30. In order to properly evaluate the rival submissions, it is necessary to
examine the scope and interplay of Section 266 and Section 47 of the West
Bengal Municipal Corporation Act, 2006.
Section 266(1) of the West Bengal Municipal Corporation Act, 2006
“266. Order of demolition of building or stoppage of erection of
buildings in certain cases and appeal.
(1) Where the erection of any building or the execution of any work has
been commenced, or is being carried on, or has been completed
without or contrary to the sanction referred to in section 263 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 demolished’ by the
person at whose instance the erection or the work has been
commenced or is being carried on or has been completed within such
period, not being less than five days and more than fifteen days from
the date on which a copy of the order of demolition with a brief
statement of the reasons therefor has been delivered to such person,
as may be specified in the order:
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Provided that no order of demolition shall be made unless such
person has been given, by means of a notice served in such manner as
the Commissioner may think fit, a reasonable opportunity of showing
cause why such order shall not be made:
Provided further that where the erection or the execution has not
been completed, the Commissioner may by the same order or by a
separate order, whether made at the time of the issue of the notice
under the first proviso or at any other time, direct such person to stop
the erection or the execution until the expiry of the period within which
an appeal against the order of demolition if made may be preferred
under sub-section (3).
Explanation. – In this chapter, “the person at whose instance”
shall mean the owner, occupier or any other person who causes the
creation of any building or execution of any work to be done, including
alterations or additions if any, or does it by himself.
Provided also that the Commissioner, 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 from the
Municipal Fund.”
Section 47 of the West Bengal Municipal Corporation Act, 2006
“Delegation of powers and functions.
(1) The Board of Councillors may, by resolution, delegate, subject to such
conditions as may be specified in the resolution, any of its powers or
functions to the Mayor-in-Council.
(2) The Mayor-in-Council may, by order, delegate, subject to such
conditions as may be specified in the order, any of its powers or
functions to the Mayor or to the Commissioner.
(3) Subject to such standing orders as may be made by the Mayor-in-
Council in this behalf,-
(a) the Mayor may, by order, delegate, subject to such conditions
as may be specified in the order, any of his powers or
functions to the Deputy Mayor or to the Commissioner.
(b) the Commissioner may, by order, delegate, subject to such
conditions as may be specified in the order, any of his powers
or functions to any other officer or any employee of the
Corporation; and
(c) any officer of the Corporation either than the Commissioner
may. by order, delegate, subject to such conditions as may be
specified in the order, any of his powers or functions to any
officer subordinate to him.
(4) Notwithstanding anything contained in the foregoing provisions of this
section, the Mayor-in-Council, the Mayor, the Commissioner, or the
officer referred to in clause (c) of sub-section (3) shall not delegate-
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(a) any of its or his powers or functions delegated to it or him
under this section, or
(b) such of its or his powers or functions as may be prescribed.”
31. A plain reading of Section 266 of the West Bengal Municipal Corporation
Act, 2006 indicates that the power to pass demolition orders in cases of
unauthorised construction is vested in the Commissioner. While the
provisos to Section 266 make specific reference to the delegation of certain
ancillary functions, such as issuing notices, conducting hearings, and
stopping work, the section does not contain any express prohibition
against the delegation of the power to issue demolition orders itself. The
absence of such a prohibition must be read in harmony with the general
delegation powers conferred under Section 47 of the said Act.
32. Section 47(3)(b) expressly empowers the Commissioner to delegate any of
his powers or functions under the Act to subordinate officers, subject to
such conditions as may be specified. This provision is couched in broad
terms and applies to all powers of the Commissioner, save and except
those for which the statute contains an express prohibition. Since Section
266 does not expressly restrict the delegation of demolition powers, the
enabling provision of Section 47(3)(b) must be given full effect.
33. A harmonious construction of Sections 266 and 47 reveals that while
Section 266 identifies the Commissioner as the primary authority
competent to issue demolition orders, Section 47 prescribes the procedural
mechanism by which such powers may be delegated to suitably empower
subordinate officers. The legislative intent underlying these provisions is to
ensure administrative efficiency and expeditious action against
unauthorised constructions, an objective that would be undermined if
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every demolition order were required to be personally passed by the
Commissioner.
34. Furthermore, the first proviso to Section 266 vests the Commissioner with
the authority to conduct hearings in relation to demolition matters. If the
Petitioner’s argument were to be accepted, it would result in an
incongruous situation where the hearing is conducted by a subordinate
officer, yet the final demolition order is passed exclusively by the
Commissioner. Such a bifurcation of process is anomalous and contrary to
established principles of law.
35. It is a well settled principle of statutory interpretation that where two
provisions are capable of being read harmoniously, the interpretation that
gives full effect to both must be adopted. In the present context, Section
266 determines the source of the power, while Section 47 lays down the
mode of its lawful delegation. Accordingly, a demolition order passed by
the Superintendent Engineer pursuant to a valid written delegation from
the Commissioner under Section 47(3)(b), such as Memo No. 707-G dated
09.02.2024, is intra vires, lawful, and enforceable.
36. Learned Counsel for the Petitioner has placed reliance upon various
judgments referred to in paragraph 16 hereinabove. This Court, while
holding the legal principles enunciated therein in the highest regard and
being in respectful agreement with the propositions so laid down, it is of
the considered view that the present controversy hinges upon a core issue
which is materially distinct from the questions that fell for determination
in those cases. Consequently, the ratio of the cited decisions, though
instructive, cannot be applied in its entirety to the facts at hand.
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37. The contention of the Petitioner that the power to issue demolition orders is
non-delegable is misconceived and contrary to settled legal principles. The
Supreme Court has consistently recognised that, unless expressly
prohibited, statutory powers including quasi-judicial powers may be
delegated to subordinate authorities where the enabling statute so
provides. In Gurunath Manohar Pavaskar (supra), the Hon’ble Court held
that delegation is permissible where the statute contains a general
provision authorising such delegation, provided that statutory safeguards
are preserved. Similarly, in State of Orissa v. Commissioner of Land
Records & Settlement, (1998) 7 SCC 162, it was held that when the
legislature confers a general power of delegation, it must be construed
broadly to encompass all powers unless expressly excluded.
38. In the municipal governance context, in Laddu Gopal Bajoria (Supra) this
Court, upheld the competence of subordinate municipal officers to act
pursuant to powers delegated by the Commissioner, provided the
delegation complies with the statute. The delegation effected through
Memo No. 707-G dated 09.02.2024 is a direct exercise of the
Commissioner’s powers under Section 47(3)(b) of the West Bengal
Municipal Corporation Act, 2006. In the absence of any express bar in
Section 266 against the delegation of demolition powers, the principle of
harmonious construction must prevail.
39. Consequently, the Superintendent Engineer, having acted under a valid
and duly notified delegation of authority, was fully competent to issue the
impugned demolition order dated 04.03.2024. The order cannot be
invalidated merely because it was not personally signed by the
Commissioner.
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40. The second limb of the Petitioner’s argument in WPA 20449/2024 is that
she was not granted an opportunity of hearing prior to the issuance of the
impugned demolition order, which, according to her, constitutes a violation
of the principles of natural justice. The Respondent Corporation has
refuted this contention by asserting that the statutory requirement of
hearing was duly complied with, as the opportunity of hearing was
afforded to those directly responsible for the unauthorised construction,
namely, Abdullah Zakaria and Sulaiman Zakaria, the sons of the
Petitioner.
41. As per Explanation to Section 266, ‘the person at whose instance” shall
mean the owner, occupier or any other person who causes the creation of
any building or execution of any work to be done. Hence before issuing a
demolition order, the Commissioner must give a “reasonable opportunity of
being heard” only to the owner, occupier, or person responsible for the
unauthorised construction. The provision does not require the Corporation
to extend such an opportunity to every person with a tangential or indirect
interest in the property.
42. It is undisputed that “Nuruddin House” is an old structure, and the
complaint lodged by Rukhsana Hamid pertained solely to unauthorised
construction carried out by Abdullah Zakaria and Sulaiman Zakaria. The
demolition order concerns only this unauthorised portion and not the
original building. The Petitioner herself has consistently stated that she
resides separately from her sons and was unaware of the said
construction. Her only stated concern is that she should not be rendered
homeless as a result of the demolition.
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43. It is also significant to note that Abdullah Zakaria and Sulaiman Zakaria,
who admittedly undertook the unauthorised construction, never
challenged the demolition order dated 04.03.2024. They participated in the
hearing conducted by the Respondent Municipal Corporation but failed to
produce any sanctioned building plan in respect of the disputed
construction. It is not even their case that they did not make the
unauthorised construction.
44. In these circumstances, the Petitioner, being merely the mother of the
persons responsible and having disclaimed any connection with the
unauthorised works, cannot claim to be aggrieved by the demolition order.
Since the action of the Respondent Corporation is confined to the
demolition of the offending structure raised by her sons, and the original
Nuruddin House remains unaffected, there is no infringement of her legal
rights, and the plea of violation of natural justice is without merit.
45. In view of the detailed discussion hereinabove, this Court finds no illegality,
irregularity, or infirmity in the impugned demolition order dated
04.03.2024. The factual matrix clearly establishes that Abdullah Zakaria
and Sulaiman Zakaria undertook unauthorised construction on the said
premises without obtaining any sanctioned building plan, in blatant
contravention of the provisions of the West Bengal Municipal Corporation
Act, 2006. The Respondent Municipal Corporation, upon due compliance
with the statutory mandate of affording an opportunity of hearing to the
persons responsible, has rightly directed demolition of the said
unauthorised structure.
46. The record reveals that the unauthorised construction is entirely
attributable to the said two individuals, who neither denied their role in its
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execution nor produced any lawful sanction in support thereof. The
Petitioner, who claims to reside separately and disassociates herself from
the acts of her sons, has failed to demonstrate any infringement of her own
legal rights that could warrant judicial interference.
47. Consequently, WPA 20449/2024 is dismissed, as there are no sustainable
grounds for challenge.
48. WPA 18238/2024 is allowed. The Respondent Municipal Corporation is
directed to proceed forthwith with the demolition of the unauthorised
structure raised by Abdullah Zakaria and Sulaiman Zakaria, strictly in
accordance with law, and to ensure that the action is confined only to the
offending portion without disturbing the original old structure.
49. Urgent Photostat certified copy of this judgment, if applied for, be supplied
to the parties, expeditiously after complying with all necessary legal
formalities.
(Gaurang Kanth, J.)
SAKIL AMED (P.A)