JUDGMENT Barin Ghosh, J.: The subject matter of challenge in the instant writ petition appears to be the claim of the Calcutta Municipal Corporation on account of certain minor and technical infringement of Building Rules relating to construction of property belonging to the petitioner. 2. Despite opportunities having been granted, no affidavit-in-opposition has been filed by the Calcutta Municipal Corporation (hereinafter referred to as "the respondent Corporation"). Despite requests made by the Court the learned counsel for the respondent Corporation could not furnish the break up of such charges. The learned counsel for the respondent Corporation also could not inform this Court the basis of the claim of such charges. 3. It is the case of the petitioner in the petition as well as in the supplementary affidavit filed on 26th July, 2001 and not denied by the respondent Corporation that premises No. 5A, Lord Sinha Road, Calcutta, consists of land area measuring about 2 bighas and that the owners thereof, namely, Raj Kumar Jhunjhunwala, Ashok Kumar Jhunjhunwala, Vijoy Kumar Jhunjhunwala and Vinod Kumar Jhunjhunwala, got B.S. Plan No. 20/III dated 25th August, 1981 sanctioned by the respondent Corporation for construction of residential buildings thereon. It is the further case of the petitioner and not denied by the respondent Corporation that the petitioner in 1989 purchased or acquired interest in land comprising of 2 cottahs, 10 chittacks and 26 square feet out of the total land area measuring about 2 bighas at the said premises with right to make construction thereon on the basis of the said plan. It is also the contention of the petitioner and not denied by the respondent Corporation that on 5th May, 1992 the petitioner submitted a revised plan to the respondent Corporation whereby it proposed to convert the residential ground floor with car parking space into shops. It is the case of the petitioner and not denied by the respondent Corporation that the petitioner made construction in accordance with the sanctioned plan bearing B.S. No. 20/III dated 25th August, 1981 and also executed work on the basis of the revised plan so submitted on 5th May, 1992. 4. It appears that subsequent to such construction work was done, the respondent Corporation initiated proceedings under sub-section (1) of section 400 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the said Act"). 4. It appears that subsequent to such construction work was done, the respondent Corporation initiated proceedings under sub-section (1) of section 400 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the said Act"). The said proceeding was concluded by an order dated 30th May, 1994. The said order is as follows: "The P.R. Om Prakash, Killa of M/s. Hallmark Consultants (P) Ltd. is represented by his authorized agent Mr. Amitava Raha. Other persons responsible viz., Raj Kumar Jhunjhunwala, Ashok Kumar Jhunjhunwala, Vijoy Kumar Jhunjhunwala, and Vinod Kumar Jhunjhunwala are represented by their learned Advocate, Uma Roy. Ram Avatar Sharma of 5A, Lord Sinha Road is absent inspite of intimation. The Department is represented by the D.P.S. Heard, considered and perused the case record. Raj Kumar Jhunjhunwala, Ashok Kumar Jhunjhunwala, Vijoy Kumar Jhunjhunwala and Vinod Kumar Jhunjhunwala (hereinafter referred to as the said Jhunjhunwalas) claim to be the owner of Premises No. 5A, Lord Sinha Road and they got a B.S. Plan No. 20/III dt. 25.8.81 for construction of residential building thereon. Subsequently in pursuance of an agreement for sale dt. 9.2.89 the said Jhunjhunwalas on acceptance of Rs. 8,50,000/- (Eight lakh fifty thousand) against the full consideration money of Rs. 9,00,000/- (Nine lakhs) in respect of the demarcated portion of land of the said premises covered by the said B.S. Plan from M/s. Hallmark Consultants (P) Ltd. of 5A, Lord Sinha Road, put the latter in possession of the said land on the same date, i.e., on 9.2.89. The said Jhunjhunwalas by executing a registered power of attorney dt. 9.2.89 appointed M/s. Hallmark Consultants (P) Ltd. and Om Prakash Killa as their constituted attorney empowering them, inter alia, to act on their behalf and .... to sign, execute and submit all papers, application, documents and plans and to do other acts, deeds and things as may be deemed fit and proper etc. In view of the above admitted fact the said M/s. Hallmark Consultants (P) Ltd. has become the owner of the demarcated portion of the said premises covered by the said B.S. Plan, but for registration only, inasmuch as the said M/s. Hallmark Consultants (P) Ltd. on payment of above mentioned consideration money has been put to possession of the said land. The said M/s. Hallmark Consultants (P) Ltd., thereafter, constructed a residential building according to the said B.S. Plan on the demarcated portion of the premises in question on the strength of the authority given to it by the said Jhunjhunwalas. M/s. Hallmark Consultants (P) Ltd. on 5.5.92 submitted 3 sets of plan proposing to convert the residential ground floor to two shops. The allegation against the persons responsible relates to i) RCC walls at ground storey within the sanctioned covered space, ii) projection of 0.5 m. RCC box for elevation in all floors at East and South of the premises, iii) shifting of brick partition wall at 1st floor to 5th floor, iv) erection of brick walls with brick pillars within the compound v) erection of C.I. shed covering the side open space at northern side and vi) car parking, godown and service space have been converted to office. In the precis and the demolition sketch plan attached to the file it has been alleged that the persons responsible have constructed the impugned structures by violating Rules 3, 8 and 41 of Schedule XVI of the C.M. Act, 1951 and section 416 of the C.M.C. Act, 1980. In the precis it has been alleged that Rule 3 has been violated since the width of the street is 12.16m. and the height of the building is 18m. Rule 8 has been violated since no side space has been left. Rule 41 has been violated since the structural stability is unknown. In the precis there is no objection regarding excess consumption of the F.A.R. by the persons responsible. Usually under the new rules no persons is allowed to use car-parking space for any other purpose (illegible). The B.S. Plan in respect of the building in question was sanctioned according to old rules and a portion at the ground storey was being used for residential purpose. Subsequently M/s. Hallmark Consultants (P) Ltd. proposing to convert a residential portion at the ground floor to shops have filed revised plan for sanction, where in a sanctioned building plan a residential portion with car parking space has been allowed according to old rules, conversion of any residential portion at the ground storey including car parking space for changing its user may be allowed. On perusal of the sketch plan and on consideration of the submissions of the parties I am of the opinion that the alleged infringement of rules is minor and technical and such the persons responsible may be condoned and allowed to retain the impugned structure subject to the condition mentioned below. It is, therefore, Ordered That the persons responsible may be allowed to retain the impugned construction on payment of required fees, charges, etc. and subject to filing certificate from a competent person/authority certifying therein the structural stability of the impugned construction all within 60 days from the date of communication of the order, failing which the Department shall demolish the unauthorized structure at the cost of the persons responsible." 5. Thereafter by a letter dated 15th September, 1994 the District Building Surveyor (Borough - 7) made a claim on the petitioner for the fees and charges in terms of the said order dated 30th May, 1994. The relevant portion of the letter dated 15th September, 1994 is as follows: "The encloser will find the final order passed by the Special Officer (Building) on 30.5.94 in respect of the above noted case under section 400 of C.M.C. Act, 1980 and charges as per calculation are as follows: 1. Penalty charges ----- Rs. 13,983.00 2. Fine for change of user ----- Rs. 6,82,560.00 3. Wet work charges ----- Rs. 2,063,00 4. Sk. Fees ----- Rs. 700.00 Rs. 6,99,306.00 (Rupees six lakhs ninety nine thousand three hundred and six only)". 6. At this juncture the petitioner filed the present writ petition disputing the right of the respondent Corporation to make such claim. By way of an interim order this Court restrained the respondent Corporation from demolishing any portion of the construction made by the petitioner provided the petitioner depositing a sum of Rs. 1 lakh with the respondent Corporation. In terms of the said order of this Court the petitioner has deposited the sum of Rs. 1 lakh with the respondent Corporation. 7. 1 lakh with the respondent Corporation. In terms of the said order of this Court the petitioner has deposited the sum of Rs. 1 lakh with the respondent Corporation. 7. Sub-section (1) of section 400 and sub-sections (1), (2) and (4) of section 416 of the Act, which appear to be applicable to the instant case, are as follows: "400.(1) Where the erection of any building or the execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to such person, as may be specified in the order: Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made: Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3). Explanation.–– In this chapter, 'the person at whose instance' shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations if any, or does it by himself. Explanation.–– In this chapter, 'the person at whose instance' shall mean the owner, occupier or any other person who causes the erection of any building or execution of any work to be done, including alterations if any, or does it by himself. 416.(1) No person shall, without "any written permission of the Municipal Commissioner or otherwise than in conformity with the conditions, if any, of such permission–– (a) use or permit to be used for the purpose of human habitation any part of a building not originally erected or authorized to be used for such purpose; (b) change or allow the change of the use of any building for any purpose other than that specified in the sanction under section 396; (c) change or allow the change of the use of any building erected before the commencement of this Act contrary to the use for which such erection was originally sanctioned; (d) convert or allow the conversion of a tenement under a particular occupancy or use group to a tenement under another occupancy or use group: Provided that no such permission shall be given if the new occupancy or use group is otherwise than in conformity with the provisions of this Act or the Rules and the Regulations made thereunder or of any other law in force for the time being. (2) If, in any case, such permission is given, no change of occupancy or use group shall be allowed before any necessary alterations or provisions have been made to the satisfaction of the Municipal Commissioner and in accordance with the provisions of this Act or the Rules and the Regulations made thereunder or of any other law in force for the time being. (4) Notwithstanding any other action that may be taken against any person whether owner or occupier or both, contravening any provision of this section, the Municipal Commissioner may levy on such person in accordance with such scale as may be determined by regulations a fine not exceeding in each case rupees one hundred per square meter per month for the area under unauthorized use throughout the period during which such contravention continues." 8. Where as sub-section (1) of section 400 of the Act authorizes demolition of erection of any building or the execution of any work which has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 396 or in contravention of the provisions of the Act or the Rules and Regulations made thereunder, the same does not expressly authorizes the Corporation to condone such erection or execution of work or to regularize the same; but sub-section (1) of Section 416, however, specifically authorizes the Corporation to permit change of user of a building. Similarly neither sub-section (1) of section 400, nor any other sub-section contained in section 400 of the Act authorize the Corporation to levy any fine or penalty or charges or damages for erection of any building or execution of any work without or contrary to the sanction or in contravention of the provisions of the Act or the Rules or Regulations made thereunder; but sub-section (4) of section 416 specifically authorizes the Corporation to levy and recover a fine if there has been an unauthorised user of the building in question. Chapter 38 of the Act deals with offences and penalties. None of the sections contained in the said Chapter, however, imposes any penalty for erection of any building or the execution of any work without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of the Act. Although sub-section (1) of section 400 of the Act authorizes demolition or erection of any building, or execution of any work without or contrary to the sanction or in contravention of the provisions of the Act or the Rules and Regulations made thereunder but while conferring such power the legislature has consciously used the expression "may" and not "shall". Therefore, legislature has consciously conferred discretion upon the respondent Corporation in the matter of demolishing the erection of the building or execution of the work which has been commenced or is being carried on or has been completed without or contrary to the sanction referred to in section 396 or in contravention of any of the provisions of the Act or the Rules and Regulations made thereunder. This is because a small infraction of the sanction will be contrary to the sanction and similarly a slight infraction of the Building Rules and Regulations made under the Act would be in contravention of such Rules and Regulations entailing demolition. Having regard to the fact that while a construction is being made there may be minor and insignificant infraction of the sanction or of the Rules and Regulations, the legislature has expressly conferred a discretion upon the respondent Corporation to permit retention of such construction but for that has not authorized the Corporation to claim either any fees or any penalty or any fine. The respondent Corporation being a statutory Corporation can act only within the four corners of the statute by which it has been constituted as well as the Rules and Regulations framed thereunder and cannot act in a manner beyond. The respondent Corporation may also act in the manner it has been authorized to act by some other statute or Rules and Regulations framed thereunder but my attention has not been drawn to any Act or Rules or Regulations which authorize the Corporation to levy a fee or fine or penalty as a condition for retaining minor or insignificant infringement of the sanction or of the Act or of the provisions of the Building Rules and the Rules and Regulations made under the Act. 9. The learned counsel appearing on behalf of the respondent Corporation has drawn my attention to a judgment of a learned Single Judge of this Court delivered in the case of Land and Bricks and Entertainments Ltd. vs. State of West Bengal, reported in AIR 1992 Cal 117 , wherein the learned Judge has observed that the 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 the discretion vested in the respondent Corporation under section 400(1) of the Act. By placing reliance upon the said judgment it was sought to be submitted on behalf of the respondent Corporation that in order to permit an unauthorized construction fees at penal rate may be claimed, I do not think that is the ratio of the judgment. The learned Judge did not address himself to the question whether such fee can at all be charged. The learned Judge did not address himself to the question whether such fee can at all be charged. The facts of that case would show that the petitioner therein indulged uncertain building activities without the required sanction, yet contended that such activities would not contravene any of the Building Rules and accordingly should be permitted to be retained upon payment of penalties. The learned Judge while dealing with the case referred to a circular of the Municipal Commissioner wherein it was clarified that section 400 of the Act contains no provision for authorizing an offending construction to be completed on submission of a fresh plan and on payment of fee at penal rate and accordingly the Governor has been pleased to invoke the provisions of section 15 of the Act so as to order that the practice of regularizing illegal construction on payment of fee at a penal rate should be discontinued. The learned Judge thus proceeded as if the Act permits payment of fee at a penal rate when the same in fact, does not permit. In view of the said decision of the Government the learned Judge held that if a building is otherwise found to be fit for demolition, at 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 therefore to the Municipal Authorities. 10. Judgment of yet another learned Judge in WO Brothers vs. Commissioner of Corporation of Calcutta, reported in ILR 1977 Calcutta 1, was cited by the learned counsel for the respondent Corporation for the self-same proposition. The said judgment is a judgment on Calcutta Municipal Act, 1951 and has no application in so far as the matter in hand is concerned, inasmuch as while repealing the Calcutta Municipal Act, 1951 by section 635 of the Act, none of the provisions of the Calcutta Municipal Act, 1951 upon which the said decision is founded had been kept alive. 11. The proceeding under sub-section (1) of section 400 of the Act came to an end on pronouncement of the order dated 30th May, 1994. By that order minor and technical infringement of the rules were condoned in exercise of discretion vested in the respondent Corporation by sub-section (1) of section 400 of the Act. 11. The proceeding under sub-section (1) of section 400 of the Act came to an end on pronouncement of the order dated 30th May, 1994. By that order minor and technical infringement of the rules were condoned in exercise of discretion vested in the respondent Corporation by sub-section (1) of section 400 of the Act. In addition to that the revision of the plan to permit conversion of the residential portion on the ground floor and the car parking space into shops was allowed. There was no finding that the ground floor was used as shop and not as residential building until 30th May, 1994. There is also no finding what was the area of the ground floor, which was proposed to be converted into shops. Admittedly on 5th May, 1992 permission was asked for converting the ground floor into shops. Assuming on that date it was so converted, until 30th May, 1994 at the best for 24 months there had been an unauthorized user of the area in question. There is no dispute that the area in question is situated only on the ground floor, i.e., residential part on the ground floor and car parking space on the ground floor. If it is assumed that the entire area on the ground floor, i.e., 2 cottahs, 10 chittacks and 26 square feet was involved in such unauthorized use, at the best the fine could be of Rs. 4,80,000/- in terms of the provisions contained in sub-section (4) of section 416 of the Act for 24 months. Be that as it may, there being no finding at all that in fact, there had been unauthorized use of the property in question, the question of levy of any fine in terms of sub-section (4) of section 416 of the Act did never arise. Furthermore, though the outer limit of fine is Rs. 100 per square meter, but such fine is required to be imposed by making regulation. Whether any regulation has been made to that effect is not known, as no such regulation was produced. 12. The learned counsel for the respondent Corporation as aforesaid has not drawn my attention to any provision of the law which authorize the Corporation to claim wet work charges or for sketch fees. Whether any regulation has been made to that effect is not known, as no such regulation was produced. 12. The learned counsel for the respondent Corporation as aforesaid has not drawn my attention to any provision of the law which authorize the Corporation to claim wet work charges or for sketch fees. Accordingly the writ petition is allowed and it is declare that the petitioner is not obliged to pay any of the charges claimed by the letter dated 15th September, 1994 as set out above. 13. The petitioner, as aforesaid, has paid a sum of Rs. 1 lakh to the respondent Corporation in terms of an order of this Court. It was not contended before me that the said payment was made by the petitioner without prejudice to its rights and contentions in the writ petition. In the supplementary affidavit, which was filed by the petitioner subsequent to payment of the sum of Rs. 1 lakh, there is no claim for refund. Further in the petition itself the petitioner proceeded on the basis that it has some liability towards the respondent Corporation, but that is not as high as has been claimed. In that view of the matter, I declare that the sum of Rs. 1 lakh already paid by the petitioner is not refundable by the Corporation. 14. This disposes of the writ petition. Let urgent xeroxed certified copy of this judgment, if applied for, be handed over to the learned counsel for the parties on the usual undertaking. Writ petition allowed.