Calcutta High Court
Nirmal Kumar Das Also Known As Nirmal Das vs The Kolkata Municipal Corporation & Ors on 21 August, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT No. 21 of 2023
IA No.GA/1/2023
IA No. GA/2/2023
IA No.GA/3/2023
WPO/7/2023
Nirmal Kumar Das also known as Nirmal Das
Vs
The Kolkata Municipal Corporation & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellant : Mr. Aniruddha Chatterjee, Adv.
Mr. Sounak Bhattacharya, Adv.
Mr. Sumitava Chakraborty, Adv.
For the KMC : Mr. Alok Kumar Ghosh, Adv.
Mr. Subhrangsu Panda, Adv.
Ms. Sabnam De, Adv.
Judgment On : 21.08.2023
2
Apurba Sinha Ray, J. :-
1. The appellant, a self-proclaimed law abiding citizen, raised a
construction on a thika property without sanctioned plan from the Kolkata
Municipal Corporation ('KMC' in short hereinafter) and consequently a stop
work notice under Section 401 of the Kolkata Municipal Corporation Act,
1980 (in short the Act, 1980) dated 18.10.2022 was served upon the
appellant but as he continued with the construction work defying the said
stop work notice, an FIR was lodged against him under Section 401A of the
Act, 1980. As the appellant did not stop his construction even thereafter,
steps were taken by the Authorities under Section 400(8) of the Act, 1980.
2. The main grievance of the appellant/writ petitioner is that though
notice under Section 401 of the Act, 1980 was served upon him no step was
taken from the side of the KMC under Section 400(1) of the Act, thereby
depriving the appellant of an opportunity of being heard before the
concerned Special Officer (Building) of the KMC.
3. Learned Counsel appearing on behalf of the appellant, Mr. Aniruddha
Chatterjee, has submitted that by virtue of the Kolkata Municipal
Corporation (Amendment) Act, 2014 the Kolkata Municipal Corporation
authority under Section 400(1) of the Act, 1980 has been empowered to
regularize certain unauthorized construction. It is also pointed out from the
side of the appellant that the Municipal Commissioner has issued Circular
No. 08 of 2020-21 dated 19.01.2021 in respect of fees for retention of
3
unauthorized constructions which are allowed to be retained by the order of
Special Officer (Building).
4. Learned Counsel of the appellant has further contended that though
notice under Section 401 of the Act has been issued to the appellant/writ
petitioner on 23.12.2022, no notice under Section 400(1) of the said Act was
ever served upon the petitioner for hearing of regularization of alleged
deviation, if any. The Director General (Building) of the Corporation issued
office Circular No. 16 of 2021-22 dated 02.03.2022 specifying the stages for
deposit of fees and the amount thereof before hearing in respect of
unauthorized construction.
5. As the Kolkata Municipal Corporation authority has straightway
adopted the process under 400(8) of the Act after issuance of notice under
Section 401 of the Kolkata Municipal Corporation Act, 1980 a valuable right
of hearing of the appellant, as envisaged under Section 400(1) of the Act,
1980 has been infringed and therefore the process undertaken by the
Kolkata Municipal Corporation authority under Section 400(8) of the Act,
1980 which is a draconian piece of law, has seriously violated the principles
of natural justice.
6. Learned Counsel has vehemently submitted that as there is no scope
of hearing in respect of the process initiated under Section 400(8) of the Act,
1980, there must be some materials from the side of the KMC to show that
the Mayor-in-Council and the Mayor have applied their minds in coming to
the conclusion that immediate action for demolition of the concerned
4
building is necessary. Learned Counsel has pointed out that from the
materials on record it appears that in each and every case of similar nature,
a stereotyped order is passed without going into the differences in factual
aspects of the cases. As the Mayor and Mayor-in-Council are used to
passing stereotyped, same order in respect of similar types of cases, as per
the submission of the Learned Counsel of the appellant, it can be safely
concluded that there was no application of mind either by the Mayor or the
Mayor-in-Council.
7. Learned Counsel for the appellant also drew the attention of this court
to the Kolkata Municipal Corporation (Transaction of Business of the Mayor-
in-Council) Regulations, 1986 and submitted that a bare perusal of the
provisions thereof would show that the Mayor-in-Council did not consider
the case of the appellant independently. Rather it passed a stereotyped order
which it passes in similar types of cases. According to Mr. Chatterjee, the
basic ingredients of Section 400(8) of the Act, 1980 are that the Mayor-in-
Council must be of the opinion that immediate action is called for in relation
to a building which is being constructed in contravention of the provisions of
the Act and the reasons must be recorded in writing. In the instant case the
departmental note indicating that the building may cause loss of human life
and property and also may cause other hazards like fire, etc., is not
comprehensive. The said report does not also reflect anything about the
structural stability of the building and, therefore, placing reliance on the
said report, the order under Section 400(8) of the Kolkata Municipal
5
Corporation Act cannot be said to have been passed in accordance with the
requirement of the statute.
8. Learned Counsel also argued that the said demolition order issued
under Section 400(8) dated 09.12.2022 does not contain any agenda item
number or any serial number which raises a serious doubt about its
existence. In any event, the order of demolition passed under Section 400(8)
of the Act in respect of the premises in question was issued without
considering and following the specific provisions as laid down in Kolkata
Municipal Corporation (Transaction of Business of the Mayor-in-Council)
Regulations, 1986 and hence is absolutely illegal, arbitrary and accordingly
the said demolition order should be set aside.
9. Learned Counsel has vehemently argued that the Regulations, 1986
clearly enumerate the fact that all the cases referred to in the second
schedule of the Regulations, 1986 shall be brought before the Mayor-in-
Council in accordance with the provision contained in paragraph 2 thereof.
The second schedule to the said Regulation which lists demolition of
construction in contravention of provisions of KMC Act in serial no. 52 is the
one which requires sanction of Mayor-in-Council. Regulation 13 of the said
Regulations provides that a case referred to in the second schedule has to be
submitted to the Mayor through the Municipal Commissioner by the
department concerned with a view to obtaining the order of the Mayor for
circulation of the issue or bringing up the same for discussion at a meeting
6
of the Mayor-in-Council. But it would be clear that such procedure was not
adopted in this case.
10. A quasi judicial authority, according to Learned Counsel of the
appellant, exercising such a function must record its reason as to why and
on the basis of what an order has been passed. A bare reading of the order
shows that there is nothing which will be a safeguard against the ipse dixit
of the decision maker. The problem as has been recorded in the said order
cannot be logically provided by the corporation in any manner whatsoever.
The corporation is conferred with sweeping power under Section 400(8) in
issuing directions which are grossly against the requirement of the statute.
Presumably and admittedly, no building can be constructed without a
sanctioned plan but even then it cannot be the reason for invoking the
provisions of Section 400(8) of the Act unless and until the precondition for
invocation of the said section is found to exist by statutory authority.
11. Learned Counsel cited the decision in the case of Sunil Chandra Dey
Vs. State of West Bengal & Ors. reported at (2007) 2 Cal LJ 674 in
support of the contention that for more than last 17 to 18 years orders
passed under Section 400(8) of the Kolkata Municipal Corporation Act, are
all stereotyped and mechanical orders. The contents of each and every order
under Section 400(8) are same which casts a shadow of doubt as to the
functioning of the Corporation. It was also argued that the respondent
corporation in its alleged demolition order under Section 400(8) has
miserably failed to establish the immediate and emergent reason for
7
invocation of the said provision. Learned Counsel placed reliance in this
regard on the judgment of Saif Impex Private Limited and Anr. Vs. The
Kolkata Municipal Corporation & Ors. reported at 2014 SCC OnLine Cal
16044 and Smt. Icchu Devi Choraria Vs. Union of India & Ors. reported
at (1980) 4 SCC 531. Learned Counsel for the appellant further submitted
that the appellant has taken out another application being IA No. 3 of 2023
wherein the appellant has brought on record the prayer made by the
appellant before the respondent corporation for regularization of the
unauthorized construction on February 22, 2023 and the said regularization
prayer has been made keeping in mind the provisions of the Kolkata
Municipal Corporation (Regularization of Building) Regulations, 2015 by
which the Corporation has regularized various structures within its
jurisdiction, similar to that of the present appellant.
12. Learned Counsel Mr. Alok Kr. Ghosh, representing the KMC has
vehemently argued that if massive unauthorized constructions are detected
and the construction works are found in progress, the Mayor-in-Council can
adopt the process laid down in Section 400(8) of the Act, 1980. Immediate
action does not mean demolition forthwith. Immediate action means
immediate decision for demolition. Implementation of the decision for
demolition may be halted for variety of reasons. In case of demolition of
unauthorized construction the recording of reasons should be as such,
particularly after failure of the person responsible to produce any valid
document in support of the impugned construction on the date of initial
8
inspection of the premises and also even after issuance of stop work notice
upon detection of unauthorized construction.
13. Learned Counsel has further pointed out that public safety, disruption
of essential services, fire hazards etc. are the reasons behind introducing a
provision like Section 392 in the Kolkata Municipal Corporation
Act. Learned Counsel has also submitted that if a construction is made
without complying with the provisions of Kolkata Municipal Corporation Act,
1980 and the National Building Code, wherever necessary, a reasonable
presumption as regards structural instability of the building, endangering of
public safety etc. can be drawn. So far as regards the allegation as to the
nature of the order being stereotyped under Section 400(8) of the Kolkata
Municipal Corporation Act, 1980, Learned Counsel submitted that there is
no falsification in making such order since the nature of the order and
writing thereof may be identical and similar having regard to the subject
issue being impugned construction without sanction or without the validity
of law and as such there is no scope to provide different reasons in identical
and similar nature of cases.
14. Learned Counsel Mr. Ghosh has pointed out that except minor nature
of unauthorized construction work, which may be allowed to be retained in
terms of third proviso to Section 400(1) of the Kolkata Municipal
Corporation Act, 1980, all unauthorized constructions may be dealt with
under Section 400(8) of the Act, 1980.
9
15. Learned Counsel has further argued that there has been no infraction
of Transaction of Business Regulations, 1986 since the concerned
department prepared the memorandum indicating the salient facts of the
case precisely with points for decision and such memorandum having been
approved by the Mayor, after it was brought to him through the Municipal
Commissioner, the same cannot be said to be irregular as similar orders
were passed in different cases. Moreover, even if it is found that there are
some infractions in complying with the said regulations, the same cannot
vitiate the decision/resolution as there was substantial compliance with the
provisions of the said regulations, and the infraction being merely
procedural in nature may be considered for upholding the
resolution/decision. Learned Counsel has further argued that the petitioner
has no legal right for protection in praying for a writ of mandamus since the
petitioner did not acquire any right over the property unauthorizedly
created. According to learned counsel of the KMC, the court has a very
limited scope to make judicial review of the decision of the Mayor-in-Council
under Section 400(8) of the Act, 1980 since the petitioner/appellant does
not enjoy any right to approach this Hon'ble Court with a writ petition to
protect or enforce any legal right. The Learned Counsel of the Kolkata
Municipal Corporation has referred to the following case laws in support of
his contention reported at (2001) 6 SCC 392 (State of UP Vs. Harendra
Arora & Anr.), (2008) 2 SCC 280 (Oriental Bank of Commerce Vs.
Sunder Lal Jain & Anr.), AIR 1977 SC 276 (Mani Subrat Jain Vs. State
of Haryana & Ors.), AIR 1964 SC 685 (State of Orissa Vs. Ram Chandra
10
Dev & Ors.), (2006) 7 SCC 597 (Royal Paradise Hotel (P) Ltd. Vs. State
of Haryana & Ors.), 2000 SCC OnLine Cal 519 (C.M.C & Anr. Vs. Abid
Hossain), (1990) SCC OnLine Cal 9 (Maula Bux & Ors. Vs. State of West
Bengal & Ors.)
Court's Decision
16. If we consider the argument placed on behalf of the appellant, we shall
find that according to him even there is unauthorized construction without
sanctioned plan, the person responsible is entitled to a notice of hearing
under Section 400(1) of the Act, 1980, and as such the procedure adopted
by the KMC under Section 400(8) of the Act, 1980 after issuance of notice
under Section 401 of the said Act, is arbitrary and contrary to the provisions
as laid down in the third proviso to Section 400(1) of the said Act. The
appellant has also pointed out that after insertion of third proviso to the
above Section, relevant circulars were issued stating the amount of fees and
stages for deposit of such fees for the purpose of retention of such
unauthorized construction subject to the order of Special Officer Building.
From the said argument, it transpires that as if all the unauthorized
constructions under the jurisdiction of KMC can be regularized or at least
prayer for regularization of all unauthorized constructions can be made by
virtue of the third proviso of Section 400(1) of the Act, 1980.
17. For the purpose of proper understanding of the issue I would like to
quote the third proviso to Section 400(1) of the KMC Act, 1980:-
11
" Provided also that the Municipal Commissioner may
by order, on such terms and conditions and on payment of
such fees as may be prescribed by regulation, regularize
the minor unauthorized erection, or execution of any minor
work without sanction under this Act, or minor deviation
from the sanctioned plan or execution of any minor
erection or work in contravention of any sanctioned plan
under this Act or the rules or the regulations made
hereunder, as the case may be.
Explanation.- For the purpose of this section, "minor
deviation" shall be such as may be determined by
regulations."
18. From a cursory glance over the said proviso, on which the appellant
has placed his argument to a great extent, it appears that the said third
proviso does not include nor is meant to include all unauthorized
constructions irrespective of their nature and extent but, is confined to
"minor unauthorized erection" or "execution of any minor work without
sanction" or "minor deviation from the sanctioned plan or work in
contravention of any sanction plan". As such the said proviso does not relate
to huge or massive unauthorized construction or erection but the same
relates only to minor erection or minor deviation etc. The appellant has
utterly failed to show that his unauthorized construction is merely a minor
one.
19. The appellant has also drawn the attention of this court to the Kolkata
Municipal Corporation (Regularization of Building) Regulations, 2015 in
support of his contention. Now if we go through the said Regulations we
shall find the term "minor deviation" has been defined in Regulation 3(1)(b)
as hereunder":-
12
19.1. " 'Minor Deviation' means deviation as will be determined by the
Municipal Commissioner or any of its officer delegated by him, in
consideration of the terms and conditions mentioned in clause 4 of these
regulations.
Regulation 3(1)(c) has also defined minor unauthorized erection or work as
follows:-
Minor unauthorized erection means:-
(1) Execution of any minor work without sanction,
(2) Minor erection or work in contravention of any sanctioned plan in
consideration of the terms and conditions mentioned in regulation 4 of these
regulations."
20. If we go through clause 4 of the said Regulations, 2015 we shall find
that in the said clause, terms and conditions for regularization under the
Regulations, 2015 have been specifically mentioned and for the purpose of
our present discussions, it would be helpful for us to note the opening
paragraph of the said clause which is as follows:-
"Any unauthorized erection or work may be regularized by
the Municipal Commissioner or any of its officer delegated
by him provided that the erection or work is determined by
the Municipal Commissioner or any of its officer delegated
by him as 'minor' as per regulation 3(1)(b) and 3(1)(c) of
this regulation keeping regard to the following things......"
21. From the above it is crystal clear that third proviso to Section 400(1)
of the Act, 1980 and the Regulations, 2015 formulated by virtue of the said
proviso, that is KMC (Regularization of Building) Regulations, 2015, deal
with minor unauthorized erection or work or minor deviation etc. and they
do not include any construction other than minor construction or erection.
In order to avail of the benefit as provided under third proviso to Section
400(1) of the KMC Act, 1980 or KMC (Regularization of Building)
13
Regulations, 2015, the appellant is to show prima facie before this appellate
forum that his erections were minor in nature which can be sanctioned by
the Special Officer Building if he was actually allowed to appear before him.
There is no material from the side of the appellant to show that he actually
raised a minor erection or construction without sanctioned plan.
22. On the other hand, the KMC has argued that the appellant has raised
massive construction without any sanctioned plan and such construction is
comprised of several floors on the property in question. The relevant affidavit
containing report, photographs of the said building show that there are
merits in the contention of the Learned Counsel of the KMC. Therefore, the
contention of the appellant that by virtue of KMC (Amendment) Act, 2014
the KMC authority under Section 400(1) of the Act, 1980 has been
empowered to regularize unauthorized constructions irrespective of its
nature or the same can be retained on payment of prescribed fees, subject to
the order of the Special Officer (Building), is not tenable.
23. The appellant has also submitted that as the provisions of Section
400(8) do not provide any opportunity of hearing to the person responsible,
the steps under Sub-section (8) of Section 400 of the Act should be adopted
by the KMC with great care and caution. In this regard the Learned Counsel
has referred to the case law reported at 2007 SCC OnLine Cal 613 (Sunil
Chandra Dey V. State of West Bengal & Ors.). By referring to the said
decision Learned Counsel for the appellant has submitted that stereotyped
orders are being passed by the KMC authority for last 17/18 years. This
14
attitude was deprecated in the said case law and in this case also there is a
stereotyped order and certain serious inconsistencies are found in
complying with the Transaction of Business of Mayor-in-Council
Regulations, 1986. As such, it was urged that the order passed by the
Mayor-in-Council asking the authority to take immediate action for
demolition is bad in law.
24. I have gone through the above case law and I find that a Learned
Judge in the said decision has seriously deprecated the issuance of
stereotyped order in several demolition of building matters. According to the
Hon'ble Judge, "in terms of Section 400(8), Mayor-in-Council is the sole
Judge of facts. However, the factual finding arrived at by it that immediate
action is called for, in terms of the statutory mandate must have the support
of reasons. It is no doubt true that in terms of the procedure prescribed by
the said regulations, it has to proceed on the note prepared by the
department concerned but this court finds to its utter dismay that the
Mayor-in-Council had abdicated its statutory duty in the present case by
according disproportionate weight to such note. No wonder, the impugned
resolutions suffer from the vice of irrationality."
25. However, a contrary view adopted by a Division Bench of this Court in
C.M.C & Another Vs. Abid Hossain with C.M.C Vs. Maula Bux with
Ziauddin Vs. Mayor-in-Council (Building) and Arif Iqbal Vs. State of
West Bengal, reported in 2001 (1) CHN 4 was not considered by the
Learned Single Judge in the decision reported at 2007 SCC OnLine Cal 613.
15
A Division Bench of this Court has observed in paragraph 12 of the said
judgment as follows:-
"12. It is true that right to property is recognized as a right
of a citizen in the Constitution itself. A citizen may be
deprived of such right only by the authority of Law. This
right to property cannot be construed in abstract. A
building erected by a person, who owns the land or who is
authorized to erect a building on a piece of land, has a
right to property in the building erected on such land. If a
person erects a building on a land which belongs to the
public, he has no right to property in the building.
Similarly the building must be erected in accordance with
the sanction. If a building has been erected without
sanction, such erection being an illegal erection, no right to
property flows therefrom. Similarly a person, who is
authorized to erect a building in accordance with sanction,
erects a building in excess of the sanction or contrary to
the sanction, to the extent the erection is beyond sanction
or contrary to sanction, the person concerned cannot be
said to have any right to property therein. By sub-section
(8) of section 400 of the Act, power has been vested to
demolish only such portion of the erection in which there is
no right to property. The demolition of a dilapidated
building or a part thereof is not at all comparable with
demolition of an unauthorized erection. In the case of
demolition of a dilapidated building or a part thereof, but
not an unauthorized building, the right to property is
affected. The right to property in such a dilapidated
building can be taken away having regard to public
safety. Appropriate provisions therefore have been made
in the Act itself. In the instant case we are considering
totally unauthorized erection for the same is either without
sanction or in contravention or contrary to or in deviation
of sanction. There is no right to property in such erection."
26. The Division Bench also made certain observations in paragraphs 13
and 14 of the judgment which may be helpful to note for our present
discussion:-
".....If it appears that an erection is being made without
sanction on a land owned by the person, who is making
the erection, thereby causing public inconvenience, and
16
notice has been given to stop such erection, but the person
concerned does not stop such erection, would it be proper
for the Corporation to remain a mute spectator? In the
normal circumstances such stop-work order is enforced by
the Police, but then the Police Personnel are not under the
control of the Corporation. Therefore, if by reason of either
the connivance of the Police Personnel or taking advantage
of their carelessness or ineffectiveness, the person
concerned refuses to comply with the stop-work order,
would the Corporation remain an idle spectator? In order
to exercise the power the person exercising the power
must subjectively determine that the exercise of power is
of immediate necessity. Therefore, in the section itself
enough guidelines have been given as to when
extraordinary power has to be exercised under sub-section
(8) of section 400 of the Act either in lieu of exercise of
power under sub-sections (1) to (7) of section 400 of the
Act or in addition thereto. The purpose and object of
exercise of power in both the situations are one and the
same, to prevent contravention of the provisions of the Act
in relation to a building or a work being carried on. The
extraordinary power has not been granted to the
Municipal Commissioner. The same has been granted to
the Mayor-in-Council which is the second highest body
entrusted to carry out the duties of the Corporation. That
itself is a safe-guard. And in any event if this safety valve
does not save the person in question, as aforesaid, the
person may be compensated adequately. Sub-section (8) of
section 400 therefore, cannot be struck down on the
ground that conferment of such power is arbitrary. In a
given case, however, it may be shown that user of such
power was not proper and power under sub-section (1) of
section 400 ought to have been used. In such
circumstances too the person affected may be adequately
compensated.
14. As pointed above, conceptually it is not conceivable
that a citizen in India has personal liberty to make an
unauthorized construction. In that view of the matter, it
cannot be said that sub-section (8) of section 400 of the
Act is violative of Article 21 of the Constitution."
27. From the above it is crystal clear that the appellant has no absolute
right to claim that his valuable right of hearing has been violated by the
corporation by taking steps under Section 400(8) of the Act, 1980.
17
28. Now let us consider what prompted the KMC to take such drastic
action against the present appellant under sub-Section (8) of Section 400 of
the Act, 1980.
29. From the materials on record it appears that after receiving a
telephonic complaint from higher authority the concerned officer inspected
the relevant premises and found that the person responsible constructed
some columns on ground floor and on demand the person responsible failed
to produce any sanctioned plan in respect of such construction. Accordingly,
a stop work notice under Section 401 of KMC Act 1980 was issued on
18.10.2022 asking the person responsible to stop the illegal construction
immediately. It was also found on 20.10.2020 after inspection that the
person responsible resumed the unauthorized construction by defying the
stop work notice under Section 401 of the KMC Act, 1980 and as such, an
FIR against the person responsible was lodged from the side of KMC under
Section 401(A) of the KMC Act, 1980. Even then the construction work was
not stopped. On 28.11.2022 it was reported from the side of the concerned
Executive Engineer (Civil), Building Department, Borough - I, KMC that
during inspection it was found that the said unauthorized construction was
carried on beside a water body and portion of the said unauthorized
construction was raised on a part of the water body. A report was also sent
to the Environment and Heritage Department for taking necessary action. In
spite of taking action under Section 401 and 401A of the KMC Act, 1980 the
construction work was being carried on, on the date of submission of the
18
said report dated 28.11.2022 and accordingly, request was made for
processing the matter under Section 400(8) of the KMC Act, 1980.
30. From the above it transpires that the person responsible was time and
again asked to stop the construction work but he did not pay any heed
threats. Thereafter, an FIR was lodged but the same also failed to deter him
from carrying on with the construction. Stop work notice was issued on
18.10.2022 but from the materials on record it transpires that the
construction work was being continued even on 28.11.2022. From the
photographs supported by affidavit dated 27.04.2023 it appears that the
construction was not a minor one. When a stop work notice was issued from
the side of the KMC, the person responsible should have stopped the
construction work and approached the KMC authority. Admittedly he was
carrying on the construction without sanctioned plan in violation of the
provisions as laid down in Sections 392 and 393 of the KMC Act. The said
Sections may be quoted as hereunder:-
"392. Prohibition of building without sanction.- No person
shall erect or commence to erect any building or execute
any of the works specified in section 390 except with the
previous sanction of the Municipal Commissioner and in
accordance with the provisions of this Chapter and of the
rules and the regulations made under this Act in relation
to such erection of building or execution of work and on
payment of such fee as may be determined by the
Corporation.
Provided that in case of allowing incremental Floor Area
Ratio over and above the prescribed limit of Floor Area
Ratio in the prescribed manner, rate or fee or charge
payable for additional Floor Area Ratio shall be decided in
terms of "Circle Rates" of State Government, and the
formula for this purpose shall be finalized by the State
19
Government, and all such additional rate or fees or
charges to be collected on account of granting of additional
Floor Area Ratio will be payable to the State Exchequer
directly, and as may be decided by the State Government,
a portion of the collected rate or fees or charges shall be
allotted or transferred to the Corporation for undertaking
developmental schemes.
393. Erection of building- Every person who intends to
erect a building shall apply for sanction by giving notice in
writing of his intention to the Municipal Commissioner in
such form together with such fees including Drainage
Development fee and containing such information as may
be prescribed:
Provided that the Corporation may also levy fees under
this section with retrospective effect."
31. As the person responsible carried on the relevant construction defying
the stop work notice and constructing several floors without giving due
regard to the provisions as laid down in Sections 392 and 393, one cannot
expect that the KMC authority will remain idle and allow the person
responsible to carry on with the unauthorized construction without
sanctioned plan merely because a beneficial regulation have been brought
into force for regularizing minor erection works. If the person responsible
thinks that whatever be the nature and extent of his erection work, he can
raise construction defying the stop work notice and defying the allegations
made against him in the FIR only because that there are certain beneficial
provisions for regularizing unauthorized constructions, he has committed a
grave mistake and the KMC authority certainly has powers to demolish the
unauthorized structure even without giving him any opportunity of hearing.
20
32. Needless to mention that unauthorized construction has become a
menace to our civilized society and the extent and magnitude of such
unauthorized construction in every nook and corner of our country has
reached an alarming proportion. To curb the menace the Hon'ble Supreme
Court as well as the High Courts have shown zero tolerance to such
unauthorized constructions. The unauthorized constructions, which
jeopardise planned development, have been seriously deprecated since the
same are against the societal interest of our country. The society has
certainly a right against citizens; not to make any unauthorized
construction, since it militates against the planned development,
environmental issues and so on. As a custodian of societal interest, the
municipal authorities have been empowered by the municipal laws to see
and check that no such unauthorized construction is made under their
respective jurisdiction so that societal interest can be preserved for the sake
of the public at large. This aspect of societal interest cannot be ignored and
in several judicial decisions such interest of the society has been kept in the
forefront. In our case in the provisions of KMC (Regularization of Building)
Regulations, 2015, we shall find that this societal interest has been given a
very important place. Regulation 4 of the said Regulations, 2015 provides
that any unauthorized erection or work may be regularized by the municipal
commissioner or any of its officer delegated by him provided that the
erection work is determined by the Municipal Commissioner or any of its
officer delegated by him as "minor" as per regulation 3(1)(b) and 3(1)(c) of the
Regulations, 2015 having regard to several factors, inter alia, social interest,
21
environmental aspects etc. Therefore, the appellant has also a duty towards
the public or society at large not to make unauthorized construction and he
cannot claim that as the third proviso to Section 400(1) of the Act, 1980 has
been added he can raise construction as per his whims and caprice. The
KMC indeed has a duty to protect the social interest aspect and can
certainly demolish the unauthorized construction under Section 400(8) if it
affects societal interest as aforesaid.
33. Another contention of the appellant is that the procedure for passing
an order under Section 400(8) of the Act, 1980 was not properly followed by
the Mayor-in-Council and therefore the said order is illegal and arbitrary. It
is claimed that stereotyped orders are being passed by the Mayor-in-Council
for last 17/18 years in respect of similar cases. The appellant has also
doubted the authenticity of the resolution of Mayor-in-Council as there is no
memo/agenda no. & date and other particulars mentioned in the relevant
order which was allegedly placed before the Mayor.
34. He has also referred to Regulation 13(1) and (2) of Regulations, 1986
wherein the provisions are as follows:-
"(1) All cases referred to in the Second Schedule to those
regulations shall be submitted to the Mayor through the
Municipal Commissioner after consideration by the
department concerned with a view to obtaining his orders
for circulation of the case or for bringing up for
consideration at a meeting of the Mayor-in-Council.
(2) The Mayor may direct that any case referred to in the
Second Schedule to these regulations may, instead of
being brought up for discussion at a meeting of the Mayor-
in-Council be circulated to the Members for opinion and if
all the Members are unanimous and the Mayor thinks that
22
a discussion at a meeting of the Mayor-in-Council is not
necessary, the case shall be decided without such
discussion. If the Members are not unanimous or if the
Mayor thinks that the discussion at a meeting is
necessary, the case shall be discussed at a meeting of the
Mayor-in-Council."
35. Learned Counsel for the appellant had doubted the resolution taken
in Mayor-in-Council in respect of the instant matter as there is no mention
of number of memorandum of outside agenda in the said resolution with
date. It is true that though the agenda for Mayor-in-Council meeting on
09.12.2022 was mentioned memorandum of outside agenda as 19.2 but the
same was not mentioned in the resolution adopted by the Mayor-in-Council
Kolkata Municipal Corporation on 09.12.2022. In my considered opinion,
the said resolution was taken on the notes prepared by the department and
signed by Executive Engineer (Building), Borough - I, Deputy C.E.
(Building/North), DG (Building) and the Municipal Commissioner which
contains the number of memorandum of outside agenda as 19.2 and in the
bottom portion of the said notice the resolution of the Mayor-in-Council was
noted down. Absence of number and date in the resolution of Mayor-in-
Council should not be doubted as the attendance register shows that the
Mayor and the other members of the Mayor-in-Council attended the meeting
concerning the memorandum of outside agenda being MOA 19.2 on
09.12.2022 at 4:30 p.m. Agenda Items Register of Mayor-in-Council has also
supported this conclusion since the said Register shows that the subject of
the said meeting was to consider the proposal regarding unauthorized
construction at premises no. B/1/1/H/11/1 Dum Dum Road, Ward No. 2,
23
Borough - I, P.S. Sinthi. Therefore, there is no doubt that even if there is no
MOA number and date in the resolution adopted by the Mayor-in-Council,
the absence of such particulars in the relevant portion does not cast a doubt
as to holding of meeting in connection with the property of the appellant.
36. Learned Counsel has also submitted that stereotyped orders are being
made in every meeting of Mayor-in-Council in respect of demolition of
buildings having similar types of allegations. I would like to reproduce the
resolution taken by the Mayor-in-Council in this case:-
"Considering the facts and circumstances as stated above
in the departmental report and upon due consideration of
other relevant issues, it is resolved that since the person
responsible continued with the unauthorized construction
as indicated in the précis of the Agenda Item as identified
by the concerned department. Since such unauthorized
construction is unsafe and may lead to accident resulting
in loss of human life and property, appropriate action
towards demolition of such unauthorized construction be
taken forthwith under Section 400(8) of the KMC Act, 1980
with the help of police force."
37. If we go through the Transaction of Business of the Mayor-in-Council
Regulation, 1986, we shall find that by Regulation 15(1) it has been
specifically mentioned as hereunder:-
"When it has been decided to bring a case before the
Mayor-in-Council, the department to which the case
belongs shall, unless the Mayor otherwise directs, prepare
a Memorandum indicating with sufficient precision the
salient facts of the case and the points for decision. Such
Memorandum and such other papers as are necessary to
enable the case to be disposed of shall be circulated to the
Members after the Municipal Commissioner has seen
them. If a case concerns more than one department, the
Members supervising the works of concerned departments
shall attempt by previous discussions to arrive at an
agreement."
24
38. From the above it is clear that unless the Mayor otherwise directs, the
concerned department to which the case belongs, shall prepare a
memorandum indicating with sufficient precision the salient facts of the
case and also the points for decisions. Therefore, it goes to show that the
department to which the case belongs shall state the facts of the case
precisely and mention the points for decision, that means, the department
has been given power to consider the factual aspects of the case and also to
specify the points on which the decision on a particular case has to be
taken. It is not that the Mayor-in-Council will decide the issues. Rather,
Mayor-in-Council along with the Mayor have been entrusted to see whether
the facts and the points on which decision is going to be taken in a
particular case are being confirmed by them or not. In fact the Mayor-in-
Council is entrusted as a final authority to concur or not to concur with the
departmental note or the suggested points for decision as specified by the
department. The Mayor-in-Council is to check as a final authority whether
the factual aspects and the proposed decision are, in their opinion, correct
or not. Therefore, as the matter in every case relates to unauthorized
construction without sanctioned plan and the demolition thereof, there is no
scope for the Mayor-in-Council to give or to use different language or
different parts of speech for every case in disclosing that they are ad idem
with the proposed decision. Therefore, even if the languages are same, the
same cannot be doubted. On the other hand it is to be seen whether or not
25
the departmental note actually depicted the correct position of the factual
issues. The departmental note in this case is as hereunder:-
"This is a case of unauthorized construction of one storied
RCC framed structure along with RCC stair and casting of
RCC columns over one storied. On demand, P.R. could not
produce any valid document in support of such work. The
area of unauthorized construction is 248.00 sqm (approx.).
Accordingly, this department issued stop work notice
u/sec, 401 of the KMC Act, 1980 on 18/10/2022 along
with police Intimation sent to Sinthee Police Station on
18/10/2022. Upon further inspection it was found that
the P.R resumed the work defying stop work notice for
which this department lodged F.I.R under Section 401A of
the KMC Act, 1980 on 20/10/2022.
The PR has continued with the unauthorized construction
at the captioned site defying all the actions taken by KMC.
Department also prepared proposal u/sec. 400 of the KMC
Act, 1980 along with D-Sketch and infringement
statement. The proposal infringes several KMC Bldg.
Rules, 2009.
Moreover, the said unauthorized construction, if allowed to
stand, may collapse at any moment of time leading to
accident resulting in loss of human life and property and
will also create several hazards like fire hazards and
environmental hazards etc.
Considering the gravity of the situation and safety of
public in general, department recommends demolition of
unauthorized structure forthwith under Section 400(8) of
the KMC Act, 1980.
The matter is placed before the meeting of Mayor-in-
Council, KMC for approval."
39. The above departmental note had depicted the audacious attitude of
the appellant. Such audacity of the appellant is palpable since though there
exists specific provisions under Section 392 of the Act 1980 prohibiting the
construction or erection or commencement of erection of any building
26
without any sanctioned plan, the appellant started construction in the
relevant property without any sanction from the Corporation. He was also
served with a notice under Section 401 of the Act, 1980 asking him to stop
the unauthorized construction but he did not stop. An FIR was lodged
against him under Section 401A of the Act, 1980 but this also failed to stop
him and he carried on his construction up to several floors. If that be so,
how such a recalcitrant person can be stopped from carrying on such
unauthorized construction in a corporation area? If all the initial legal
procedures failed to deter the appellant from proceeding with his
unauthorized construction work, the KMC can certainly take steps under
Section 400(8) of the Act, 1980 without any further notice to the appellant,
since there is chance of constructing more additional floors or creating third
party interest etc. For the purpose of the present discussion we should
reproduce the provisions under Section 8 of Section 400 as under:-
"Notwithstanding anything contained in this chapter, if the
Mayor-in-Council is of the opinion that immediate action is
called for in relation to a building or a work carried on in
contravention of the provisions of this Act it may for
reasons to be recorded in writing, cause such building or
work to be demolished forthwith."
40. It is found from the said provision that there is no pre-requisite
condition mentioned in sub-section (8) of Section 400, that there must be
some grave emergency or imminent danger to public safety or something like
that. In my considered opinion it is a settled principle of law of
interpretation that when letters of law are not ambiguous or are not
susceptible to different meanings, neither any word or sentence can be
27
added to such clear unambiguous provisions of law. Taking a cue from the
said rule of interpretation, in my view, if the Mayor-in-Council opines that
immediate action is required for demolition of a building or work which is
being carried on in contravention of the provisions of the Act, 1980 the
Mayor-in-Council after recording reasons may ask the concerned
department to proceed with the demolition work forthwith. The said
provision of law does not require the Mayor-in-Council to consider whether
or not there exists any grave emergency towards public safety or imminent
danger for such unauthorized construction. But on the other hand, it is
sufficient that if, after considering the contraventions made by the person
responsible, the Mayor-in-Council is of the opinion that immediate action for
demolition of the building or work as aforesaid is necessary. The case in
hand is one of the instances when such immediate action has been directed
to be taken on the basis of opinion of the Mayor-in-Council.
41. The decision reported at 2007 SCC OnLine Cal 613 has thoroughly
discussed the provisions of KMC Act, 1980 as well as Transaction of
Business of the Mayor-in-Council Regulations, 1986. In the said case law
the Mayor-in-Council under Section 400(8) has been described as the sole
judge of the facts but if we take a conjoint reading of Section 400(8) of the
Act, 1980 and Regulations 1986, we shall find that on the factual aspects as
depicted in the departmental note with points for decision, the Mayor-in-
Council under Section 400(8) of the Act has been asked to opine whether or
not the department should proceed with immediate action for demolition of
the building or a work which is being carried on in contravention of the
28
provisions of this Act. The Mayor-in-Council has to form an opinion on the
factual aspects reflected in the note prepared by the department concerned.
The said sub-section (8) of Section 400 of the Act, 1980 requires the opinion
rather than the decisions of the Mayor-in-Council and undoubtedly, but the
provisions of the Act, 1980 have precedence over the Regulation, 1986. The
said sub-section (8) of Section 400 nowhere asks the Mayor-in-Council to
make a judicial decision or to judge on the factual aspects or points for
decisions as prepared by the department. If there is no such requirement
under sub-section (8) of Section 400 of the Act, 1980, in my considered
view, Mayor-in-Council cannot be required to act as a Judge on the factual
aspects and points for decisions prepared by the department concerned.
42. If we consider the provisions of the KMC Act, 1980 harmoniously, we
shall find that it is the legislative intention that nobody shall erect or
commence to erect any construction or building without having a sanctioned
plan. If that be so, it is not desirable that a person without applying for a
sanctioned plan shall carry on unauthorized construction on a plot of land
and even after he is served with a stop work notice from the KMC
authorities. All such acts of defiance and all contraventions of law are being
sought to be justified by the appellant that as the third proviso to Section
400(1) of KMC Act has been inserted, he deserves a notice of hearing before
the KMC can proceed with any demolition process of his unauthorized
construction. We have already discussed that such proviso and relevant
regulations pertaining thereto are related to minor work or minor erection or
minor deviation from the sanctioned plan etc. In this case there is a massive
29
construction, as rightly pointed out by the learned counsel of the KMC, and,
therefore, this construction of the appellant is not covered by the third
proviso of Section 400(1) of KMC Act, 1980. The Learned Counsel for the
appellant has drawn to our attention the relevant circular of the KMC
authority where unauthorized construction made to the height of 10 meter
to 25 meter are alleged to be retained on payment of retention fees. But
such argument is feeble since under clause 4 of regulation 2015 the
concerned authorities are to consider not only the height of the building but
also several factors which are categorized under the heading terms and
conditions for regularizing such unauthorized construction. Therefore the
height of an unauthorized construction is not the sole factor to be
considered before permitting retention of the unauthorized construction. In
fine, I think there is no apparent infirmity in the relevant judgment and
order passed by the Learned Single Judge in connection with WPO No. 7 of
2023. Considering all the aspects we are inclined to dismiss the present
appeal along with the connected applications. The impugned judgment
passed by the Learned Single Judge is hereby affirmed and the instant
appeal is dismissed with costs assessed at Rs. 50,000/- (Fifty Thousand
Only) to be paid to the KMC within four weeks from date.
(APURBA SINHA RAY, J.)
I agree.
(ARIJIT BANERJEE, J.)
30
Arijit Banerjee, J.:
1. I have had the benefit of going through the judgment authored by my learned Brother. I completely agree with the observations made and conclusion reached by my Brother. However, I take this opportunity of adding a few words of my own.
2. The undisputed facts of the case are that:
(i) The appellant raised a construction without obtaining sanctioned building plan from Kolkata Municipal Corporation (in short 'KMC');
(ii) Stop work notice was issued to the appellant by KMC under Section 401 of the Kolkata Municipal Corporation Act, 1980 (in short 'KMC Act')
(iii) The appellant, in defiance of such stop work notice continued with the construction;
(iv) Since the appellant violated the stop work notice, an FIR has been lodged against him under Section 401(A) of the KMC Act.
3. In the aforesaid factual scenario, KMC took steps against the appellant under Section 400(8) of the KMC Act.
4. One of the arguments advanced by learned Advocate for the appellant is that the provisions of the Transaction of Business of the Mayor-in-Council Regulations 1986, were not adhered to by the respondent authorities. My learned Brother has dealt with the said argument in details and has rightly 31 rejected that contention of the appellant. We had called for the relevant records of the case. KMC produced such records. We have found sufficient compliance with the provisions of the 1986 Regulations.
5. Another point urged on behalf of the appellant was that the facts of this case did not justify invocation of the emergency power under Section 400(8) of the KMC Act. According to the appellant, Section 400(1) of the KMC Act should have been resorted to by KMC. This means that proceedings should have been set in motion permitting the appellant to participate in such proceedings. The appellant contended that had proceedings been initiated under Section 400(1) of the Act, he would have had a right of hearing. According to him, before an order is passed adversely affecting his property rights in the impugned construction, principles of natural justice ought to have been observed by the KMC authorities.
6. My learned Brother has again rightly rejected the aforesaid argument. No doubt, right to property is a valuable right of a citizen. Although it is no more a fundamental right, it is none the less a constitutional right enshrined in Article 300(A) of the Constitution. However, such a right can be claimed by a person only in respect of a construction lawfully made. A building can be lawfully raised only upon obtaining prior permission from the concerned authority, in this case, the KMC.
7. It is not in dispute that the appellant did not bother to obtain any prior sanction from KMC. This makes the entire construction made by the 32 appellant wholly illegal. No property right can be claimed in respect of an illegal construction.
8. It was also argued on behalf of the appellant that there was no such urgency in the matter as would warrant pressing into service of Section 400(8) of the KMC Act. It was submitted that it is nobody's case that the impugned structure is in such a dangerous condition as to be a threat to the safety of the persons in and around that building.
Section 400(8) of the KMC Act reads as follows:-
"400(8) Notwithstanding anything contained in this Chapter, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to a building or a work being carried on in contravention of the provisions of this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith."
Nowhere in the aforesaid provision of law is it mentioned that only when a building is in a dangerous condition, the powers under that provision can be exercised. In my considered opinion, if a person, in defiance of stop work notice issued under Section 401 of the KMC Act, continues with illegal/unauthorized construction, the same would be ground enough for KMC to take action in terms of section 400(8) of the Act.
9. The Kolkata Municipal Corporation Act, 1980, is a regulatory piece of legislation. That statute not only empowers but also imposes an obligation 33 on Kolkata Municipal Corporation to exercise supervisory control over any kind of construction raised by anybody within the territorial limits of KMC. Under the statute, no building or structure apart from a few exceptions spelt out in the Act, can be put up within the Corporation area without prior sanction of KMC. KMC has framed building rules, in accordance with which building plans are sanctioned. The State Legislature has promulgated the 1980 Act, to not only regulate construction of buildings and structures but also to provide civic services in the form of water, drainage, sewerage, collection, removal and disposal of solid waste, fire prevention and fire safety, maintenance of street and public places etc in the municipal area. The rules that KMC lays down, in exercise of power conferred on it under the Act, are statutory rules having the force of law. When a citizen is faced with such a rule, he is obliged to follow the same and not act in violation or derogation thereof. Illegal constructions also have an adverse effect on the environment in general.
10. The emergency power in Section 400(8) of the KMC Act, 1980 has been reserved to the Mayor-in-Council to take immediate action for demolition of a building not only when such unauthorized structure is an imminent threat to the safety and security of life and property around the same but also, in my opinion, when an adamant builder continues with unauthorized/illegal construction, defying stop work notice issued by the civic authority in exercise of statutory power and in discharge of statutory function. If an unscrupulous or recalcitrant builder is permitted to carry on 34 with unauthorized construction with impunity, in violation of stop work notice, an important object of the 1980 Act will be defeated. This cannot be permitted.
11. The incidence of illegal construction has assumed alarming proportions, at least within the territorial limits of KMC. Reckless and unscrupulous persons, having no regard for law and order, construct buildings without obtaining requisite sanction from KMC. Such unauthorized construction not only puts the lives and limbs of people in an around such building at great risk. Such unauthorized construction also jeopardizes the planned development of the City of Kolkata and puts undue pressure on the civic amenities like sewerage etc. Such builders who take law into their own hands must be dealt with strictly. The message - loud and clear - should go out to all and sundry that a construction made in contravention of the applicable building laws and rules, will not be tolerated. Rule of law must prevail at any cost.
12. I therefore find no irregularity or illegality in KMC having taken action against the appellant under Section 400(8) of the KMC Act. I fully agree with my learned Brother that the appeal deserves to be dismissed with costs.
13. Before parting I would like to address another aspect of the matter. In a huge number of cases, we find that a number of floors have been constructed by the person responsible, either without a sanctioned building plan at all, or in substantial deviation from the sanctioned building plan, 35 before KMC initiates demolition proceedings in respect of such unauthorized construction under section 400(1) of the KMC Act, 1980, or takes action under the emergency provision of Section 400(8) of the Act. Obviously such constructions do not come up overnight or within a short span of time. A question naturally arises as to how unauthorized constructions to considerable extents are raised when it is the duty and obligation of KMC to ensure that illegal constructions are nipped in the bud? Is KMC failing to discharge its statutory functions in right earnest?
14. We have seen that KMC takes action, when it does, under the relevant provisions of the KMC Act, in respect of unauthorized constructions, not only upon complaints being lodged by other parties, but also on its own. This would indicate that there are officers in KMC who are assigned the duty of keeping vigil over constructions being made within the territorial limits of KMC and the report to the competent authority if they find any unauthorized construction. The fact that illegal constructions of significant proportions are allowed to be made, before any action is taken, if at all, raises a reasonable doubt in our mind as to the sincerity, efficiency, competence and even integrity of the concerned officers/employees of KMC who are responsible for detecting unauthorized constructions and taking prompt action in respect thereof, in accordance with law.
15. In the light of the aforesaid observations, we direct the Commissioner, KMC, to make necessary enquiry and file a preliminary report before the 36 Registrar, Original Side, of this Court, within 8(eight) weeks from date, clarifying the following issues:
(i) How does KMC monitor the issue of detecting unauthorized construction within its territorial limits? Are officers /employees of KMC designated for that purpose or assigned such duty? If so, how any of them? Full particulars should be furnished.
(ii) If there are such officers/employees of KMC who are given the responsibility of keeping a track of unauthorized constructions being made, what is the explanation for such constructions coming up to the extent of several floors before any action is taken by KMC, if at all?
(iii) To which authority do such officers/employees report in case they come across an unauthorized construction?
(iv) Is there any system/procedure in place to ensure that the officers/employees of KMC entrusted with the duty of detecting unauthorized construction, discharge their duties sincerely and honestly?
(v) Has any action ever been taken by the competent authority in KMC against officers/employees of KMC who are responsible for detecting and taking action in respect of unauthorized construction, for dereliction of their duties? If so, then, what action and to what effect?
16. Although this appeal along with the connected applications are disposed of, the appeal will be listed under the heading "To be mentioned" 9 37 (nine) weeks hence when the Registrar, Original Side, of this Court will place the report of the Commissioner, KMC, before us.
17. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.
(ARIJIT BANERJEE, J.) I agree.
(APURBA SINHA RAY, J.)