JUDGMENT Soumitra Pal, J. 1. In this writ petition, the petitioner, the owner of the premises in question, has challenged the notice dated 7th December, 2011 issued under section 401 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as "the Act") directing her to stop further construction including addition and alteration of the premises as it was allegedly carried out in deviation of the sanctioned plan and was in breach of the provisions of the Act. The case of the petitioner, as stated in the writ petition and in the supplementary affidavit, is that in the year 2010 she in terms of the sanctioned plan had constructed a building at the said premises comprising the ground floor and three upper floors. After completion of such construction, the petitioner found that there was some area within the premises where additional construction could take place and the same would fall within the Floor Area Ratio as permitted by the Kolkata Municipal Corporation ("Corporation" for short). The petitioner, intending to make construction in this additional area, filed an application for sanction of a revised building plan under the Kolkata Municipal Corporation Building Rules, 2009 (for short "the Rules"), which is pending. Thereafter, during October, 2011, the private respondent No. 7, engaged in the business of setting up and installation and operation of telecommunication infrastructure, including towers, shelters DG set antennae and other related equipments, approached the petitioner to install a telecommunication tower ("tower" for short) on the roof of the premises. The petitioner was informed that for the purpose of construction of the tower, approximately 600 square feet of area on the roof would be required and the tower would be erected within ten days after obtaining requisite licences, consent and approvals from the statutory authorities. Subsequently, on 4th November. 2011 the petitioner and the private respondent entered into an agreement for licence in terms whereof private respondent was permitted by the petitioner to set up a tower on a demarcated portion on the roof of the premises. Statement is at the time of entering into the agreement, the private respondent handed over a copy of the application dated 3rd November, 2011 addressed to the Executive Engineer, Borough No. II, Building Department, Kolkata Municipal Corporation for obtaining no objection certificate for raising the tower. Statement is at the time of entering into the agreement, the private respondent handed over a copy of the application dated 3rd November, 2011 addressed to the Executive Engineer, Borough No. II, Building Department, Kolkata Municipal Corporation for obtaining no objection certificate for raising the tower. Thereafter, the petitioner received the impugned notice dated 7th December, 2011 under section 401 of the Act from the Corporation and in terms whereof guards were posted by the Corporation at the premises for preventing unauthorized construction. After receiving the notice, the petitioner went to the office of the Corporation and was directed to submit an undertaking that no unauthorized construction would take place and only upon furnishing such undertaking, guards posted would be withdrawn. In such circumstances, the petitioner furnished an undertaking and paid a sum of Rs. 9,600/- for posting of guard and prayed for withdrawal of guard. 2. The further case of the petitioner is that, in the meantime, she was informed by the private respondent that the application for obtaining no objection certificate to set up the tower was kept in abeyance since the said private respondent was required to comply with certain other requirements as per the office circular of the Corporation. In such connection, the private respondent handed over a copy of the letter dated 3rd December, 2011 issued by the Corporation and a copy of the relevant circular. It is stated that as in due compliance of the circular dated 5th May, 2006, necessary documents were submitted before the Corporation for the purpose of obtaining the no objection certificate for installation of the telecom tower and the requirements in the circular dated 5th May, 2006 have been complied with, the private respondent is entitled to have necessary clearance for operating the tower. Moreover, as sanction is only required for operation of a tower and as the setting up of a tower does not come within the ambit of raising construction, no sanction by the Corporation is required to be obtained for its erection. The case of the petitioner is that though there is no unauthorized construction and the tower is not operational, she has come to learn that her premises is in the process of being demolished pursuant to the notice dated 7th December, 2011 issued under section 401 of the Act. Hence, the writ petition challenging the said notice. 3. Mr. The case of the petitioner is that though there is no unauthorized construction and the tower is not operational, she has come to learn that her premises is in the process of being demolished pursuant to the notice dated 7th December, 2011 issued under section 401 of the Act. Hence, the writ petition challenging the said notice. 3. Mr. Abhrajit Mitra, learned advocate for the petitioner, relying on the statements in the writ petition and in the supplementary affidavit submitted that the permission for setting up a tower can be obtained at any stage of its erection as it does not require prior permission under Rule 76(h) of the Rules if compared to Rule 76(i) which speaks of prior permission. Assuming under Rule 15(2) for raising a tower a building permit is required, neither there is provision for applying for building permit nor there is any procedure for assessment of the building permit fees. So far as the safety aspect is concerned since a mobile tower in operation is not a health risk, the question of health hazard does not arise. Therefore, as the tower was being raised after filing an application dated 3rd November, 2011 for the grant of no objection certificate, the respondents are promissorily estopped from taking action. Learned advocate for the petitioner had referred to the following judgments in support of his submission. They are:- M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621 ; L.I.C. v. Escorts Ltd., (1986)1 SCC 264 ; Jaginder Singh v. CMC: (1997)2 CHN 403 and Raju Chanda v. State of West Bengal, (2010)3 CHN (Cal) 39. Reference was also made to an unreported order dated 29th June, 2012 in MAT 519 of 2012 and in CAN 3662 of 2012. 4. Mr. Subhayu Banerjee, learned advocate for the private respondent No. 7, adopting the arguments advanced on behalf of the petitioner, submitted that as application was made prior to its installation and as deviation, if any, is minor in nature, the mobile tower erected may be directed to be regularized. Whichever be the circular - be it the circular dated 5th May, 2006 or the circular dated 27th September, 2010, it does not call for demolition but speaks of post facto ratification. Whichever be the circular - be it the circular dated 5th May, 2006 or the circular dated 27th September, 2010, it does not call for demolition but speaks of post facto ratification. Referring to the affidavit in opposition filed by his client, submission was as recently in a similar matter Corporation had directed post facto regularization, the impugned notice under section 401 of the Act is an afterthought. 5. Mr. Gurudas Mitra, learned advocate for the Corporation, relying on the affidavit in opposition affirmed on behalf of the said authority, submitted that fact is completion certificate is yet to be granted with regard to the premises on which the mobile tower has been installed. Moreover, as during construction there were deviations, the petitioner had filed an application under Rule 26 of the Rules. It was submitted as under section 2(5) of the Act a tower comes within the definition of "building" and as section 392 creates an absolute bar in erecting a building, except with the previous sanction of the Municipal Commissioner and as the tower was raised without sanction, which is evident from the undertaking furnished by the petitioner whereby she undertook not to proceed further and paid the charges for posting of guards, the Corporation was justified in issuing notice dated 7th December, 2011. Submission was, though the letter dated 3rd December, 2011 by mistake referred to the circular dated 5th May, 2006, even a perusal of paragraphs 2, 5 and 7 of the said circular reveals that erection of a tower is subject to certain preconditions. Moreover, the circular dated 27th September, 2010, which in the instant case is applicable, reveals that permission for installation of tower shall be granted to the owners provided sanctioned plan, agreement with the service provider, no objection certificate from the West Bengal Pollution Control Board and Structural Stability Certificate are produced. In the instant case, the petitioner is yet to ensure compliance of the stipulations in the circular particularly with regard to the provisions relating to the mobile phone service providers. Submission was since there is no agreement between the petitioner and the service provider and an application for no objection certificate was filed on 3rd November, 2011 without complying with the requirements under the circular dated 27th September, 2010, action taken by issuing the impugned notice is just and proper. Submission was since there is no agreement between the petitioner and the service provider and an application for no objection certificate was filed on 3rd November, 2011 without complying with the requirements under the circular dated 27th September, 2010, action taken by issuing the impugned notice is just and proper. Submission was in view of the prohibition in raising building without previous sanction in section 392, the argument of estoppel on behalf of the petitioner is not tenable. In view of the clear provision in the statute and as action was initiated before the tower could be set up, the argument of the petitioner for post facto regularization upon payment of fees does not arise. Though the cause of action arose in December, 2011, as the petition was filed after considerable delay, the arguments of the petitioner are an afterthought. Learned advocate for the Corporation relied on the judgment of the Apex Court in Friends Colony Development Committee v. State of Orissa: (2004)8 SCC 733 in support of his submission. 6. In order to adjudicate the matter, the issues to be considered are:- (i) Whether a tower comes within the definition of "building" under section 2(5) of the Act; (ii) If the answer to the issue no. 1 is in the affirmative, whether for erecting a tower sanction is required under the Kolkata Municipal Corporation Act, 1980; and (iii) If sanction is required and a tower is erected without having express permission from the Corporation, whether the Act provides for post facto regularization of the said structure. 7. In order to answer the first issue it is necessary to refer to the definition of "building" in the Act, which is as under:- 2. Definitions.- (5) "building" means a structure constructed for whatsoever purpose and of whatsoever materials and includes the foundation, plinth, walls, floors, roofs, chimneys, fixed platforms, verandas, balcony, cornice or projection or part of a building or anything affixed thereto or any wall (other than a boundary wall less than three metres in height) enclosing or intended to enclose any land, signs and outdoor display structures but does not include a tent, samiana or tarpaulin shelter. (Emphasis supplied) 8. In the light of the definition there is no doubt that the premises in question is a "structure constructed" and thus, it comes within the definition of "building". (Emphasis supplied) 8. In the light of the definition there is no doubt that the premises in question is a "structure constructed" and thus, it comes within the definition of "building". Now it is an admitted position that a tower for the purpose of mobile telecommunication has been set up on the roof of the building. There is no dispute that the said tower has been "affixed" to the said building. Hence, under section 2(5) of the Act the tower is within the inclusive definition of the term "building" and is, therefore, a "building". The position becomes clear as the definition of "building" "does not include a tent, samiana or tarpaulin shelter". In order to answer the second issue it is necessary to refer to sections 392 and 393 of the Act. Section 392 is extracted hereunder:- 392. Prohibition of building without sanction.-- No person shall erect or commence to erect any building or execute any of the works specified in section 390 except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act in relation to such erection of building or execution of work. (Emphasis supplied) Section 393 is as under:- 393. Erection of building.- Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form together with such fees including Drainage Development fee and containing such information as may be prescribed: Provided that the Corporation may also levy fees under this section with retrospective effect. (Emphasis supplied) In this regard it is appropriate to refer to Rule 76 of the Rules, which is as follows:- 76. (Emphasis supplied) In this regard it is appropriate to refer to Rule 76 of the Rules, which is as follows:- 76. Height exemption.- The height of the following appurtenant structures shall not be included in calculating the height of a building:- (a) roof tanks and their support, the height of support not exceeding one metre, (b) ventilating, air-conditioning and similar service equipment, (c) chimneys, (d) parapet walls not exceeding one and a half metre in average height, (e) lift machine room as specified in the latest publication of National Building Code, and stair cover upto, a height of 3 m. from the roof level, (f) toilet at roof level upto a height of 3.0 m. subject to maximum floor area of 3.00 sq.m., (g) garden cover with permeable material not exceeding 3.00 m. in height, (h) equipments for telecommunication such as microwave antennae, towers and dish antennae as well as room for installing the said equipments or their support equipments subject to a maximum area of 25 sq.m. and further subject to permission of the same from Municipal Commissioner, (i) raising of ground level upto 600 mm. provided the entire site is raised to avoid flooding for areas prone to water logging with prior permission of the Municipal Commissioner. Note: The aggregate area of such structures in clauses (a) to (h) above shall not exceed one-third of the area of the roof of the building upon which these are erected. (Emphasis supplied) 9. As seen from the plain language of section 392, it creates an absolute bar to erecting a building without sanction. The words "No person shall erect or commence to erect any building or execute any of the works specified in section 390 except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of this Chapter and of the rules and the regulations made under this Act in relation to such erection of building or execution of work" leave no manner of doubt in that regard. The language of section 392 is specific. The position of law is made clear as section 393 makes if mandatory that every person who intends to erect a building "shall" have to apply for sanction by giving notice to the Municipal Commissioner in such form along with such fees and information as may be prescribed. The language of section 392 is specific. The position of law is made clear as section 393 makes if mandatory that every person who intends to erect a building "shall" have to apply for sanction by giving notice to the Municipal Commissioner in such form along with such fees and information as may be prescribed. So on a reading of section 393 it is clear that one cannot raise a building without making a prior application for sanction for raising a building. In this backdrop the argument on behalf of the petitioner, that since Rule 76 (h) of the Rules dealing with tower speaks of '"permission" by the Municipal Commissioner and not "prior permission" as postulated under Rule 76(i) which deals with raising of ground floor level, there is no bar in granting post facto sanction and the tower erected may be directed to be regularized on payment of fees, cannot be accepted because it is against the provisions contained in section 392 which in no uncertain language creates a complete bar or prohibits in erecting a structure "except with the previous sanction of the Municipal Commissioner". Though the word "prior" is absent in Rule 76(h), in view of the unambiguous language of sections 392 and 393 it cannot but mean prior permission or sanction of the Municipal Commissioner as correctly contended on behalf of the Corporation. It is to be noted that rules framed are subordinate to the Statute. Consequently, rules cannot override the provisions of an Act. Thus, any rule which is inconsistent with or is in excess of the express and specific provisions contained in the Act is ultra vires the Statute. Therefore, any interpretation of Rule 76 (h) which nullifies the effect of sections 392 and 393 cannot be accepted. Hence, as a tower is "affixed" to a "building" and is a "building" within the meaning of section 2(5) of the Act, for erecting a tower prior sanction is necessary in view of sections 392 and 393 of the Act. 10. With regard to the third issue, from a perusal of the provisions of the Act and from the respective submission made by the learned advocates for the parties it is clear that the Statute does not provide for post facto regularization of a "building" erected without the previous sanction of the Municipal Commissioner. 10. With regard to the third issue, from a perusal of the provisions of the Act and from the respective submission made by the learned advocates for the parties it is clear that the Statute does not provide for post facto regularization of a "building" erected without the previous sanction of the Municipal Commissioner. In short erecting a building, including a tower and then applying for post facto sanction or regularization is against the legislative mandate contained in sections 392 and 393. The mandatory "Prohibition" in section 392 and section 393 stipulating that every person intending to erect a building "shall" apply for sanction by giving notice in writing make the law abundantly clear. Such being the law, any order directing post facto regularization of a building erected without sanction, even on payment of fees or fine or both shall render sections 392 and 393 otiose. Therefore, as I find that the concept of post facto sanction or regularization is alien to the Act, any "building", which includes a tower, erected without sanction of the Municipal Commissioner is illegal. Hence, in my view, as the language in sections 392 and 393 is clear and explicit, regularizing an unauthorized construction on payment of fees or fine or penalty as contended by the petitioner is contrary to the provisions of the Act. Thus, in view of the mandate in sections 392 and 393 any Rule or notification or order or circular issued by the Corporation which speaks of post facto sanction or regularization of a "building" erected without sanction, even on payment of an amount, be it called charges or fees or penalty or fine, is not warranted in law and void and, therefore, illegal and cannot be acted upon. 11. This apart, there are other points raised during argument which require consideration. I find that by allowing the private respondent No. 7 to raise the tower before the grant of completion certificate, the petitioner had violated section 403 of the Act which prohibits use of building or part thereof before the grant of completion certificate, more so when an application by the petitioner under Rule 26 is pending. Moreover, after the impugned notice under section 401 was issued, petitioner had given written undertaking not to construct further and had paid the charges for posting of guards without protest. Moreover, after the impugned notice under section 401 was issued, petitioner had given written undertaking not to construct further and had paid the charges for posting of guards without protest. Besides, the respondent No. 7 had filed an application dated 3rd November, 2011 for the grant of no objection certificate even prior to entering into licence agreement with the petitioner, the owner of the premises, which was subsequently entered into on 4th November, 2011. Incidentally the petitioner has not entered into any agreement with the service provider as provided in the circular dated 27th September, 2010. Though there may be substance in the argument put forward by the petitioner that a mobile tower in operation does not cause health hazard, however, as it has been stipulated in the circular dated 27th September, 2010 that. "The applicant has to produce the "No Objection Certificate" issued by West Bengal Pollution Control Board while applying for such Clearance/Permission" and though I find from the affidavit in opposition filed by the Corporation that the Department of Environment, Government of West Bengal had issued an order dated 24th April. 2008 under the Environment (Protection) Act, 1986 and the Rules framed thereunder directing the mobile service providers to follow the guidelines contained therein strictly, however, there is nothing on record to show compliance of the said order either by the petitioner or by the private respondent No. 7. 12. So far as the judgments cited by the petitioner is concerned, in view of section 392 of the Act and as there is no estoppel against a statute, the law laid down in MP Sugar Mills (supra) is not applicable. Similarly the principles of law laid down in paragraph 63 of the judgment in L.I.C. v. Escorts Limited (supra) is not applicable as in the case in hand, the legislature had consciously incorporated the "Prohibition" in section 392 of the Act. The judgment in Jaginder Singh (supra) is not applicable on facts as therein the petitioner challenging the valuation had pursued parallel proceedings -- before the Tribunal as well as before the High Court. Moreover, there is no question of violation of the principles of natural justice as in the case in hand notice under section 401 had been issued and it was for the petitioner to respond. Moreover, there is no question of violation of the principles of natural justice as in the case in hand notice under section 401 had been issued and it was for the petitioner to respond. The judgment in Raju Chanda (supra) does not further the cause of the petitioner as therein Court while considering section 204 of the West Bengal Municipal Act, 1993, which is pari materia to section 392 of the Act, had held it creates complete bar to raising construction without sanction. The order dated 29th June, 2012 passed in MAT 519 of 2012 and CAN 3662 of 2012 (unreported) is of no assistance to the petitioner as while quashing the order passed by the learned Single Judge and allowing writ petition, appeal and stay application, the Division Bench granted liberty to the appellant to file an application, annexing all particulars as sought for in the circular dated 27th September, 2010, seeking permission to install mobile tower and also for post facto regularization of erection of such tower and the Commissioner of the Howrah Municipal Corporation was directed to consider the matter regarding post facto regularization for erecting the tower in terms of the said circular. Since the petitioner has raised the tower without obtaining previous sanction and that too atop a building which yet to be granted a completion certificate under section 403 of the Act, in my view, the issue is covered by the law laid down in paragraph 25 of the judgment of the Apex Court in Friends Colony Development Committee (supra) relied on behalf of the Corporation. Therefore, as a tower comes within the definition of "building" under section 2(5) of the Act and, as discussed, prior sanction is required for its erection and as the provisions of the Act do not provide for post facto regularization of the said structure and as the petitioner was raising the tower without sanction, the Corporation was justified in issuing the notice dated 7th December 2011 under section 401 of the Act. Thus, there is no merit in the writ petition. Hence, the writ petition is dismissed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the appearing parties on priority basis. Petition dismissed