Judgement ORDER :- This is a writ application seeking to challenge a Circular dated 19th December, 1988 appearing at page 143 of the writ petition. The text of the Circular is as follows : "The Calcutta Municipal Corporation Central Municipal Office Bldgs., Municipal Commissioners Office Dated, Calcutta, the 19th Dec. 1988 Circular No. 20 of 1988-89 ORDER The Government having been satisfied that the Calcutta Municipal Corporation Act, 1980 contains no provision for relaxation in its S. 400 authorising an offending construc­tion to be completed on submission of a fresh plan and on payment of a fee at penal rate, the Governor has been pleased to invoke the provision of S. 15 of the said Act so as to order that the practice of regularising illegal construction on payment of a fee at a penal rate should be discontinued (sic). The order of the Government is brought to the notice of the Hearing Officer (Building) and other Officers/Department dealing with and/or who may deal with cases of un­authorised construction of building for their guidance and complying with Government order. Municipal Commissioner To Hearing Officer (Building) Officers/Department dealing with unauthorised constructions." 2. The case on facts of the writ petitioners is that there was an earlier writ in this Court and the same was withdrawn on a certain understanding being reached as between the writ petitioners and the Municipal Authorities. The Municipal authorities have denied that there was any such final or binding understanding. 3. The allegation of the writ petitioners is that though certain building Activities have been carried on by them without the required sanction under the Municipal Laws yet none of these activities would contravene any of the building Rules, and as such if they had had a sanction to that effect, these building activi­ties could not be complained of in any manner. 4. From pages 124 to 127 of the writ petition certain documents are annexed in support of the contention of the writ peti­tioners that a definite understanding was reached with the Municipal Authorities for regularisation of the building which had been partially constructed without a sanctioned plan. Without going into details I might say that there was included, amongst others, an understanding that the plan case would be regularised on payment of penal fees to the Corporation. 5. The aforesaid circular that I have set out also mentions and contemplates such penal fees. 6. Without going into details I might say that there was included, amongst others, an understanding that the plan case would be regularised on payment of penal fees to the Corporation. 5. The aforesaid circular that I have set out also mentions and contemplates such penal fees. 6. Apart from the question of penal fees the petitioners undertook, according to them, before the Municipal Corporation, not to carry out construction of any kind till disposal of the plan matter, to pay Guard posting charges etc. These other conditions are in no way relevant for disposal of the matter before me. 7. The said earlier writ was withdrawn on the 21st of July, 1988 and the terms of withdrawal appear from the short copy minutes included at page 128 of the Anne­xures to the writ petition. 8. The alleged undertakings and a pay­ment of Rs. 19,200/- on the part of the writ petitioners appear to have been given and made just after the withdrawal of the earlier writ and the same will appear from the aforesaid pages 124 to 127 of the Annexures to the writ petition as I have mentioned earlier. 9. The submission of the writ petitioner before me is that the finalization of the plan case was substantially affected by the intro­duction of the said Circular dated 19th December, 1988. Since the said Circular pro­hibited the regularization of illegal construc­tion on payment of a fee at a penal rate the structure of the undertaking and arrangement arrived at according to the writ petitioner was not left in the same position as it was prior thereto. The writ petitioners were not left in the same position as was prior to the issuance of the said Circular. 10. On this aforesaid basis the writ peti­tioner has in reality prayed for two reliefs : 11. First the writ petitioners state that they should be permitted to participate in the plan case proceeding; and Secondly the writ petitioners state that it should be declared that u/S. 400(1) of the Calcutta Municipal Act, 1980 the Municipal Commissioner and the Municipal Authorities have a wide discretion, which includes the discretion to regularise a plan case on accept­ance of fees at a penal rate. 12-13. 12-13. In so far as the question of partici­pation in the pending plan case is con­cerned, the writ petitioners have raised a further plea that they would be willing to participate in such proceedings before any authority but not the Special Officer who has been appointed by delegation by the Munici­pal Commissioner. The writ petitioners state that the Special Officer so delegated would not be a proper authority in the instant case and the grounds thereof are mentioned in paragraphs 84 to 88 of the writ petition. Before entering into the main question of the legality of imposition of penal rates I might dispose of this preliminary question briefly by stating that no allegation in the writ petition is so sufficient as for me to set aside the order of the delegation passed by the Municipal Commissioner in favour of the said Special Officer. It appears that the said Special Officer once refused an adjournment to the writ petitioners. That in my opinion it is quite inadequate for passing an order of removal of the Special Officer from the delegated office wherein he has been asked by the Municipal Commissioner to look into the plan case of the writ petitioner. 14. The Municipal Authorities have urged before me that sufficient notice was given to the writ petitioners to show cause why the plan case should not be decided against them and why demolition should not be ordered. It is a further case of the respon­dent-Corporation that the writ petitioners failed in their duty of showing such cause and accordingly the Municipal Authorities were within their powers to pass a demolition order; but the same even if passed ex parte, has not been published because of the interim order passed in this proceeding. However, since no demolition order has actually been passed and since the matter of imposition of penal rates is being gone into by me I think that on the basis of the lines that I indicate below the Special Officer should give a chance of adequate hearing to the writ petitioners and thereafter pass a reasoned order in respect of the construction of the writ peti­tioners already made, and in respect of the construction proposed to be made by the writ petitioners. 15. Now for the main issue of payment of fee at penal rate. It has been urged by Mr. 15. Now for the main issue of payment of fee at penal rate. It has been urged by Mr. Ghosh and thereafter in his absence by Mr. Mukherjee on behalf of the writ petitioners before me that u/S. 115 of the said 1980 Act no direction can be passed in regard to fettering the discretion of the Commissioner vested in him u/S. 400(1) of the very same Act. I do not find that the issue of the power of the State Government u/S. 115 arises at all. This is because, even if the State Government did not have power to direct non-acceptance of fees at penal rate, yet, if the Municipal Authorities decide not to accept fee at a penal rate correctly, in accordance with the provi­sions of the said 1980 Act correctly read as a whole, the Municipal Authorities would be doing something right, may be at the behest of some authority which does not strictly have the power to direct the doing of such correct actions. Holding otherwise would lead to anomalies. Let us suppose that a certain authority unofficially directs another auth­ority to act in a certain way which happens to be the correct legal way for that latter authority. 16. Would it be held under such circum­stances that the said latter authority will be prevented from acting in that correct way because of the officious or extra-jurisdic­tional directions of the first authority ? Surely not, because every authority is bound to act within the jurisdiction and within the legal limits of its own prescribed power irrespective of the directions or orders as are addressed to it by other third parties or authorities. 17. The issue, therefore, resolves itself into this, whether the Municipal Authorities have a power to regularize illegal construction on payment of fee at a penal rate. 18. Under Section 400(1) of the 1980 Act the Municipal Commissioner has indeed a wide discretion vested in the matter of order of demolition of a particular structure. Such demolition may be ordered in case the struc­ture has been built without a sanction or in case the structure has been built in violation of certain building Rules. These building Rules again may or may not be of a relexable or irrelaxable character. 19. Such demolition may be ordered in case the struc­ture has been built without a sanction or in case the structure has been built in violation of certain building Rules. These building Rules again may or may not be of a relexable or irrelaxable character. 19. The question came up before a Divi­sion Bench of this Court and the decision there in the case of Purusottom Lalji is reported in AIR 1972 Calcutta Page 459. In so far as my reading of the said case goes and in so far as the same is applicable to the case in hand, I think it was decided that the Muni­cipal Commissioner does have a discretion in the matter of ordering or not ordering demoli­tion of buildings which are not exactly in accordance with the statute. Further, the said decision, again so far as my reading goes, holds to this effect that the said discretion of the Municipal Commissioner can be used even in cases of irrelexable building Rules. For example, where such violation of irrelax­able building Rules is of a minor nature or is not likely to be prejudicial or harmful or dangerous to any person or party involved. Support for the latter proposition has also, in my opinion, been correctly drawn on behalf of the writ petitioners from the case of M/s. Rajatha Enterprise reported in AIR 1989 SC 860 . The writ petitioners, in my opinion, have also correctly relied on the case of Commis­sioner of Corporation of Calcutta v. Sailen­dra Nath Banerjee reported in 1977 (2) CLJ 505 where the powers of both the Com­missioner and the Appellate Authority have been described as quasi judicial and the existing discretion in the matter of ordering or not ordering demolition has been further affirmed. 20. However, in the said above case of Purusottom Lalji, in para 5 it has been held by Justice Sabyasachi Mukharji to this effect that the discretion regarding the demolition or relaxation thereof must be used bona fide and not on any extraneous ground. 21. I think that the extraction or even acceptance of fees at a penal rate as a pre­condition or as a consideration for not order­ing demolition is an extraneous consideration for exercise of that discretion. The Municipal Acts are designed primarily for regular and orderly building activities. They are also designed for promoting the causes of health and sanitation. 21. I think that the extraction or even acceptance of fees at a penal rate as a pre­condition or as a consideration for not order­ing demolition is an extraneous consideration for exercise of that discretion. The Municipal Acts are designed primarily for regular and orderly building activities. They are also designed for promoting the causes of health and sanitation. If a building is otherwise seen to be fit for demolition in the discretion of the Municipal Commissioner it would be ab­solutely unjust to permit the said building to remain merely because the builder has offered to pay penal fees therefor to the Municipal Authorities. The causes of planned building or safety or health or sanitation cannot be discarded for the cause of money and, in fact, the question of money does not enter into the consideration of these questions at all. The Municipal rates that are to be collected by the Municipal Authorities are quite a different matter. The Finances of the Municipal Auth­orities have no connection with the other duties of the Municipal Authorities which are the above i.e., which are comprised in the general body of duties to see to public welfare in the matter of building, sanitation and the like. 22. In this view of the matter, I have no hesitation in holding that the impugned Circular dated 19th December, 1988, at page 143, in so far as it adopts for the Municipal Authorities the general rule that an illegal construction is not to be regularized on payment of a fee at a penal rate, is perfectly good and the adoption of this general rule is legal, healthy and proper for the Municipal Authorities. 23. The question then remains as to what is to be done to the building of the writ petitioners or the regularization of the writ petitioners building plans or the proposal of the writ petitioners to carry on with their building activities in future ? It does not, in my opinion, follow as a corollary from the order at page 143 that the case must be decided against the writ petitioners although, accord­ing to the writ petitioners, in the undertaking and the proposal for regularisation the writ petitioners were agreeable to offer a fee at a penal rate. It does not, in my opinion, follow as a corollary from the order at page 143 that the case must be decided against the writ petitioners although, accord­ing to the writ petitioners, in the undertaking and the proposal for regularisation the writ petitioners were agreeable to offer a fee at a penal rate. The said offer of penal rates cannot so taint the hands of the writ peti­tioners as to call for an immediate Municipal order against the writ petitioners on that ground alone. About the decision at the material time of an offer or an undertaking, or an arrangement for payment of penal rates, (if offer, undertaking or arrangement there was) I might say, the position in this regard was not quite clear. There was, to the best of my knowledge, no binding authority (which could guide the Municipal Authorities at that time) pronounced by any Court of law on which the Municipal Authorities were bound to act, or which gave a final decision at that time on the question of a fee at a penal rate for regularization of illegal construction. Now, that I have held such regularization on pay­ment of penal fee to be contrary to the spirit and provisions of the Act, and to be outside the powers of the Municipal Corporation, the case of the writ petitioners must be considered afresh. In such fresh consideration the previ­ous cloud cast upon the case with regard to the offer of payment of fee at a penal rate, and discontinuance by public order dated 19th December 1988 of acceptance of such penal fee, are to be kept wholly out of consideration by the Special Officer on delegation in the instant case. 24. The Special Officer on delegation shall therefore within a month hereof hear and pass a reasoned order with regard to the following questions : (a) Question of demolition of the structures already put up by the writ petitioners; (b) The question of regularization of the building plans of the writ petitioners; but in this regard the question of offer or levy or acceptance of fee at a penal rate is to be kept strictly out of consideration. (c) The question of future proposed build­ing activities of the writ petitioners on the piece of land in question. 25. (c) The question of future proposed build­ing activities of the writ petitioners on the piece of land in question. 25. I have no doubt, in my opinion, that the Special Officer on delegation shall afford the writ petitioners an adequate opportunity for representating their case in the above regard and, therefore, I do not pass any particular order in that respect and leave the matter of procedure in the hands of the Special Officer himself. The reasoned written order shall be communicated by the Special Officer to the parties concerned as soon as the same is made. After the publication of the recommendation/order of the Special Officer, the same shall be duly considered by the Municipal Commissioner and a reasoned order in respect of such consideration shall be passed by the Municipal Commissioner within four weeks of receipt of the recom­mendation or the order of the Special Officer. In case the Municipal Commissioner thinks fit, an opportunity of hearing shall be afforded to the writ petitioners, if their interests are in any way sought to be affected adversely by the proposed order of the Municipal Commissioner. The order of the Municipal Commissioner shall be published as soon as it is made and served on the parties concerned, in any event not later than three months from date. 26. Until the order of the Municipal Commissioner the writ petitioners should not carry on any further construction and should maintain status quo in that regard. I do not think that any demolition or other such activity should he undertaken by the Muni­cipal Authority until the Municipal Com­missioner has finalized the matter in the above way; I do not think in so far as the public bodies are concerned, any particular order or injunction to that effect is at all needed. After the order of Municipal Com­missioner is passed, published and received, the writ petitioners shall be free to continue with their building activities in accordance With the said order or take any step in relation thereto, including acceptance of or challeng­ing the said order, as the writ petitioners might be entitled to in law. I do not think that in view of the uncertain situation which had prevailed previously any order for costs should be made in this matter. 27. This matter is disposed of accord­ingly. 28. I do not think that in view of the uncertain situation which had prevailed previously any order for costs should be made in this matter. 27. This matter is disposed of accord­ingly. 28. All parties concerned to act on a signed xeroxed copy of this judgment to be supplied to them upon payment of requisite charges by each of them and upon the usual undertaking on behalf of the petitioners to have this order drawn up, completed and filed. Order accordingly.