MAT/1435/2026 of SK. HABIBULLA AND OTHERS Vs DULAL CHANDRA DAS AND ANOTHER on 21 September 2026

1. Affidavit-of-service filed on behalf of the appellant is taken on record.

2. In spite of service, none appears on behalf of the respondents.

3. We are not inclined to interfere with the order passed by Her Lordship. Her Lordship has rightly appreciated the order passed by the Division Bench. The order of the Division Bench was restricted to the appellants who were before the Division Bench and who preferred a statutory appeal before the civil court.

4. Contempt is a matter between the Court and the alleged contemnor. The relevant portion of the order passed by us is quoted below : “13. We are in agreement with Mr. Roy to the extent that the Municipality does not have a choice but to comply with the order of Her Lordship which has been passed in the writ petition. An order was passed sometime in November 2023 when the Municipality was directed to act and proceed in accordance with law. Thereafter, a contempt application was filed and by an order dated March 5, 2026 the Municipality was directed to act and proceed in accordance with law. On March 5, 2026 Her Lordship recorded that the construction was a new one and in the minutes of the Board Meeting of the councillors recorded that the persons responsible had made unauthorised construction. The Municipality was directed to take steps in accordance with law. This order was challenged in an appeal and the appeal Court directed the appellants to file the statutory appeal, if the appellants were aggrieved by the order of demolition. It is informed to us that the only order that was served upon the appellants is the order dated June 5, 2026 passed by the Municipality and no other proceeding had been conducted prior thereto. In any event the factual correctness of such submission will be decided in the appeal.

14. The appellants have a right of statutory appeal. The Division Bench granted the appellants leave to exhaust such remedy. The civil Court is in seisin of the matter and the dates have been fixed. On the first day, at the instance of the respondent /writ petitioner, the matter was adjourned as caveat had been lodged and a direction was passed for service of the appeal papers. Under such circumstances, we are of the view that, as the appellants have availed of their statutory remedy and filed the statutory appeal, a chance must be given to the appellants to pray for necessary direction before the appellate forum. The direction for day-to-day demolition will cause prejudice to the appellants and the appellants will become remediless. The situation will become irreversible and the appeal will become infructuous. The balance of convenience and inconvenience lies in allowing some breathing time to the appellants. The appellants have approached the civil court, filed put up petitions and orders were passed. They could do nothing more.”

5. Under such circumstances, we are not inclined to either grant leave to appeal or interfere with the order impugned. Our order was passed in respect of an appeal filed by Sk. Rafiqul Islam & Anr. The said order did not apply to the appellant. The contention of the appellant that the order will protect the appellant, is a matter which has to be raised before the learned single Judge or by filing a separate writ petition or by filing a statutory appeal from the order of demolition.

6. Accordingly, the appeal and the application are dismissed.

7. It is surprising to note that batches of appellants are coming before us, challenging orders passed in contempt, although the impugned construction has already suffered an order of demotion. They are trying to frustrate the contempt proceeding by filing these appeals instead of filing statutory appeals.

8. Urgent photostat certified copy of the order, if applied for, be given to the parties, upon usual undertakings.

(Shampa Sarkar, J.) (Arjun Ray Mukherjee, J.)