Article 226 Cannot Be Used to Bypass an Appellate Remedy Against an Appealable Municipal Demolition Order

1. Introduction

In Smti. Kishori Bala Das v. The Andaman and Nicobar Administration and Ors. (Calcutta High Court, Circuit Bench at Port Blair; decided on 06.02.2026), the petitioner challenged an order (Order No. 119 dated 13.01.2026) passed by the Executive Engineer (Planning), Municipal Council, directing demolition of alleged deviated construction.

The dispute arose from allegations that a sanctioned R.C.C. double storied residential building on Plot Survey No. 1931/2 (Sisty Nagar village, Aberdeen) had deviations from the sanctioned plan and/or extended beyond recorded land. The petitioner contended, inter alia, that the inspection and notice were unsustainable due to lack of authenticated measurements and absence of revenue demarcation or joint verification, and that the construction was old with no timely action taken.

The Administration opposed the writ on the grounds that the impugned order was passed pursuant to prior directions of the Court and that the order was appealable, making the writ petition an improper remedy.

2. Summary of the Judgment

  • The Court examined the earlier order in WPA 507 of 2025 (dated 18.11.2025) which had directed the authority to decide the petitioner’s representation by a reasoned order after giving hearing and permitting reliance on documents/plans.
  • The Court found that, pursuant to that direction, the Executive Engineer (Planning) heard all stakeholders, recorded the petitioner’s submissions, prepared a tabular chart of alleged deviations, and directed demolition of the deviated portion within 30 days.
  • The Court held that the impugned order was appealable and that the petitioner approached the writ court without exhausting that remedy.
  • On that basis, the Court found no merit in the writ and dismissed WPA 51 of 2026, while granting liberty to file an appropriate appeal, if permissible in law.

3. Analysis

3.1 Precedents Cited

WPA 507 of 2025

The only decision expressly relied upon in the judgment is the earlier order in WPA 507 of 2025 (dated 18.11.2025). While not treated as a “precedent” in the classical sense of laying down a general rule for unrelated cases, it was legally central because it:

  • Framed the procedural obligations of the authority: consideration of the representation, hearing to all parties, allowance to rely on documents/plans, and a time-bound reasoned order.
  • Provided the benchmark against which the High Court assessed compliance: the Court checked whether the authority did, in fact, hear the petitioner and address the submissions in a speaking, reasoned manner.

The Court’s conclusion that the Executive Engineer (Planning) passed a “reasoned order” after hearing all stakeholders effectively meant that the administrative decision-making process had satisfied the standards imposed in WPA 507 of 2025. This compliance reduced the scope for interference under Article 226.

3.2 Legal Reasoning

The judgment rests on two connected pillars: (i) compliance with the earlier judicial direction and (ii) the availability of an alternative statutory remedy by way of appeal.

(i) Compliance with the “reasoned order after hearing” requirement

The Court noted that the authority:

  • Heard all stakeholders;
  • Recorded the petitioner’s arguments (including denial of inspection report/notice and reliance on the sanctioned plan);
  • Set out alleged deviations in a tabular format; and
  • Issued directions for demolition of the deviated portion within a fixed time.

Once the Court was satisfied that the mandated process (hearing + reasons) had been followed, the writ court became less inclined to re-adjudicate factual disputes (e.g., measurement-based deviation, demarcation, extent of land) within Article 226 proceedings—especially where the statute provides an appellate forum better suited for such determinations.

(ii) Writ restraint in the presence of an appealable order

The Court specifically found that the impugned order dated 13.01.2026 is appealable and that the petitioner approached the writ court “without filing an appeal.” On that basis, the Court dismissed the writ while preserving the petitioner’s right to pursue the appellate remedy (subject to law).

Although the judgment does not elaborate the doctrinal exceptions (such as lack of jurisdiction or breach of natural justice), it implicitly indicates that those exceptions were not made out on the record because:

  • A hearing was provided; and
  • A reasoned decision was issued pursuant to the earlier court order.

3.3 Impact

The decision is significant for municipal/building-control disputes in two practical ways:

  1. Channeling disputes into statutory appeals: Where demolition or deviation orders are appealable, litigants should expect the High Court to decline Article 226 intervention at the first instance, directing them to the appellate forum.
  2. Strengthening “reasoned order” compliance as a shield: Once authorities demonstrably comply with court-directed procedural safeguards (hearing, consideration of documents, reasons), writ interference becomes substantially harder—shifting the battleground to the merits before the appellate authority.

For future cases, the judgment signals that parties challenging demolition orders should focus on: (a) promptly invoking the appellate mechanism, and (b) building a record before the authority/appellate forum on technical issues such as authenticated measurements, plan conformity, and land demarcation.

4. Complex Concepts Simplified

  • Article 226 / Writ Jurisdiction: The High Court’s constitutional power to review administrative action. It is discretionary and often not used when another adequate remedy (like an appeal) exists.
  • Reasoned order (speaking order): An order that sets out the facts considered, the submissions of parties, and the reasons for the conclusion—so the affected party can understand why they lost and can challenge it effectively in appeal.
  • Alternative remedy / Appellable order: If a statute provides an appeal against an order, the normal course is to file that appeal first. Writ courts commonly decline to act as the first appellate forum, especially in fact-heavy disputes.
  • Deviation from sanctioned plan: Construction differing from what was approved by the municipal authority (e.g., extra coverage, additional floor area, setback violations). Such issues often turn on technical measurement and records—typically suited to specialized administrative/appellate scrutiny.

5. Conclusion

The Calcutta High Court (Circuit Bench at Port Blair) dismissed the writ petition challenging a municipal demolition direction primarily because the impugned order was appealable and had been passed after a hearing and by a reasoned decision in compliance with the earlier direction in WPA 507 of 2025. The ruling reinforces a clear procedural message: when an effective statutory appeal is available against demolition-related orders, Article 226 is not meant to be used to bypass that appellate route, particularly where procedural fairness has been observed.