Judgment :- (1) In Re: W.P. No.117 of 2009 This writ petition has been filed by the petitioners praying for an Order commanding upon the respondents Kolkata Municipal Corporation to rescind the purported Notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the Act) as well as for rescinding the Order passed under Section 400 (8) of the said Act pertaining to the premises situated at 35/1A, Garcha Road, Kolkata-19 (hereinafter referred to as the said premises). The petitioners have also prayed for an Order prohibiting the respondents from demolishing any portion or part of the said premises and to act in accordance with its own recommendations dated 16.12.2008 as contained in Annexure-P1. (2) The short facts which have been gathered from the pleadings as well as from the submissions of the Parties are that the said Premises situated on 2 Katthas and 3 Chhataks of land, were inherited by the petitioners from their parents. The building was old and therefore the petitioners filed a Plan for renovation. Being old and above 65 years of age, they also applied for permission for installing a lift. Permission was granted on 14.11.2006. The total constructed area was 3200 Sq. ft. and instead of making a tiled roof, they made a pukka construction by which the area increased to about 300 sq. ft, and as a result thereof, the total area increased to 3500 sq.ft. According to the petitioners, the permissible F.A.R. in respect of the said premises is about 3800 sq. ft. and therefore, the constructed area of 3500 sq. ft. is even less than the permissible F.A.R. (3) On 16.12.2008, the petitioners filed a representation before the Mayor praying for regularisation of this additional area and stated that they were ready to pay the necessary fees therefor as well as penalty. On the same day, i.e. on 16.12.2008, the Mayor-in-Council (Building) made an endorsement thereon directing the Deputy Chief Engineer to proceed under Section 400 (1) of the said Act. The said letter dated 16.12.2008 along with the aforementioned endorsement of the Mayor-in-Council is Annexure- P1 to the writ petition. (4) According to the petitioners, on 12.2.2009, some persons describing themselves to be Officers of the Corporation came upon the premises along with a large contingent of police force and started demolishing portions on the top floor without any Notice. The said letter dated 16.12.2008 along with the aforementioned endorsement of the Mayor-in-Council is Annexure- P1 to the writ petition. (4) According to the petitioners, on 12.2.2009, some persons describing themselves to be Officers of the Corporation came upon the premises along with a large contingent of police force and started demolishing portions on the top floor without any Notice. They disclosed that some complaints had been received that unauthorised constructions were being made and on the basis of such complaints, the Mayor-in- Council (Building) (respondent No.1) had passed an Order under the provisions of Section 400(8) directing the demolition of the said premises. However, no such Order was given to the petitioners. (5) According to the petitioners, the respondents had never inspected the premises prior to the issuance of such an Order and in the background of the Order/endorsement of the Mayor-in-Council dated 16.12.2008 to proceed under Section 400 (1) of the said Act, a subsequent Order under Section 400 (8) was uncalled for. (5) According to the petitioners, the respondents had never inspected the premises prior to the issuance of such an Order and in the background of the Order/endorsement of the Mayor-in-Council dated 16.12.2008 to proceed under Section 400 (1) of the said Act, a subsequent Order under Section 400 (8) was uncalled for. Section 400(1) and Section 400(8) read 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 there for 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 or additions if any, or does it by himself." "400(8)-Notwithstanding anything contained in this chapter, if the Mayor-in-Council is 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 this Act, it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith." (6) According to the petitioners, the aforementioned provision under Section 400 (8) empowers the respondent No.1 to pass an Order only when an immediate action is called for. According to the learned Counsel for the petitioners, the exercise of this power must be supported by a sound reason calling for action to be taken under this provision but it cannot be resorted to in a routine and mechanical manner. The Mayor-in-Council was required to look into these circumstances and when action was already taken under Section 400(1), it was not at all fair on the part of the respondents to have proceeded under Section 400(8). The petitioners have therefore submitted that the action taken under Section 400(8) of the Act is mala fide, without jurisdiction and illegal. (7) On 18.2.2009, when this matter was taken up, Mr. L.C. Behani, learned Senior Counsel appearing for the Corporation had produced the said Order dated 6.2.2009 passed under Section 400(8) of the Act. Having perused the contents of the said Order, this Court, in the interests of justice, had directed him to make a photocopy thereof and serve it upon the learned Counsel for the petitioner. It appears that thereafter, the petitioners filed the other writ petition being W. P. No. 145 of 2009 on 19.2.2009. In Re: W. P. No.145 of 2009 (8) In this writ petition, the petitioners have prayed for quashing the said Order dated 6.2.2009 whereby and where under action was sought to be initiated under the provisions of Section 400(8) of the Act. A copy of the said Order is marked as Annexure-P3. The petitioners have also prayed for an Order commanding upon the respondents not to take any action on the basis of the aforementioned Order. A copy of the said Order is marked as Annexure-P3. The petitioners have also prayed for an Order commanding upon the respondents not to take any action on the basis of the aforementioned Order. In Re: Both the Writ Petitions (9) When both the matters were taken up on 20.2.2009, Mr. L.C. Behani, had stated that the Corporation had not taken further steps after 16.2.2009 but before the said Order was passed, they had already demolished a substantial part of the offending portion of the building. Learned Counsel for the petitioner had however disputed such a plea and had stated that only a negligible portion had been demolished. Thereafter Mr. Behani had insisted that a Pleader Commissioner be appointed for ascertaining the veracity of his statements and accordingly, this Court had appointed Sri A. K. Haider to submit a Report. On 20.3.2009, Mr. Haider filed his Report in a sealed cover which was directed to be kept with the records of this Case. Mr. Haider, however handed over copies of the Report both to Mr. A. Chatterjee appearing for the petitioner as well as to Mr. Behani appearing for the Corporation. (10) Before this Court proceeds to deal with the merits of the case involved in both the writ petitions, it would be necessary to express its opinion with regard to the Report submitted by Mr. A. K. Haider annexing and enclosing therewith a series of photographs pertaining to the demolitions. Upon a perusal of the same, it is evident that the entire roof has been cut, and left dangling in such a manner that it would be grossly inappropriate if this Court were to pass it off as mere trivial demolitions. They are substantial in nature and although carried out on a portion, they amount to major demolitions. A roof, left gaping to the sky, cannot be termed as a negligible demolition. They are in fact, substantial demolitions. (11) Mr. They are substantial in nature and although carried out on a portion, they amount to major demolitions. A roof, left gaping to the sky, cannot be termed as a negligible demolition. They are in fact, substantial demolitions. (11) Mr. L. C. Behani, learned Counsel appearing for the Kolkata Municipal Corporation, drawing the attention of this Court to the Order under Section 400(8) as contained in Annexure-P3 of W. P. No.145 of 2009 (being the impugned Order dated 6.2.2009) submits that the language used therein would itself go to show that the premises were inspected and it was found that the construction of a room in an open terrace in the second floor and the additional floor over the second floor with staircase rooms were constructed without any sanctioned plan and therefore Notice under Section 401 was served on 24.10.2008 and a Municipal Guard posted on 20.11.2008 but the person responsible proceeded with the constructions without paying any heed to such departmental action. The Order further refers to the premises being situated in a congested area and the construction, done in a haphazard manner without following the norms. It further says that the structural stability was doubtful and if such constructions were allowed, they would create traffic and environmental hazards and therefore, action under Section 400(8) of the Act was recommended. The matter was placed before the Mayor-in-Council for approval and on the same day, based on the precis of the Agenda, the said Mayor-in-Council approved the same. (12) According to the Mr. Behani, in such a situation, the question of proceeding under Section 400(1) did not arise because the petitioners had continued with their unauthorised constructions in spite of having received Notices and therefore they being offenders, the protection sought to be obtained under the law of natural justice cannot be made available to them. Learned Counsel also states that since the violations are irregular and grossly disproportionate, there is no question of regularising such irregularity. (13) This Court, having perused the contents of the Order as contained in Annexure-P3 of W.P.No.145 of 2009 and which was passed under Section 400(8) of the said Act, is of the view that the submissions of the learned Counsel for the Corporation cannot be accepted. (13) This Court, having perused the contents of the Order as contained in Annexure-P3 of W.P.No.145 of 2009 and which was passed under Section 400(8) of the said Act, is of the view that the submissions of the learned Counsel for the Corporation cannot be accepted. (14) Let it be recorded that upon a perusal of the endorsement dated 16.10.2008 made on the application of the petitioners itself, it is evident that the petitioners had themselves accepted the fact that they had constructed 3200 sq. ft. and that if they had applied for a new construction, they would have been given an F.A.R. of 3500 sq. ft. which was within the permissible limits. It was in this background that they had prayed for regularization of the said constructed area. It is also evident that upon such a prayer being made, the Mayor-in-Council, on 16.10.2008 itself, stated that the matter be processed under Section 400(1) of the Act. (15) Under the provisions of Section 400(1) of the said Act, the legislature has ensured that no Order of demolition shall be made unless the concerned person has been given a Notice to show-cause as to why such an Order of demolition should not be made. However, under Section 400(8) of the Act, it has been laid down that notwithstanding anything contained in the chapter pertaining to these provisions, if the Mayor-in-Council is of the opinion that immediate action is called for in relation to any contravention of any of the provisions of the Act, then it may, for reasons to be recorded in writing, cause such building or work to be demolished. Thus it is evident that before the exercise of jurisdiction/discretion under Section 400 (8), there must be a circumstance calling for an immediate action. The obvious interpretation would be that there is a sudden grave emergent situation which calls for an immediate action. Upon a perusal of the Order dated 6.2.2009, it is evident that the same merely makes allegations that the construction has been done in a haphazard manner, without following the norms and practice of the Civil Engineer. The said Order further alleges that the structural stability of the said construction is doubtful and that if such construction is allowed to stand it will create several hazards like traffic congestion, fire hazards and environmental hazards. The said Order further alleges that the structural stability of the said construction is doubtful and that if such construction is allowed to stand it will create several hazards like traffic congestion, fire hazards and environmental hazards. (16) Having looked into the series of photographs brought on record both by Mr. Haider in his Report as well as by the petitioner in the writ petition, this Court is at a loss to understand as to how reference to the area in question has been made as if it stands on a congested area. So far as the allegations of the constructions being made in such a manner that it may cause traffic congestion, fire hazards and environmental hazards are concerned, this Court is also at a loss to understand as to how such imaginative allegations could have been made in the impugned Order when the photographs at pages 47 and 48 show that the area is not at all congested. Be that as it may, a small addition on the top floor can hardly be said to be so hazardous that it may cause traffic congestion, fire hazards or environmental hazards. (17) It is thus evident that the entire Order dated 6.2.2009 is totally mechanical, routine in nature and a figment of imagination of the scribe who has authored the said Order. (18) Moreover, when the petitioners came out with a specific plea that they had consumed a lesser F.A.R. and when the respondents themselves recommended action under Section 400(1), a Notice under Section 401 of the said Act being said to have been served thereafter on 24.10.2008 (as mentioned in the impugned Order dated 6.2.2009), does not make sense. This Court is at a loss to understand as to why, after making the recommendation under Section 400(1) of the Act, the respondents thereafter proposed action under Section 400(8) ? What was the grave and emergent situation that persuaded them to exercise such a discretion and then induced them to make substantial demolitions which is revealed not only from the Report of the Special Officer referred to above but also from the own statement of the learned Counsel for the Corporation made on 20.2.2009 before this Court submitting that a substantial portion of the building had already been demolished prior to 16.2.2009. (19) The statement made by the learned Counsel for the Corporation as referred to in Para 9 above proves that as soon as the Order dated 6.2.2009 was passed approving action under Section 400(8), the respondents hastily proceeded to make the demolitions which were substantial in nature. Once the respondents had decided and invoked the provisions of Section 400(1) they should not have straightway taken recourse to Section 400(8) unless there were reasons justifying such action on the basis of a Report that called for an immediate action. (20) Nothing has been brought on record to show that such a grave emergency existed. The photographs brought on record belie any such apprehensions of grave emergency. The reasons mentioned in the Order dated 6.2.2009, in the opinion of this Court, did not warrant action under Section 400(8).The Order says that the structural stability of the constructions are "doubtful". If they say that the structural stability is "doubtful", it is obvious that they are themselves not sure. How can they therefore justify action under Section 400(8) if they are themselves not sure of the structural stability. Merely by saying that it is "doubtful", did not entitle them to demolish unless they specified as to in what manner the constructions were "doubtful". The said Order, being vague, cannot be said to be reasonable at all. (21) In the opinion of this Court, in this case, the Kolkata Municipal Corporation appears to have acted in an extremely high-handed, dictatorially, unconstitutional and arbitrary manner in proceeding to demolish the roof in such a manner that whenever one looks into these photographs as well as the photographs that have been appended in the Report of the Special Officer, they suggest destruction without the authority of law. The respondents must therefore be held to have violated the petitioners right to property without any rhyme or reason. (22) In a recent judgment of the Honble Supreme Court passed in the case of Chairman, Indore Vikas Pradhikaran v. M/s. Pure Industrial Cock and Chem. Ltd. and Ors., reported in AIR 2007 SC 2458 , it has been held in Para-54 therein that the right to property is not only a fundamental right but it is also a human right. Ltd. and Ors., reported in AIR 2007 SC 2458 , it has been held in Para-54 therein that the right to property is not only a fundamental right but it is also a human right. In a constitutionally ruled country like India where we have given to ourselves a preamble ensuring that India shall be governed by the rule of law, no authority has the power to act unconstitutionally. The right to life is a fundamental right and it includes the right to live with dignity. If a statutory authority takes the law into its own hands and bulldozes into somebody elses property and then wreaks devastation thereon, such an authority must be said to have acted arbitrarily and unconstitutionally. (23) As a result, this writ petition is allowed and the action taken as well as the Order passed under Section 400(8) of the Act are held to be arbitrary, illegal and unconstitutional and as such, set aside and quashed. (24) The respondents are now directed to deal with the situation in accordance with law and unless there be grave emergent situation, not to take devastating action like the one that they chose to do. They must strictly abide by their own recommendations to proceed under Section 400(1) of the Act and if the situation so requires, to regularize the construction if the same is within the permissible F.A.R. limits but for having taken the law in their own hands and for having acted arbitrarily as above, they must pay costs to the petitioner which is quantified at Rs.1 Lakh (Rupees One Lakh). (25) The writ petition is allowed with costs as indicated above. (26) Upon appropriate application(s) being made, urgent xeroxed certified copy of this judgment, may be given/issued expeditiously subject to usual terms and conditions. Later-After the aforementioned judgment was delivered in Court, Mr. Behani, learned Senior Advocate appearing for the Corporation prays for stay of this judgment. Having considered the facts and circumstances of this case, this Court refuses to stay the judgment.