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In support of the contention that the Municipal Commissioner can regularize the unauthorized construction upon payment of the requisite fees, reliance is placed upon a judgment of this Court in case of ABL International Ltd. & ors. -vs- Kolkata Municipal Corporation & ors. reported in 2006 (4) CHN 499.

Mr. Dutta, the learned Advocate appearing for the private respondent in his usual fairness submits that the Co-ordinate Bench which delivered a judgment in case of ABL International Ltd.(supra) did not notice the earlier co-ordinate Bench decision rendered in case of M/s Land & Bricks & Entertainments Ltd. & Anr. -vs- State of West Bengal & Ors; reported in 1991 (2) CLJ 217 wherein it is held that regularization of an illegal construction on payment of penal fee is contrary to the provisions of the Act and is beyond the competence of the Municipal Commissioner. Lastly it is submitted that the order cannot be said to have been passed on extraneous consideration, as the Special Officer (Building) has assigned the reasons for regularization of the unauthorized construction as well as the change of user and, therefore, the writ petition is not entertainable.

There is no difficulty in arriving at the conclusion that the discretion is vested upon the Municipal Commissioner to make an order for demolition of an unauthorized and/or illegal construction as well as not to pass an order for demolition but such discretion is to be exercised if the other relevant provisions are strictly adhere to namely Rule 25 (2) of the said Act as held in Dipak Kumar Mukherjee (supra) In ABL International Ltd. (supra), the point in issue was whether the bill of charges and/or fees could be imposed as a condition for retention of an unauthorized construction and not the order of retention passed by the Special Officer (Building). The order levying the fees and the charges was assailed as the same cannot be demanded on the basis of the schedule of fees, charges notified of the year 2005 - 2006 when the unauthorized construction was regularized on 18 February, 2003. The Corporation pre-agreed that the fees and charges should be charged on the basis of schedule notified for the year 2002-2003. In the above perspective, it was held:

27. In our view, Respondent 7 cannot take benefit of Rule 25 because the disputed construction was in clear violation of the sanctioned plan and the notices issued by the competent authority of the Corporation and also because the application was made after completion of the construction.""

There is no provision under the Act which permits the Municipal Commissioner to regularize the unauthorized construction upon payment of requisite fees and charges. Section 413 A of the Act which is introduced by Kolkata Municipal Corporation (Amendment Act, 1996) permits the regularization on payment of requisite fees and charges on an application having made in prescribed form. The said provision is restricted to the buildings where construction is made by the person displaced from East Pakistan (Now Bangladesh) or by their successor-in- interest on lands occupied by such persons, if completed and/or before the commencement of the said amended Act. The aforesaid provision is restricted to a special class of a person and cannot be applied in general. By no stretch of imagination, it could be conceived that the Special Officer (Building) can direct the regularization of an unauthorized and illegal constructions upon payment of the requisite fees and charges neither the Act nor the Building Rules contains any such power. The action of the Special Officer (Building) is not only arbitrary but is an excess and derogation of the powers conferred by the statute. The statutory authorities are supposed to act within the precincts of law and cannot travel beyond it. The aforesaid propostion can be fortified from a recent judgment delivered by this Court in case of Kalipada Das & Ors.

Since this Court finds that the power to regularize the unauthorized and illegal constructions are beyond the competence of the Municipal Commissioner or the Special Officer (Buildings), the ancillary point relating to regularization of the change of user has become academic and, therefore, does not require any deliberation thereupon.

The order impugned is, therefore, quashed and set aside. The Municipal Commissioner is directed to take immediate steps for demolition of the unauthorised and/or illegal constructions within three months from the date of the order. The Municipalities further directed to refund the charges and/or fees received on the basis of the impugned order to regularize the unauthorized construction together with an interest @ 10% per annum reckoning from the date of receiving the said amount till its payment.