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The Division Bench held that a person authorized to erect a building in accordance with sanction, who erected a building in deviation of sanction or contrary to sanction had no right to the property erected in deviation of sanction and/or contrary to sanction by Section 400(8). Under Section 400(8) of the Act, directions could be issued to demolish such portion of the erection over which there was no right to property.

In Ramavtar Agarwal & Ors. vs. Corporation of Calcutta & Ors. reported in AIR 1982 Cal. 314, a Division Bench of this Court held that grant of relief under Article 226 was discretionary. Nobody could claim relief under Article 226 as a matter of right. Occupier of unauthorized structures could neither claim infringement of fundamental right to carry on business, nor any right to property unauthorizedly erected. Against the judgment and order of the Division Bench, there was an appeal. The appeal was dismissed by the Supreme Court by a judgment and order dated 20 th August, 1996 in Ramavatar Agarwal vs. Corporation of Calcutta & Ors. reported in (1999) 6 SCC 532.

The condition precedent for exercise of power under Section 400 (8) is formation 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 the 1980 Act. The construction may forthwith be demolished for reasons to be recorded in writing. For formation of opinion of the necessity of immediate action, it is not necessary that the building should be unsafe or dilapidated.

Any construction without sanction has to be deemed unsafe as sanction is granted after examining structural safety aspects and after clearance from the fire services authorities. Section 400 contemplates action in all cases of unauthorized construction, be it unauthorized construction in contravention of the applicable building rules, be it commencement of construction without sanction of building plan or be it deviation from sanction.

Rule 26(2) of the Kolkata Municipal Corporation (Building) Rules, 2009 provides for regularization of deviations upon payment of penalty.

Rule 26(2) is set out hereinbelow for convenience:

"26. Deviation during execution of works.--(1) No deviation from the sanctioned plan shall be made during erection or execution of any work.

(2) Notwithstanding anything contained in sub-rule (1)--

(a) if during erection or execution of work any internal alteration within the sanctioned covered space which does not violate the provisions of the Act or these rules is intended to be made, the person referred to in sub-rule (1) of rule 4 shall inform the Municipal Commissioner by notice in wiring along with a certificate from the Architect or the Licensed Building Surveyor and Structural Engineer, as the case may be, together with drawings incorporating the deviations, and structural calculation in case of structural deviations, stating the nature and purpose of such deviations at least fifteen days prior to carrying out such erection or execution of work and may thereafter proceed with the execution of such work, subject to the condition that such deviations shall be incorporated in the "Completion Plans" under sub-rule (2) of rule 27;

Power to regularize an unauthorized construction is wholly discretionary. In any case, contravention of mandatory provisions of statute and major deviations cannot be regularized. For example, infringement of a mandatory open space required to be maintained can never be regularized. What may be regularized is an unintentional deviation, minor and/or trivial in nature.

For exercise of the power of regularization, the authorities concerned would have to examine if the building could have been sanctioned, had the deviations been indicated in the application for sanction of the building plan. For example, where sanction of building plan is sought, showing a 10 feet wide open side space, which is in excess of 6 feet required under the applicable Rules, deviations during construction which infringe into the open space may be regularized, subject to payment of fine, provided the minimum mandatory open space required as per the Rules is maintained. In no circumstances, can construction without sanction be regularized, such construction being contrary to statute.