Calcutta High Court
Rowina Nandini Mehrotra & Ors vs Smt. Mala Roy & Ors on 21 July, 2025
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Special Civil Jurisdiction
Contempt
Original Side
Present :- Hon'ble Justice Amrita Sinha
CC 42 of 2025
(Arising out of WPO 1575 of 2023)
Rowina Nandini Mehrotra & Ors.
Vs.
Smt. Mala Roy & Ors.
For the writ petitioners :- Mr. Utpal Bose, Sr. Adv.
Mr. Ankan Rai, Adv.
Mr. Ratnesh Kumar Rai, Adv.
Ms. Devanshi Deora, Adv.
Mr. Aakash Mishra, Adv.
Ms. Nabanita Manna, Adv.
For the KMC :- Mr. Alak Kr. Ghosh, Adv.
Mr. Nilanjan Chatterjee, Adv.
For the contemnor no. 6 :- Mr. Deepan Sarkar, Adv.
Mr. Samriddha Sen, Adv.
Ms. Mobina Ali, Adv.
Heard on :- 10.07.2025
Judgment on :- 21.07.2025
Amrita Sinha, J.:-
1. The petitioner alleges violation of the order dated 14th September,
2023 passed by the Court directing the concerned Executive Engineer
of the Kolkata Municipal Corporation to take prompt necessary steps
to deal with the unauthorised constructions that have been detected
at the subject premises, after giving a reasonable opportunity of
hearing to all the necessary parties at the earliest, but positively
within a period of twelve weeks from the date of communication of the
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order. A reasoned order was to be passed and communicated to all the
parties.
2. The said order was passed relying upon a report filed by the engineers
of the Corporation disclosing that the Corporation sanctioned a
residential building plan for construction of G+4 storied building in
the year 2007. The same was modified/regularised twice on 5th May,
2010 and 17th September, 2011. Completion plan and completion
certificate was issued on 20th September, 2011.
3. Ground floor of the subject structure was sanctioned as car parking
space. First floor was sanctioned as show room and second to the
fourth floors were sanctioned as residential flats. A portion of the
ground floor was sanctioned as 'entrance lobby for show room' without
any walls.
4. On inspection by the department, it was found that the second and
third floors were being used as office changing from the original
sanctioned plan. The entrance lobby for show room was covered by
brick walls and the show rooms were running for the last few years.
Constructional activities like re-plastering and re-flooring etc. was
found to be ongoing.
5. The Corporation issued notice under Section 401 of the Kolkata
Municipal Corporation Act, 1980 ('KMC Act' for short) with intimation
to the Ballygunge police station. The Corporation sought to take steps
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under Sections 400 and 416 of the Act as per the departmental
procedure.
6. The order of the Court was duly communicated to the concerned
officer. A hearing was conducted but the fate of the hearing was not
communicated to the petitioner. The contempt application was filed by
the petitioner at that stage. Direction was passed by the Court for
service of the application for contempt pursuant to which the
contemnors entered appearance in the matter.
7. On 24th March, 2025 a report signed by the Assistant Engineer and
the Executive Engineer (Building)/Borough-VIII was placed before the
Court disclosing that an order was passed by the Special Officer
(Building) on 22nd January, 2024 by ordering the person responsible
for making unauthorised construction to remove the fibre shaded
structure in front of the shop within a period of thirty days from the
date of communication of the order failing which action will be taken
by the department.
8. The order further mentioned that after compliance of the above
direction, the shop in the ground floor, as shown in the demolition
sketch, will be allowed to be retained on payment of fees under
Sections 400(1) and 416 to be paid within thirty days from the date of
communication of the order failing which action will be taken by the
department.
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9. The Special Officer also ordered that the change of use of the first,
second and third floors may be allowed on payment of fees under
Sections 400(1) and 416 subject to submission of observation of West
Bengal Fire and Emergency Services within a period of thirty days
from the date of communication of the order.
10. Submission was made by the learned advocate representing the
contemnors/Corporation that the decision of the Special Officer
(Building) has been forwarded to the Mayor-in-Council for approval
and till the same is approved, no action can be taken relying on the
same.
11. On 30th May, 2025 the Mayor-in-Council referred the file back to the
Special Officer (Building) for rehearing on account of non-submission
of required documents like clearance certificate from the West Bengal
Fire and Emergency Services, Structural Stability certificate etc. The
matter was reheard by the Special Officer (Building) when direction
was passed to remove the fibre shaded structure in front of the shop
raised unauthorisedly.
12. The change of use in the first floor was allowed subject to payment of
fees under Section 400(1) and 416 to be paid by the respective persons
responsible for construction of the portions at the ground, second and
third floors. Due to non-submission of the no objection certificate from
West Bengal Fire and Emergency Services change of use was not
allowed. The aforesaid order of the Special Officer (Building) was duly
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communicated to all the parties after approval by the Mayor-in-
Council on 23rd June, 2025.
13. It has been submitted by the learned counsel representing the
petitioner that once the authority detected unauthorised construction,
the same cannot be approved either by the Mayor-in-Council or by the
Executive Engineer or the Special Officer (Building).
14. It has been submitted that the Hon'ble Supreme Court in Rajendra
Kumar Bharjatya & Anr. -vs- UP Avas Evam Vikas Parishad &
Ors. reported in 2024 SCC Online SC 3767 clearly laid down that
construction put up in violation or deviation from the building plan
approved by the authority cannot be encouraged. Each and every
construction must be made scrupulously following and strictly
adhering to the Rules. In the event of any violation being brought to
the notice of the Court, it has to be curtailed with iron hands and any
lenience afforded to them would amount to showing misplaced
sympathy.
15. The Hon'ble Supreme Court noticed that the authorities often seek to
enrich themselves through the process of regularisation by
condoning/ratifying the violations and illegalities. The State is
unmindful that this gain is insignificant compared to the long term
damage it causes to the orderly urban development and irreversible
adverse impact on the environment.
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16. The Court laid down that regularisation schemes must be brought out
only in exceptional circumstances and as a one-time measure for
residential houses after detailed survey and considering the nature of
land, fertility, usage, impact to the environment, availability and
distribution of resources, proximity to water bodies/rivers and larger
public interest.
17. The Court further held that master plan or zonal development cannot
be just individual centric but also must be devised keeping in mind
the larger interest of the public and the environment. The Court
expressed its concern by observing that unless the administration is
streamlined and the persons entrusted with the implementation of the
Act are held accountable for their failure in performing statutory
obligations, violations would go unchecked and become more
rampant. If the officials are let scot free, they will be emboldened and
would continue to turn a nelson's eye to all the illegalities resulting in
derailment of planned projects, pollution, disorderly traffic and
security risks.
18. The Court, in larger public interest, passed certain directions one of
which mentions that no permission/licence to conduct any
business/trade must be given by any authority including local bodies
of States, Union Territories in any unauthorised building irrespective
of it being residential or commercial.
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19. The Court also directed that violation of any of the directions passed
by the Hon'ble Supreme Court would lead to initiation of contempt
proceedings in addition to prosecution under the respective laws.
20. The petitioner also relies on the order passed by the Hon'ble Supreme
Court in the matter of Kaniz Ahmed -vs- Sabuddin & Ors. reported
in 2025 SCC Online SC 995 wherein the prayer for regularisation of
unauthorised construction was turned down by the Court by holding
that a person who has no regards for the law cannot be permitted to
pray for regularisation after putting up unauthorised construction.
The Court in clear terms laid down that unauthorised construction
has to be demolished and there is no way out.
21. Supreme Court directed that the Courts must adopt a strict approach
while dealing with cases of illegal construction and should not readily
engage themselves in judicial regularisation of buildings erected
without requisite permissions of the competent authority. The need for
maintaining such a firm stance emanates not only from inviolable
duty cast upon the Courts to uphold the rule of law, rather such
judicial restraints gain more force in order to facilitate the well-being
of all concerned. The Court held that the law ought not to come to the
rescue of those who flout its rigours as allowing the same might result
in flourishing the culture of impunity.
22. It has been argued that the steps taken by the authority is contrary to
law and the direction passed by the Court. For upholding the majesty
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and dignity of the Court, the order of regularisation passed by the
Special Officer (Building) approved by the Mayor-in-Council ought to
be set aside and the unauthorised constructions be directed to be
demolished.
23. Learned advocate representing the alleged contemnors/Corporation
opposes the prayer of the petitioner. It has been submitted that
direction of the Court was to deal with the unauthorised construction.
No mandatory order was passed for demolishing the unauthorised
construction. The competent officer exercised his discretion and dealt
with the unauthorised construction by regularising the same subject
to payment of necessary charges.
24. It has been contended that all unauthorised constructions are not
required to be demolished. The authority felt that the unauthorised
construction that was detected was fit for regularisation, and hence,
passed order for regularisation on payment of necessary charges and
the said order was approved by the Mayor-in-Council.
25. It has been stressed that the order of regularisation is an appealable
one and any person aggrieved by the same may prefer an appeal
before the statutory appellate forum. The order of regularisation gives
rise to a fresh cause of action and correctness and validity of the same
cannot be adjudicated in the contempt proceeding.
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26. It has been submitted that as the order of the Court has been
complied with, no further order may be passed in this proceeding and
the contempt application ought to be disposed of.
27. In reply to the aforesaid submission, the petitioner relies on the
judgment delivered by the Hon'ble Division Bench of this Court on 28th
June, 2024 in MAT 2279 of 2023 with IA no. CAN 2 of 2023 (Bijay
Biswaskarma -vs- Rajkumari Devi Singh & Ors.) wherein the Court
held that appeal from an order passed under Section 400(1) of the Act
can be preferred only by the person responsible for making the
unauthorised construction. In the instant case, as the petitioner is in
no way responsible for making the unauthorised construction,
accordingly, in view of the order passed by the Hon'ble Division Bench,
the petitioner does not have any right to prefer the appeal.
28. As regards challenging the order of regularisation in a separate
proceeding to test its correctness and validity, the petitioner relies
upon the order and the guidelines framed by the Hon'ble Supreme
Court in the matter of Rajendra Kumar Bharjatya (supra) Kaniz
Ahmed (supra) wherein the Hon'ble Supreme Court clearly laid down
that unauthorised construction ought not to be regularised
unmindfully and unauthorised construction has to be demolished.
29. The petitioner has impleaded one Sarika Tiwari as
contemnor/respondent no. 6 in the application for contempt. Learned
advocate representing the said party sought to make submission. The
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Court has not permitted the aforesaid party to make any submission
in support of the order of regularisation that has been passed.
30. The Court is of the opinion that direction was passed upon the official
respondent to perform certain work in a particular manner. On an
allegation of contempt, the Court is required to ascertain as to
whether the order of the Court has been complied with or not. There is
hardly any scope to hear a litigant who is the beneficiary of an order of
the official respondent passed allegedly in compliance of the direction
passed by the Court.
31. Hearing the private party will expand the scope of the contempt
application. The Court sitting in contempt jurisdiction will not be in a
position to pass fresh or new order unless it is in the aid of the order
alleging contempt. While exercising power in the contempt
jurisdiction, the Court is concerned about execution of its order
passed. The aggrieved party can agitate her grievance before the
competent forum.
32. I have heard and considered the submissions made on behalf of the
petitioner and the official respondents/alleged contemnors.
33. The concerned engineer of the Corporation was directed to deal with
the detected unauthorised constructions. For dealing with the
unauthorized construction, the authority ought to have acted in
accordance with law. Instead of getting rid of the illegal and
unauthorized constructions, the authority went on to regularise the
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same on payment of charges. It appears that the authority is plainly
inclined to accept money by not only disregarding the statutory
mandate but also the directions and guidelines laid down by the
Hon’ble Supreme Court from time to time and also in complete
disregard to public interest and the environment.
34. In the report filed by the engineers relying on which the writ petition
stood disposed of it was clearly stated that, the Corporation
sanctioned residential building plan for construction of G+4 storied
building in the year 2007 and the building plan was
modified/regularised twice earlier on 5th May, 2010 and 17th
September, 2011. Completion plan and completion certificate was
issued way back on 20th September, 2011.
35. In the order passed for regularisation the infringement statement is
recorded. From the same it is clear that infringement of several Rules
have been detected. The authority noticed that initially the building
was sanctioned for residential use but presently, the building is used
for business purpose. Despite noticing such flagrant violation of the
statutory Rules, the authority proceeded to regularise the same on
acceptance of fees.
36. The authority already regularised the unauthorised construction in
the said premises on two earlier occasions and has again regularised
the unauthorised construction and also permitted the change of use of
the same. Due to repeated regularisation of unauthorised
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constructions and change of use, the very purpose for which the plan
was sanctioned gets completely changed from a residential structure
to a business one.
37. There is no requirement of a sanctioned plan if the same is not
adhered to. Even after issuance of the completion certificate the
authority went on regularizing illegal constructions. The act of the
authority implies that more importance is given to the fees collected in
lieu of regularisation ignoring and disregarding the larger aspect of
public interest, safety and the environmental laws.
38. An issue has been raised by the authority that correctness of the order
passed in compliance of the direction passed by the Court cannot be
adjudicated in the contempt proceeding as the same gives rise to a
fresh cause of action. In the case at hand, the alleged fresh cause of
action, i.e. the regularisation of the unauthorised construction, is in
complete violation of the statutory mandate and the order, directions
and guidelines passed by the Hon’ble Supreme Court.
39. Despite noticing that the action of regularizing the unauthorised
construction by the Corporation is clearly and openly flouting the
order passed by the Court, will the Court be denuded of the
jurisdiction to punish for contempt? The answer is an emphatic no for
the following reasons.
40. A dishonest builder can proceed to make unauthorised construction
on the anticipation that the same will be regularised on payment of
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charges. Then there is no requirement of obtaining a sanction plan
prior to making construction. The same is not the mandate of law.
After a completion certificate is issued, the authority cannot go on
regularising structures made thereafter without any sanction as the
same remains unauthorised.
41. The petitioner will not have any forum to challenge the order of
regularisation under Section 400(3) of the Act. The Hon’ble Division
Bench in Bijay Biswaskarma (supra) clearly laid down that the person
who made the unauthorised construction can prefer appeal against
any order passed under Section 400(1), but any other person who is
no way connected with the unauthorised construction and intends to
challenge the same has to be provided a forum to ventilate his
grievance. An aggrieved party cannot be left remediless. In such
circumstances, the Court sitting in contempt jurisdiction has to step
in if the subsequent order passed by the authority appears to be in
stark violation of the order passed by the Court or to frustrate the
order passed by the Court.
42. In J.S. Parihar vs Ganpat Duggar & Ors. reported in 1996 (6) SCC
291 the Hon’ble Supreme Court inter alia held that once there is an
order passed by the Government on the basis of the directions issued
by the Court, there arises a fresh cause of action to seek redressal in
an appropriate forum. In such situation it cannot be considered to be
wilful violation of the order. Correctness of the subsequent order
cannot be adjudicated on merits in the contempt proceedings.
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43. Here, the order that has been passed by the authority is, at the face
of it, contrary to and in violation of the law laid down by the Hon’ble
Supreme Court. There is hardly any scope of adjudication of the
correctness of the said order.
44. In Anil Ratan Sarkar & Ors. vs. Hirak Ghosh & Ors. reported in
(2002) 4 SCC 21 the Court, inter alia, held that Contempt of Courts
Act has been introduced in the statute book for securing confidence of
people in the administration of justice. If an order passed by a
competent Court is clear and unambiguous and not capable of more
than one interpretation, disobedience or breech of such order would
amount to contempt of Court. There can be no laxity in such a
situation or otherwise the Court’s order would become the subject of
mockery. Misunderstanding or own understanding of the Court’s order
would not be a permissible defence.
45. In the instant case the direction of the Court was absolutely clear
that the unauthorised constructions that were detected have to be
dealt with in accordance with law. The authority could not have read
the order in any other manner. The only option left to the authority
was to get rid of the unauthorised constructions. The same is the
prescription of law. Any misunderstanding or own understanding of
the Court’s order amounts to contempt.
46. In C. Elumalai & Ors. vs. A.G.L. Irudayaraj & Anr. reported in
(2009) 4 SCC 213 the Court was of the opinion that punishing a
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person for contempt of Court is indeed a drastic step and normally
such action should not be taken. At the same time, however, it is not
only the power but the duty of the Court to uphold and maintain the
dignity of Courts and majesty of law which may call for such extreme
step. For proper administration of justice and to ensure due
compliance with the orders passed by the Court, if a strict view is
required to be taken, the Court should not hesitate in wielding the
potent weapon of contempt.
47. The Hon’ble Supreme Court has consistently laid down that
unauthorised construction ought not to be regularised unmindfully
and unauthorised construction has to be demolished. It has been
reminded that Courts must adopt a strict approach while dealing with
cases of illegal construction. It is an inviolable duty cast upon the
Courts to uphold the rule of law. The Court sounded a word of caution
that the law ought not to come to the rescue of those who flout its
rigours as allowing the same might result in flourishing the culture of
impunity.
48. When a citizen has brought to the notice of the Court an instance of
palpable unauthorized construction being regularized by the authority
upon acceptance of fees, the Court has no other option but to act firm
to uphold the law, dignity and majesty of the order of the Court. It is
the pious duty of the Court to protect the rights of the law abiding
citizens and not be a mute spectator to the illegalities that have been
brought to the fore.
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49. Not taking immediate action against regularization of illegal and
unauthorized construction in lieu of fees will directly extend the life of
an unauthorized construction which may be transferred to an
unsuspecting buyer for valuable consideration and in turn give rise to
various legal complications. Not taking strict action against the
unauthorised constructions will result in showing misplaced
sympathy resulting in breach of the legal provision.
50. It is no gainsaying that a dishonest builder, to circumvent the law, will
leave no stone unturned to hold on to an unauthorized construction
and, indeed in the instant case has been successful in getting the
same regularized. The Court cannot shirk its responsibility to put its
foot down to prevent commission of an illegal act.
51. It such a situation it will be absolutely improper to relegate the party
to a different forum to challenge the order of regularization. It has to
be kept in mind that the petitioner is merely drawing the attention of
the competent authority of an illegal construction that has been done.
It is for the authority to ensure that the same is removed.
52. The larger irreparable damage that will take place if the illegal
construction is regularized has to be kept in mind. A citizen, who
highlights an illegal act, ought not to be made to run around from one
judicial forum to the other seeking justice. Assuming the petitioner is
not in a position to agitate the issue further, then the illegal
construction remains standing on the strength of the order of
regularization.
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53. Time has come when a responsible citizen ought not to feel punished
or harassed or chastised for approaching the Court while highlighting
an illegal act which is liable to be rectified for public good or else none
will come forward to complain against illegal acts of the State. The
general public acts as the eyes and ears of the authority. When a
citizen has approached the authority and thereafter the Court
highlighting an illegal act of the State, prompt necessary action ought
to be taken.
54. The law and its procedure ought to be litigant friendly. The process of
law ought not to be such that a litigant would avoid approaching the
Court because of complexities. Law is handmaid of justice and the
procedure ought not to be such that a litigant is required to approach
Court on repeated occasions to undo a wrong that has been
committed by the authority. If that be so, several illegal acts of the
State will go unnoticed and the general public would be the ultimate
sufferer.
55. When absolute private interest is involved, the Court can always take
a different stand, but when the illegal act is to be remedied for interest
of the public at large, then the Court has to ensure that the illegal act
is taken care of at the earliest. Any other view taken will give a boost
to the perpetrators to continue with an illegal act with impunity as
they often hold commanding positions and are successful in getting
things done to suit their interest. It will certainly be a mockery of the
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justice delivery system if the Court stumbles to stand upright to
uphold the rule of law in such a situation.
56. In view of the discussions made hereinabove the Court is constrained
to hold that the authority has wilfully and deliberately failed to act in
strict compliance of the order passed by the Court. The act is in
absolute violation of and in complete disregard to the law laid down by
the Court. Any order passed contrary to the prescribed and settled law
laid down has to be taken as non est in the eye of law.
57. To remedy the wrong that has been caused, one more opportunity is
provided to the alleged contemnor who is directed to comply the order
passed by the Court by strictly dealing with the unauthorized
constructions as laid down and in accordance with law and in line
with the discussions made hereinabove. An updated report shall be
filed by the alleged contemnor on the returnable date.
58. Relist the contempt application on 25th August, 2025.
59. Urgent certified photocopy of this judgment, if applied for, be supplied
to the parties or their advocates on record expeditiously on compliance
of usual legal formalities.
(Amrita Sinha, J.)
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