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The learned Advocate appearing for the Kolkata Municipal Corporation unhesitatingly adopts the submission of the private respondent so far as the power of discretion vested upon the Municipal Commissioner and the power to impose penal fees to regularize the said unauthorized construction are concerned. Additionally the learned Advocate submits that the Special Officer (Building) recorded the deviation made from the sanctioned plan and have allowed the retention thereof, as the private respondent, a society, have started a medical clinic at the said premises with the pious intention to serve the public at large.

Section 396 of the said Act relates to the sanction of the erection of a building or the execution of work by the Municipal Commissioner with the approval of the Mayor-in-Council in case any building except residential building, proposed to be erected or re-erected on a plot of 500 sq.mt or less of land or building. In exercise of the Rule making powers under the Act, the Kolkata Municipal Corporation Building Rules, 1990 is framed and came into effect on and from 12th December, 1990. The said Rules contains an exhaustive provisions relating to sanction, refusal, cancellation, commencement of work, deviation during the execution of work, notice of completion and the occupancies certificate apart from other related provisions. Chapter IX of the said rules relates to the open spaces required to be maintained in respect of any building allowed to be erected. Any deviation and/or infraction of the rules providing mandatory spaces to be maintained would attract the penal provision and the Municipal Commissioner may in addition to any other action under the said Act, make an order for demolition of such erection. Deviation of every description does not invite the Municipal Commissioner to order for demolition and sufficient safeguard is made under Rule 25 of the said Rules. Sub-rule 1 of Rule 25 contains a negative word that no deviation from a sanctioned plan shall be made during erection or execution of any work. However, Sub-Section 2 permits the internal alteration within the sanctioned cover space as well as any external deviation beyond the sanctioned cover space which in either case does not violate the provisions of the Act or the Rules made thereunder. Clause 'a' of Sub-Rule 2 of Rule 25 relates to an internal alteration within the sanctioned cover space which does not violate the provisions of the Act or the Rules; provided an information to the Municipal Commissioner by notice in writing along with the certificate from architecture or license building surveyor incorporating the deviation and structural calculation together with the statement relating to the nature and purpose of such deviation is given at least 15 days prior to carrying out such erection and execution of work. Clause 'b' thereof relates to an external deviation beyond the sanctioned cover space which does not violate the provisions of the Act or the Rules requires the submissions of a revised plan incorporating the deviation for obtaining necessary action. Clause 3, however, declares that in absence of any notice under Clause 'a' or the sanctioned of the revised plan under Clause 'b', any such erection or execution of work shall be deemed in contravention to the provisions of Act and the Rules.

From the conjoint reading of the aforesaid provisions no building shall be allowed to be erected unless a plan is sanctioned by the Corporation and, therefore, erection or execution of work without the sanctioned plan violates the provisions of the Act as well as the Building Rules. Any deviation either externally or internally is also not permissible except under Clause 'a' & 'b' of Sub-Rule 2 of Rule 25 is complied with and necessary permission and/or sanction is given by the Municipal Commissioner. The violation of Chapter IX of the said Rules, which contains the provisions relating to the open spaces, would attract the penal consequences under Section 400 (1) of the said Act. The object behind incorporation of Sub Rule 2 of Rule 25 is to allow such deviation which is not of serious in nature and does not offends the public at large. The aforesaid proposition can be fortified from the observation of the Special Bench in case of Purusotam Lalji (supra) in these words:

The private respondent admits to have violated the aforesaid rules which could be deciphered from the recording made by the Special Officer in the following:

"The case of the P.R. is that the allegation is undisputed. Retention of the unauthorised construction and regularisation of unauthorised change of use were prayed for."

Admittedly an application was sanctioned by the Municipal Authority in the year 1972 for construction of the two storied building. The Special Officer himself observed that an unauthorized construction is made within the sanctioned area thereby attracting the provisions contained under Clause 'a' of Sub Rule 2 of Rule 25 of the Building Rules. Such deviation can be allowed to be retained provided the provisions contained therein are strictly followed. The special officer (building) in absence of any such application could not have decided the matter on sympathetic and humanitarian ground as the same is opposed to the declaration of law made by the Supreme Court in case of Dipak Kumar Mukherjee (supra). It would be convenient to quote Paragraph 26 & 27 of the said report which reads thus: