Judgment Soumitra Pal, J. In the writ petitions, being W.P. 14557 (W) of 2012, W.P 934 (W) of 2014, W.P 3583 (W) of 2014, W.P. 6960 (W) of 2014 and W.P 8951 (W) of 2014, the petitioners have prayed for direction upon the Kolkata Municipal Corporation (in short ‘KMC’) and in W.P 7871 (W) of 2014 upon the Howrah Municipal Corporation (‘HMC’ in short) to demolish constructions found to be illegal and directed to be retained or regularised upon payment of fees, principally on the ground that the provisions contained in the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as ‘1980 KMC Act’) and the Howrah Municipal Corporation Act, 1980 (hereinafter referred to as the ‘1980 HMC Act’) do not confer jurisdiction on the respective adjudicating authorities to pass such orders. In the writ petition, being W.P. 3508 (W) of 2014 and in W.P. 251 of 2014 the petitioners have principally challenged the imposition of fees or charges for retaining or regularisation of the unauthorized construction on the ground that it is not permissible under the 1980 KMC Act. In my view, as the issues are common, matters were heard analogously. It appears from the records that directions were issued to file affidavits. In some of the matters, affidavits have been filed and exchanged. Let the arguments advanced on behalf of the writ petitioners and private respondents be noted, in brief. W.P. 14557(W) of 2012 In W.P. 14557(W) of 2012 Mr. Naren Ghosh Dastidar, learned advocate for the petitioner submitted that though in the order dated 16th May, 2012 the Executive Engineer (Civil), Building Department, Borough II, KMC held that it was an admitted fact that there was no sanctioned plan for the additional structure and though section 392 of the 1980 KMC Act absolutely bars construction without prior sanction of the Municipal Commissioner, yet order was passed directing retention. Mr. Dipankar Chakraborty, learned advocate appearing for the private respondent no.6, that is the person held responsible for carrying out the construction, relying on the affidavit in opposition submitted that no construction was made on the common wall of the two premises as alleged and there has been no infringement of easmentary rights. Moreover, the empanelled structural engineer of the KMC had certified that the construction is safe and stable. W.P. 3583 (W) of 2014 The argument of Mr. Moreover, the empanelled structural engineer of the KMC had certified that the construction is safe and stable. W.P. 3583 (W) of 2014 The argument of Mr. Lal Mohan Hajra, learned advocate for the petitioner in W.P. 3583 (W) of 2014 was similar to W.P. 14557 (W) of 2012. Mr. Arnab Dutta, learned advocate for the respondent no.5, relying on the affidavit in opposition, submitted that the order dated 29th April, 2013 passed by the Special Officer (Building), KMC directing retention of the construction by exercising discretion was in consonance with section 400 of the 1980 KMC Act. W.P. 934 (W) of 2014 In W.P. 934 (W) of 2014 Mr. Sambhu Nath Dey, learned advocate for the petitioner, assailing the order dated 31st May, 2013 passed by the Special Officer (Building), KMC, submitted as the construction was found to be unauthorised, the direction to legalise it, is illegal. Mr. Suddhasatwava Banerjee, learned advocate for the private respondent no.7, that is the person who had raised construction, relying on the affidavit in opposition submitted, as the adjudicating authority in its order had observed that the unauthorised construction is not so grave and infraction of building rules cannot be said to be major in nature and as it is a dwelling house, the order under challenge is just and proper. W.P. 6960 (W) of 2014 Mrs. Sayanti Santra, learned advocate for the writ petitioner in W.P. 6960(W) of 2014, submitted, since despite written complaints order dated 6th January, 2014 was passed by the Deputy Chief Engineer (Building), South, KMC, directing regularisation of the unauthorized construction on payment of charges, it is perverse, arbitrary and illegal. Mr. Keshab Bhattacharjee, learned advocate for the private respondent no.7, reiterating the statements in the affidavit in opposition, submitted that the impugned order requires no interference as the construction in question is minor in nature and the conditions set forth in the impugned order have been fulfilled. W.P. 8951 (W) of 2014 Mr. Rajnarayan Dutta, learned advocate for the petitioner reiterating the statements in the writ petition, being W.P. 8951 (W) of 2014, submitted that the order dated 3rd January, 2014 in B.T. Appeal No. 21 of 2011 by the Municipal Building Tribunal affirming the order dated 18th August, 2010 passed by the Special Officer, (Building) KMC permitting the private respondents to retain the construction is impermissible under the 1980 KMC Act. Mr. Mr. D. N. Chatterjee learned advocate for the private respondent no.4 relying on the affidavit in opposition denied raising of any unauthorised structure. 7871 (W) of 2014 In W.P. 7871 (W) of 2014 the petitioner has prayed for demolition of the unauthorised construction at 8/2 Bhuban Mohini Road, Shibpur, Howrah under the jurisdiction of the HMC. By filing a supplementary affidavit challenge has been made to the order dated 6th December, 2013 directing regularisation of the building on payment of Rs. 12,720/-. Mr. Rajarshi Dutta, learned advocate for the petitioner, submitted though the order dated 23rd February, 2013 passed by the HMC directing demolition of the illegal construction was not fully complied by the private respondent no.4, yet subsequently in violation of the provisions in the 1980 HMC Act, order was passed directing retention of the structure on payment of fees. Mr. N. C. Bihani, learned advocate for the private respondent contended that as pursuant to the order passed in M.A.T. 1179 of 2012 by the Division Bench, representation was filed before the municipal authorities and order of retention was passed after giving an opportunity of hearing and thus final step was taken, the writ petition is without merit. W.P. 251 of 2014 In the writ petition, being W.P. 251 of 2014, the petitioners have challenged the demand notice dated 15th February, 2014 by KMC imposing a sum of Rs. 1,74,74,407/- as regularisation charges. Mr. Hirak Mitra, learned senior advocate submitted since the petitioners purchased the premises, a hospital, pursuant to a Court Sale and there was no complaint from the neighbours and as section 400(1) of the KMC Act confers jurisdiction to exercise discretion and as regularization is not an issue and as the basis of imposition of fees/ charges has not been furnished and imposition of fees/charges is the only question, the demand may be set aside. W.P. 3508(W) of 2014 The issue in W.P. 3508(W) of 2014 is similar to W.P 251 of 2014. Mr. Amit Gupta, learned advocate for the petitioner, in his argument, had questioned imposition of Rs.3,32,974/- as charges for retention. Now let the argument on behalf of the respondent KMC be noted in brief. Mr. W.P. 3508(W) of 2014 The issue in W.P. 3508(W) of 2014 is similar to W.P 251 of 2014. Mr. Amit Gupta, learned advocate for the petitioner, in his argument, had questioned imposition of Rs.3,32,974/- as charges for retention. Now let the argument on behalf of the respondent KMC be noted in brief. Mr. Aloke Kumar Ghosh, learned advocate appearing for the KMC, opposing the writ petition, being W.P 251 of 2014, submitted that from the order dated 16th July, 2013 passed by the Special Officer (Building) it is evident that the petitioner had covered the spaces which under the law should have been kept open, had added two stories and there has been change of use in violation of the statutory provisions and rules. Since order of retention and payment of charges are part of the same order and order directing retention has been accepted, the petitioner is estopped from questioning the imposition of charges. As the entire object of the 1980 KMC Act is to build a planned city and as the statute does not authorise legalising an unauthorised construction, rather power has been conferred under section 400(1) upon the Municipal Commissioner to take action under section 401, 610 and 619A, no order may be passed. Mr. Achintya Banerjee, learned advocate appearing in W.P No. 6960 (W) of 2014, W.P No. 934 (W) of 2014, W.P No. 8951 (W) of 2014 and W.P No. 3508 (W) of 2014 supporting the stand taken by Mr. Aloke Ghosh, however, submitted though 1980 KMC Act had come into force repealing Calcutta Municipal Corporation Act, 1951, however, considering the social aspect, such as scarcity of land in the city of Kolkata and crunch of space, as power to exercise discretion remains under the statue, minor infringements may be condoned. Mr. Ashok Kumar Banerjee, learned Government Pleader appearing for the KMC submitted that Court having inherent power to do justice, may exercise discretion. Accordingly, in order to solve the disputes, adjudicating authorities, in appropriate cases, have been passing orders direction retention on payment of fees. During hearing learned advocates for the parties had relied on judgments which shall be dealt with appropriately. Accordingly, in order to solve the disputes, adjudicating authorities, in appropriate cases, have been passing orders direction retention on payment of fees. During hearing learned advocates for the parties had relied on judgments which shall be dealt with appropriately. In order to adjudicate, the issues to be considered are:- (i) Whether in view of the provisions contained in sections 392 and 393 of the 1980 KMC Act, prior sanction is necessary to erect a building; (ii) Whether the 1980 KMC Act and the rules framed thereunder make any distinction between major and minor building or construction; (iii) Whether section 400(1) confers discretion upon Municipal Commissioner to pass order directing regularization and/or retention of a building erected in deviation or in violation of the sanctioned plan and (iv) If prior sanction under section 392 is required and a building is erected without having express permission from the Corporation, whether an order directing post facto regularization or retention of the said structure can be passed by the Municipal authorities. Before dealing with the issues, it is appropriate to set out sections 2(5), 392,393,400,413A of the1980 KMC Act and Rules 3(1) and (2), 4(1), 18(3) and 26 of the Kolkata Municipal Corporation Building Rules, 2009 (‘Rules’ for short). Section 2(5) is as follows:- 2. Definitions. – In this Act, unless the context otherwise requires – “[(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) Section 392 is as under:- “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 follows:- “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) Appropriate portions of section 400 is set out hereunder:- “400. Orders of demolition and stoppage of buildings and works in certain cases and appeal.- (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 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 therefor has been delivered to such persons, 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:…….” “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.” (Emphasis supplied) Relevant portion of section 413A is as follows:- “413A. Regularization of buildings in certain cases.- (1) Notwithstanding anything contained in this Chapter or elsewhere in this Act, all buildings, the construction of which by the persons displaced from East Pakistan (now Bangladesh) or by their successors-in-interest on lands occupied by such persons have been completed on or before the commencement of the Calcutta Municipal Corporation (Amendment) Act, 1996, and where the documents of title to such lands have been granted by the State Government, shall be regularized by the Municipal Commissioner under this Chapter, subject to payment of the requisite fees and charges and on submission of application in the prescribed form along with the plan for each building: Provided that such regularization shall be made only in the cases where the constructions have been completed in conformity with the existing building rules of the Corporation: Provided further that in the cases where the buildings have been completed not in conformity with the existing building rules of the Corporation, in the appropriate cases the Municipal Commissioner, in relaxation of such building rules, shall be competent to regularize such building:” Rule 3(1) (2) of the rules is as under:- “3. Prohibition of erection of Building without Building permit. – (1) No person shall erect a new building, or re-erect, or make addition to, or alteration of any building, or cause the same to be done as specified in section 392, without obtaining a sanction in the form of a Building Permit from the Municipal Commissioner under the Act, and without obtaining such permission for development from the concerned authority as may be required under the West Bengal Town and Country (Planning and Development) Act, 1979 (West Ben. XII of 1979). XII of 1979). (2) Notwithstanding the provisions of sub-rule (1) no building permit shall be required for- (a) erection, re-erection, addition to, or alteration of – (i) an internal partition wall which does not violate any of the provisions of the Act or these rules, or (ii) a parapet wall or a cornice or chajja within the boundaries of the site and not overhanging a street, however, that the total height of the parapet wall shall not be more than 1.50 m. and width of the cornice or chajja shall not be more than 60 cm.; b) repairing of staircase or a lift-shaft; (c) white washing or painting; (d) re-flooring of the surface of an existing floor; (e) minor repairs and re-flooring of an existing damaged roof without changing the character and dimension of such roof: Provided that the character of the damaged roof may be allowed to be changed and its reconstitution permitted by permission in writing of the Commissioner on such terms as he may consider fit upon application being made to him with three copies of plan; on payment of requisite fees and on submission of structural stability certificate from a Structural Engineer, Architect or a Licensed Building Surveyor, as the case may be: Provided further that no such work as is referred to in clauses (a) and (e) shall be undertaken without giving the Municipal Commissioner fifteen days’ notice in writing stating the nature of work proposed to be undertaken; (f) erection of false ceiling in any floor for air-conditioning, lighting or decorative purposes; (g) plastering and patch work; (h) providing or closing and internal door or window or ventilator not opening directly opposite a door or a window of another building; (i) replacing of taken bricks, stones or repairing of damaged pillars or beams; (j) repairing or renewing existing plumbing, sanitary and other utility services; (k) repairing of boundary wall; (l) carrying out such other work as is necessary in the opinion of the Municipal Commissioner, for reasons to be recorded in writing, to maintain the building in a condition of good repair or to secure it to prevent danger to human life.” (Emphasis supplied) Relevant portion of Rule 4 is extracted hereinbelow:- “4. Notice for erection or alteration of a building.- (1) Every person who intends to erect a new building on any site whether previously built upon or not or re-erect or make addition to or alteration of any building shall apply for sanction by giving notice in writing to the Municipal Commissioner.” Rule 18(3) is as under:- “18. Delay in sanction or refusal.- (3) The applicant shall under no circumstances violate the provisions of section 392.” Rule 26 of the Rules is set out hereunder:- “26. Deviation during execution of works.- (1) No deviation from the sanctioned plan shall be made during erection or execution of any work. (2) Notwithstanding anything contained in sub-rule (1) – (a) if during erection or execution of work any internal alteration within the sanctioned covered space which does not violate the provisions of the Act or these rules is intended to be made, the person referred to in sub-rule (1) of rule 4 shall inform the Municipal Commissioner by notice in writing along with a certificate from the Architect or the Licensed Building Surveyor and Structural Engineer, as the case may be, together with drawings incorporating the deviations, and structural calculation in case of structural deviations, stating the nature and purpose of such deviations, at least fifteen days prior to carrying out such erection or execution of work and may thereafter proceed with the execution of such work, subject to the condition that such deviations shall be incorporated in the "Completion Plans" under sub-rule (2) of rule 27; (b) if during the erection or execution of the work, any external deviation beyond the sanctioned covered space is intended to be made and which does not violate the provisions of the Act or these rules, the person referred to in sub-rule (1) of rule 4, shall prior to carrying out such erection or execution of works, submit in accordance with the provisions of these rules, a revised plan incorporating the deviation intended to be carried out, for obtaining necessary sanction. (3) If no notice is served under clause (a) of sub-rule(2), or the work of erection or execution is undertaken without the sanction referred to in clause (b) such erection or execution to work shall be deemed to be in contravention of the provisions of the Act and these rules and shall be dealt with accordingly.” (Emphasis supplied) In order to answer the first issue, it is necessary to refer to section 392. As seen from the plain language of the said section, it creates an absolute bar to erect 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 unambiguous and specific. The position of law is made clear as section 393 makes it 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 persons responsible in raising the construction that there is no bar in granting post facto sanction and a building or part of it erected without sanction may be directed to be regularised 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.” The statutory Building Rules 2009 are also in the same vein. Rule 3(1) prohibits erection of a new building or re-erection or making addition or alteration of any building or cause the same to be done as specified in section 392 without obtaining a sanction in the form of “Building Permit” from the Municipal Commissioner. Rule 3(1) prohibits erection of a new building or re-erection or making addition or alteration of any building or cause the same to be done as specified in section 392 without obtaining a sanction in the form of “Building Permit” from the Municipal Commissioner. Rule 4(1) postulates that a person intending to erect or re-erect a building shall have to apply for sanction by giving notice in writing before the Municipal Commissioner. Significantly rule 18(3) makes it clear that even in case of delay in grant of sanction or refusal of a plan, an applicant “under no circumstances” shall violate the provisions of section 392. In this context it is appropriate to refer to Rule 3(2) of the Rules which enumerates in detail certain construction for which no sanction is required. Though, Rule 26(2)(a) permits “internal alteration within the sanctioned covered space” which does not violate the provisions of the Act, however, obligation is cast on the person erecting the building to inform the Municipal Commissioner by notice at least fifteen days prior to erection or execution of work and thereafter to proceed subject to the condition that such deviations are incorporated in the “Completed Plans” under sub-rule (2) of rule 27. Similarly, under Rule 26(2)(b) if during execution of work, “external deviation beyond the sanctioned covered space is intended to be made”, which does not violate the provisions of the Act or the rules, the person concerned, prior to carrying out such erection or execution of works, is required to submit in accordance with the rules a revised plan incorporating the deviation intended to be carried out for obtaining necessary sanction. That compliance of the provisions of Rule 26(2)(a) and (b) is mandatory is evident from the language of Rule 26(3) which stipulates if erection or execution of the work is carried out in breach of the Rule, it would be deemed to be in contravention of the 1980 KMC Act and Rules and shall be dealt with accordingly. Hence, barring the works listed under Rule 3(2), if a “building” – or even a “part” of it is raised, prior sanction under section 392 or compliance with the provisions of section 393 is mandatory. Therefore, in view of sections 392 and 393 in order to raise a building or a part of it or in making any addition thereto, prior sanction is mandatory. Therefore, in view of sections 392 and 393 in order to raise a building or a part of it or in making any addition thereto, prior sanction is mandatory. With regard to second issue, it is clear from a reading of sub-section (5) of section 2 that even a “part of a building” comes within the inclusive definition of “building”. Going by the definition, it is clear statute does not make any distinction between a minor building and a major building or a major construction and a minor construction. With regard to third issue it is to be noted that the title of section 400 indicates that the said provision is with regard to passing of an “Order of demolition and stoppage of buildings and works in certain cases and appeal”. During hearing the learned advocates appearing for the person responsible in raising the construction submitted that the word “may” used in section 400(I) authorises the Municipal Commissioner to exercise discretionary power to regularise those unauthorised constructions which do not affect the building Rules and Regulations and which are not major in nature. To appreciate the issue, let section 400(1) be read and scanned closely. Under section 400(1) where erection of any building or execution of work has commenced or is completed in violation of the sanction granted or the statute and the Rules, it is stipulated that “the Municipal Commissioner may,” “make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed……” (emphasis supplied) which is “in addition to any other action that may be taken under this Act.” It is noteworthy that as section 400(1) creates an obligation and mandates the Municipal Commissioner to demolish the building raised without sanction, the word “may” has to be read as ‘shall’. The authority to exercise discretion is absent. It is made clear as such power is “in addition to any other action that may be taken under this Act”, meaning thereby the Commissioner is authorised to initiate action under sections 610 and 619A, as correctly contended by Mr. Alok Kumar Ghosh, learned advocate for the Corporation. The authority to exercise discretion is absent. It is made clear as such power is “in addition to any other action that may be taken under this Act”, meaning thereby the Commissioner is authorised to initiate action under sections 610 and 619A, as correctly contended by Mr. Alok Kumar Ghosh, learned advocate for the Corporation. The argument on behalf of the petitioners that grant of opportunity for showing cause under section 400(1) presupposes that in appropriate cases direction can be issued for regularisation by exercising discretion, cannot be accepted if compared to section 400(8). While section 400(8) deals with those cases where deviation or contravention are grave enough to warrant “immediate action” after recording the reasons in writing to prevent arbitrariness, section 400(I) deals with those set of cases where proceedings can be initiated by issuing show cause notice and after being satisfied about violation, demolition can be effected. It is explicit from a reading of the first proviso to section 400(I) which mandates that “no order of demolition shall be passed” unless an opportunity to show cause is granted, meaning thereby that after complying with the principles of natural justice and after being satisfied that construction was raised bereft of prior sanction or in violation of the sanctioned plan, the order of demolition is to be passed. Thus in view of the specific and unambiguous language of section 400(1) it is clear that statute does not authorize the Municipal Commissioner to direct retention or regularising a building or a part of it raised unauthorisedly. With regard to the fourth issue, from a perusal of the provisions of the 1980 KMC Act it is clear that 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 or a part of it 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 makes the law abundantly clear. 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 makes the law abundantly clear. That 1980 KMC Act does not confer authority on the Municipal Commissioner to pass an order regularising an unauthorised construction is apparent, if compared to section 413A, the only statutory provision which confers discretion on the authority to regularise such buildings constructed by persons displaced from East Pakistan (now Bangladesh) or their successors on certain categories of land and if those are “completed in conformity with the existing building rules of the Corporation”. The opening words in section 413A “Notwithstanding anything contained in this chapter or elsewhere in this Act……” make it amply clear that save and except in cases of those category of buildings, the authorities have no jurisdiction to pass an order directing regularisation or retention of a construction raised unauthorisedly. Though under Rule 18, in case of delay in grant of sanction or refusal of a plan, the petitioner has a remedy to make a representation before the Mayor, however, Sub-Rule 3 of the said rule makes it clear that under no circumstances the provisions of section 392, the cornerstone of the statutory framework, can be violated. It is also to be noted that 1980 KMC Act does not contain provision similar to section 208 of the West Bengal Municipal Act, 1993 granting deeming sanction if the Board of Councillors defaults in according sanction to a plan. Rather, in no uncertain language section 208 postulates “that nothing in this section shall be deemed to have permitted the applicant contravene any of the provisions of the Act or of the rules…..”, meaning thereby prior sanction under section 204 of the 1993 Act, which is pari materia to section 392 of 1980 KMC Act, is mandatory. Such being the law, any order passed by the Municipal Commissioner or his delegate directing post facto regularization of a building erected without sanction, even on payment of fees or fine or both is illegal as it shall render sections 392 and 393 otiose. Such being the law, any order passed by the Municipal Commissioner or his delegate directing post facto regularization of a building erected without sanction, even on payment of fees or fine or both is illegal as it shall render sections 392 and 393 otiose. The principles of law in Purusottam v. Ratan Lal: AIR 1972 Calcutta 459, wherein the Full Bench while considering the provisions in section 414 of the Calcutta Municipal Act, 1951 held that the Municipal authorities had the power to exercise direction, are not applicable to the cases in hand as the Municipal Commissioner has been divested of such power in view of section 635 of the Kolkata Municipal Corporation Act, 1980 repealing the 1951 Act. The judgment in Kolkata Municipal Corporation vs. Gopal Lal Bhatter: 2011 (3) CLJ 167 , wherein the “real issue” was “whether the Kolkata Muncipal Corporation Authority was justified in demanding the retention charges for the unauthorized construction and for sanction of the same on application of a penal multiplier to the usual fees”, (paragraph 4) is not applicable as therein Court had no occasion to consider whether 1980 KMC Act permits post facto sanction or retention of a building raised without a sanctioned plan. As the grant of statutory sanction prior to construction is one of the basic legal issues and the consent of the landlord in this context is immaterial, the judgment in Sarita Agarwal v. Municipal Building Tribunal (2009) 3 Cal LT 231 (HC) is inapplicable. Though in Sk. Soleman v. State of West Bengal: 2012 (2) CHN 83 the Division Bench held “Once the demolition order was passed under section 400(2) of said Act, there is no other statutory provision under the four corners of the Kolkata Municipal Act, 1980 vesting power to the Municipal Commissioner to allow retention regularization of major unauthorized construction, which have already suffered order of demolition passed by the competent authority,…….”, (paragraph 26) however, the attention of the Court was not drawn to the statutory provisions under Chapter XXII of the 1980 KMC Act, such as sections 392, 393, 400(1) and (8) which make it explicit that there is no provision for regularizing an unauthorised construction – be it called minor or major, at any stage of the proceedings. In view of the clear statutory framework, the principles of law laid down in Umed v. Raj Singh: AIR 1975 SC 43 , in M/s/ Rajatha Enterprises v. S.K. Sharma: AIR 1989 SC 860 , in AI Champdany Industries Ltd. v. Official Liquidator: (2009) 4 SCC 486 and Priyanka Estates Internal (P) Ltd. v. State of Assam: (2010) 2 SCC 27 are not applicable. The judgment in M/s.. Land and Bricks and Entertainment v. State of West Bengal: 1991(2) CLJ 217 is inapplicable for similar reasons. However, I am in respectful agreement with the law laid down in paragraph 8 of the judgment in H.C. Pvt. Ltd. v. CMC: 2002(4) CHN 592 holding “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:……..”. “Similarly neither sub-section (1) of section 400, nor any other subsection 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:….”. The judgment in Suresh Estates (P) Ltd. v. Municipal Corporation of Greater Mumbai: (2007) 14 SCC 439 does not apply to the cases in hand as therein under Rule 10(2) of the D.C. Rules the authorities were conferred with the jurisdiction to exercise discretion. The principles of law laid down Bhikhubhai Vithlabhai Patel v. State of Gujarat: (2008) 4 SCC 144 dealing with the Gujarat Town Planning and Urban Development Act, 1976 are inapplicable in view of section 400(1) of the 1980 KMC Act. Therefore, as I find that the concept of post facto sanction or regularization is alien to the provisions of the 1980 KMC Act, any “building” or a “part” of it erected without sanction of the Municipal Commissioner is illegal. Therefore, as I find that the concept of post facto sanction or regularization is alien to the provisions of the 1980 KMC Act, any “building” or a “part” of it erected without sanction of the Municipal Commissioner is illegal. Hence, as the language in sections 392 and 393 is clear and explicit, regularizing an unauthorized construction even on payment of fees or fine or penalty, as contended, is contrary to 1980 KMC Act. Thus, in view of the mandate in sections 392 and 393, any Rule or notification or order or circular or budgetary provision issued or made by the Corporation which speaks of post facto sanction or regularization of a “building” or a “part 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. Accordingly the Circular No. 37 of 2010-2011 permitting regularisation of unauthorised construction, relied on by the KMC authorities while adjudicating some of the matters, is patently de hors the provisions of law and is thus set aside and quashed. With regard to WP No. 7871 (W) of 2014, the question is whether the provisions of the 1980 HMC Act confer authority on the Commissioner of the Howrah Municipal Corporation to regularise an unauthorised construction. In order to answer the issue, it is appropriate to refer to the relevant portion of section 177 of the 1980 HMC Act, which is as follows:- “177. In order to answer the issue, it is appropriate to refer to the relevant portion of section 177 of the 1980 HMC Act, which is as follows:- “177. Order of demolition or stoppage of buildings and works.- (1) Where the erection of any building or the execution of any work in pursuance thereof has been commenced, or is being carried on, or has been completed without or contrary to the sanction or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the 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 stopped or demolished or such addition or alteration thereto be made as the Commissioner considers necessary, by the person at whose instance the erection or the work has been commenced, or is being carried on, or has been completed: Provided that no order under this provision shall be made unless such person has been given a reasonable opportunity of being heard in accordance with such procedure as may be prescribed. (2) The Commissioner may make an order under sub-section (1), notwithstanding the fact that the assessment of such building has been made for the levy of the [property tax] on lands and buildings.” It is to be noted that by notification dated 15th February, 2011 issued by the O.S.D and Ex-Officio, Special Secretary to the Government of West Bengal, the provisions of the Kolkata Municipal Corporation Building Rules, 2009 have been made applicable, mutatis mutandis, the Howrah Municipal Corporation. The said notification is as under:- “NOTIFICATION No.43/MA/O/C-4/1A-5/2010 Dated, Kolkata, the 15th day of February, 2011. WHEREAS building activities within the jurisdictional limits of Howrah Municipal Corporation, constituted under the Howrah Municipal Corporation Act, 1980 (West Ben. The said notification is as under:- “NOTIFICATION No.43/MA/O/C-4/1A-5/2010 Dated, Kolkata, the 15th day of February, 2011. WHEREAS building activities within the jurisdictional limits of Howrah Municipal Corporation, constituted under the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980) (hereinafter referred to as the said Act), have increased considerably; AND WHEREAS with the provisions of the existing building rules it is not possible for the Howrah Municipal Corporation to regulate properly the matters related building activities; NOW, THEREFORE, in exercise of the powers conferred by sub-section (4) of section 215 of the said Act the Governor is pleased hereby to specify that the provisions of the Kolkata Municipal Corporation Building Rules, 2009 (hereinafter referred to as the said rules) shall be made applicable, mutatis mutandis, the said Corporation.” It is explicit from a reading of section 177 that power has been conferred on the Commissioner not only to issue notice for cessation of work to prevent unauthorised construction but also to pass order of demolition or to pass order for “addition or alternation” to be done by the person responsible in raising construction in order to bring the construction in consonance with the plan sanctioned. Such powers conferred are “in addition to any other action that may be taken under this Act” meaning thereby the Commissioner is a liberty to initiate action under section 177A of the 1980 HMC Act. Therefore, under the 1980 HMC Act too the Commissioner has no authority or jurisdiction to pass an order for regularising an unauthorised construction even on payment of money, be it called fees or fine or penalty. Thus any order made directing regularisation of an unauthorised building with or without condition or on payment of fees or penalty is arbitrary, without jurisdiction and ex facie illegal. The position of law is made clear as under section 177(2) even assessment of such land and building for levy of property tax cannot regularize or legalise an unauthorized construction. That apart the application of the Kolkata Municipal Corporation Building Rules, 2009 from 15th February, 2011, as discussed in this judgment hereinbefore, makes it abundantly clear that no construction whatsoever can be raised unless prior sanction is granted by the Commissioner, Howrah Municipal Corporation. That apart the application of the Kolkata Municipal Corporation Building Rules, 2009 from 15th February, 2011, as discussed in this judgment hereinbefore, makes it abundantly clear that no construction whatsoever can be raised unless prior sanction is granted by the Commissioner, Howrah Municipal Corporation. Even during construction if “internal alteration” or “external deviation” is sought to be made, provisions of Rule 26 have to be adhered to, failing which it would, under Rule 26(3), be deemed to be in contravention of the provisions of the Statute and Rules. Thus, as 1980 KMC Act, 1980 HMC Act and the Rules do not permit post facto sanction of an unauthorised construction, if orders are passed for retention even on payment of fine or penalty or fees it cannot make the structure valid or regular or legal. Such a building will always remain irregular and unauthorised in the eye of law. That scarcity of land or crunch of space or moral point or sympathy cannot be a reason for allowing retention or regularisation of an unauthorised construction, is evident from the law laid down in the judgment of the Apex Court in Dipak Kumar Mukherjee v. Kolkata Municipal Corporation: (2013) 5 SCC 336 , particularly in paragraphs 15, 20, 21, 24, 25 and 26 thereof, wherein while allowing the appeal of the complainant, it was held “In the prevailing scenario, the representative of Respondent 7 might have thought that he will be able to pull strings in the power corridors and get an order for regularisation of the illegal construction but he did not know that there are many mortals in the system who are prepared to take the bull by horn and crush it with iron hand”. (paragraph 24). In a similar situation, the Apex Court, in Esha Ekta Apartments Coop. Housing Society Ltd v. Municipal Corporation of Mumbai: (2013) 5 SCC 357 while accepting the contention of the learned Attorney General that regularisation of buildings would tantamount to violation of DC Rules and taking note of the judgment in Dipak Kumar Mukherjee (supra), had dismissed the appeals. In a similar situation, the Apex Court, in Esha Ekta Apartments Coop. Housing Society Ltd v. Municipal Corporation of Mumbai: (2013) 5 SCC 357 while accepting the contention of the learned Attorney General that regularisation of buildings would tantamount to violation of DC Rules and taking note of the judgment in Dipak Kumar Mukherjee (supra), had dismissed the appeals. I find the KMC authorities have not followed the principles of law laid down in Lipika Das vs. Kolkata Municipal Corporation: (2012) 4 WBLR (Cal) 483 wherein while interpreting sections 392 and 393 of the 1980 KMC Act, inter alia, it was held that prior sanction for raising a building is mandatory and regularizing an unauthorized construction on payment of fees, fine or penalty is contrary to the statutory provisions. The ratio laid down in the judgment in Lipika Das (supra) stands inasmuch as the appeal preferred by the writ petitioner, being APO 418 of 2012, has been disposed of on 25th February, 2014 on a ground different from the one on which Court had disposed of the matter. In the said appeal, I find, the Division Bench was concerned with the subsequent development and disposed of the appeal on that ground alone without either affirming or differing from the view taken by me. Since Statutes and Rules totally rule out exercise of discretion for regularisation of an illegal structure, it is appropriate to refer to the principles of law laid down in paragraph 73 of the judgment in M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu: (1999) 6 SCC 464 wherein it was held that “Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles”. Now in the light of the law discussed, let the writ petitions be considered. WP 3583(W) of 2014, M/s. K.C Mookherjee & Sons and Ors. Vs. Kolkata Municipal Corporation and Ors. The relevant portion of the impugned order dated 29th April, 2013 passed by the Special Officer (Building), Kolkata Municipal Corporation is as under:- “This demolition proceeding was brought against one Narsingh Jaiswal of premises No. 27, Nirmal Chandra Street. WP 3583(W) of 2014, M/s. K.C Mookherjee & Sons and Ors. Vs. Kolkata Municipal Corporation and Ors. The relevant portion of the impugned order dated 29th April, 2013 passed by the Special Officer (Building), Kolkata Municipal Corporation is as under:- “This demolition proceeding was brought against one Narsingh Jaiswal of premises No. 27, Nirmal Chandra Street. The departmental allegation against him is that he during reconstruction of roof made some unauthorised constructions like raising of height towards the Western side room at 1st floor, one additional room at 2nd floor and one toilet at 3rd floor beyond the sanctioned plan. Rules violated are 62, 62, 62, 70, 133 & 134. Hence, this demolition proceeding. The case of the P.R. is that the allegation is undisputed. Retention of the unauthorised constructions was prayed for….. ….During hearing before me the P.R. was physically present and admitted the unauthorised constructions. He also did not challenge the contents of the precis as well as the demolition sketch plan….. I have gone through the precis as well as the demolition sketch plan. I do not find any cogent reason to disbelieve those two unchallenged departmental documents…. ….Regarding the violation of building rules I find that building rule 62 was violated because width of the front open space is Nil instead of 2.0 mt. Building rule 62 was violated because width of the back space is Nil instead of 4.0 mt. Building rule 62 was violated because width of the side spaces are Nil instead of 1.50 mt. & 2.50 mt. respectively. Building rule 70 was violated because ground coverage is 100%. Building rules 133 & 134 were violated as the structural stability, quality of materials used and workmanship are not known. ….This forum delegate of a Municipal Commissioner has got the necessary discretion power not to order for demolition in each and every case of unauthorised constructions of course on finding sufficient cause. Building rules 133 & 134 were violated as the structural stability, quality of materials used and workmanship are not known. ….This forum delegate of a Municipal Commissioner has got the necessary discretion power not to order for demolition in each and every case of unauthorised constructions of course on finding sufficient cause. It is submitted by the P.R. that he has raised the height of the Western side room at 1st floor and also constructed one room at 2nd floor and one toilet at 3rd floor along with some internal deviations during reconstruction of roof for better accommodation of his big family as the available space was inadequate and he had no commercial motive behind such constructions which do not obstruct air and light to the neighbouring people…..Mere apprehension that the building may collapse at any time being an old one is not enough to pass an adverse order against the P.R. In my view the constructions so far made are not so grave and serious and it may not cause any obstruction to the complainants in running their business. The infractions of building rules can not be said to be major in nature. I further find that such constructions were made without infringing the height, F.A.R. etc…..I like to refer a decision reported in AIR 2007 S.C. page 38…...So, considering all the above facts and circumstances I am of the view that there is sufficient cause in favour of the P.R. for not passing any order for demolition and allowed to retain the same of course subject to comply with certain preconditions and I believe that this will meet the ends of justice….” (Emphasis supplied) Though in the first paragraph of the order dated 29th April, 2013, it has been mentioned that there has been unauthorized construction and Rules have been violated and though it has been recorded that the authority did not find any cogent reason to disbelieve the two unchallenged departmental documents and though the person responsible, that is the private respondent no.5, had admitted raising such illegal construction, yet order was passed directing regularization of the unauthorized construction on the ground that such construction was made without infringing the height, FAR etc. Since, prior sanction under section 392 is mandatory it is immaterial whether there has been infringement of height or FAR. Since, prior sanction under section 392 is mandatory it is immaterial whether there has been infringement of height or FAR. The judgment in Muni Suvrat-Swami Jain S.M.P. Sangh vs. Arun Nathuram Gaikwad and Ors: AIR 2007 SC 38 , relied on the in the order, is not applicable as therein Apex Court was principally considering the provisions contained in section 351 of the Mumbai Municipal Corporation Act, 1888 which are different from the provisions contained in the 1980 KMC Act which do not permit regularization of construction without sanction. Therefore, that part of the order dated 29th April, 2013 passed directing regularisation of unauthorized construction on fulfillment of certain conditions, including payment of charges, is set aside and quashed. The writ petition is allowed. The Kolkata Municipal Corporation is directed to refund the retention charges, if deposited, by the respondent no.5 forthwith. Since admittedly unauthorised construction was raised, the Municipal Commissioner is directed to demolish the unauthorised construction within four weeks from the date of presentation of a copy of the certified copy of this order and the cost of such demolition shall be recovered from the private respondent no.5. In the facts and circumstances the private respondent no.5 is directed to pay Rs.5100/- as costs to the petitioners. W.P. 14557 (W) of 2012 Ghanashyam Das Vs. The Kolkata Municipal Corporation and Ors. The relevant portion of the impugned order dated 16th May, 2012 passed by the Executive Engineer (Civil) Building Department, Borough II, Kolkata Municipal Corporation is set out hereinbelow:- “…..The private respondent submitted that there is an existing plan approved by Director of Factories Govt., of West Bengal vide plan no. 75 dt. 04/02/2004. It was admitted that there is no Sanction Building Plan of KMC. It is further submitted that all adequate protection has been taken for additional construction and in support of such contention a structural Stability Certificate by Empanelled Structural Engineer Mr. Rupak Kr. Basak (1/96) has been submitted which is kept in the file. It is further submitted that he has already submitted requisite D-sketch plan for regularization of the said construction before the KMC officials….. The site was inspected by the undersigned. I have perused the documents and heard the parties. Rupak Kr. Basak (1/96) has been submitted which is kept in the file. It is further submitted that he has already submitted requisite D-sketch plan for regularization of the said construction before the KMC officials….. The site was inspected by the undersigned. I have perused the documents and heard the parties. It is an admitted fact that there is no Sanction Building Plan of the KMC in respect of 35/5, Canal West Road, but there is a plan duly approved by the Director of Factories, Govt. of West Bengal. From the copy of said approved plan submitted by the respondent no.6 in presence of petition it appears from a section that southern side wall is of 22’0” (Appro.) height. It is an admitted position that there is a new construction over and above the said 22’0” (Appro.) height wall for an additional height of about 8’-6” (Appro.). At the time of inspection it revealed that the said wall is not a common wall between the two premises have separate periphery/boundary wall through there is almost negligible gap between the two different walls. On inspection it revealed that the petitioner also admittedly without any sanction plan made construction on this side of the building along with its boundary wall which is adjacent to the said premises no. 35/5, Canal West Road. The inspection further reveals that at 35/5, Canal West Road there is certain other construction inside the premises on the said wall. The certificate of Empanelled Structural Engineer no. (1/96) confirms that the newly built part of the wall is safe and stable considering all possible loads as per National Building Code 2005. It was also certified that the said wall remains vertical which is against the allegation of the petitioner that it is leaning towards his premises. The certificate of Empanelled Structural Engineer no. (1/96) confirms that the newly built part of the wall is safe and stable considering all possible loads as per National Building Code 2005. It was also certified that the said wall remains vertical which is against the allegation of the petitioner that it is leaning towards his premises. So considering the above facts and circumstances, I am of the view that there is sufficient cause in favour of private responding for not passing any order for demolition and allowed to retain the same subject to comply with certain conditions mentioned below and believe that this will meet the ends of justice…..” (Emphasis supplied) As seen, though it is an admitted fact that there has been construction without having prior sanction from the Municipal authorities, however, order dated 16th May, 2012 was passed directing regularization of the unauthorized construction on the fulfillment of certain condition, including payment of charges, as the petitioner had submitted a “D-sketch plan for regularization of the said construction before the KMC officials”. Since such regularization is illegal under the 1980 KMC Act, that part of the impugned order directing retention of the unauthorised construction is set aside and quashed. The writ petition is allowed. Since admittedly there is no sanctioned building plan granted by the KMC, the Municipal Commissioner, Kolkata Municipal Corporation is directed to demolish the unauthorised construction within four weeks from the date of presentation of a copy of the certified copy of this order and the cost of demolition shall be recovered from the private respondent no.6. In the facts and circumstances the petitioner is entitled to costs of Rs. 5100/- to be paid by the respondent no.6. WP. 6960 (W) of 2014, Ajit Kumar Mohalanobis & Anr. Vs. The Kolkata Municipal Corporation & Ors. The relevant portion of the impugned order dated 6th January, 2014 passed by the Deputy Chief Engineer (Building) South, Kolkata Municipal Corporation is set out hereinbelow:- “This demolition proceeding was brought against Sri Anjan Chakraborty of Premises No. 10J, Atal Sur Road. The departmental allegation is that a G.+ III Storied residential Building which deviates from B.P. Plan No. 2012070227 dt. 11.10.12, projected roof slab from 1st floor to 3rd floor. Building Rules violated are 62, 133 & 134 of building Rule 2009 of The Kolkata Municipal Corporation Act 1980. Hence this demolition proceeding. The departmental allegation is that a G.+ III Storied residential Building which deviates from B.P. Plan No. 2012070227 dt. 11.10.12, projected roof slab from 1st floor to 3rd floor. Building Rules violated are 62, 133 & 134 of building Rule 2009 of The Kolkata Municipal Corporation Act 1980. Hence this demolition proceeding. The case of the P.R. is that the allegation is undisputed. Retention of the unauthorised construction was prayed for. There is no Complainant. During hearing before the undersigned, the P.R. Sri Anjan Chakraborty was present and admitted the Unauthorised Construction and prayed for regularisation of the same…. ….Now, let me consider the Prayer of the P.R. for allowing retention of the impugned unauthorised construction. This forum as a delegate of Municipal Commissioner has got the necessary discretionary power as per Municipal Commissioner Circular No. 37 of 2010-11 on 13.10.10 not to order for demolition in each and every case of unauthorised construction of course on finding sufficient cause. In the present case I find that the deviated Unauthorised Constructions are not so grave and serious and the infractions of building rules for the same, to my mind, are minor in nature. It is prayed by the P.R. for regularisation of the same. So, considering the above facts and circumstances, I am of the view that there is sufficient cause in favour of the P.R. for not passing any order for demolition and allowed to retain the same of course subject to comply with certain preconditions and I believe that this will meet the ends of justice and equity…..”. (Emphasis supplied) Though it has been found there has been deviation from the sanctioned plan from the first floor to third floor and 2009 Building Rules have been violated and the petitioner had admitted that there has been unauthorized construction, yet surprisingly, order directing regularization of the illegal construction was passed holding “that the deviated Unauthorized Construction are not so grave and serious and infractions of building rules for the same, to my mind, are minor in nature”. Though, a complaint was lodged before the Mayor, Kolkata Municipal Corporation and DG Building 2, Building Department, Kolkata Municipal Corporation on 12th August, 2013, however, while passing the order, KMC ignored it. Though, a complaint was lodged before the Mayor, Kolkata Municipal Corporation and DG Building 2, Building Department, Kolkata Municipal Corporation on 12th August, 2013, however, while passing the order, KMC ignored it. Therefore, as regularization of an unauthorized construction is impermissible, that part of the order directing regularization of the unauthorized construction on compliance on certain conditions, including payment of retention charges, is set aside and quashed. The writ petition is allowed. Hence, the Corporation is directed to refund the sum of Rs.42493/- deposited by the private respondent no.7, the person responsible, as charges for regularization, within four weeks from the date of presentation of a copy of the certified copy of this order. Since the private respondent no.7 had admittedly raised unauthorised construction, the Deputy Chief Engineer (Building) South, KMC is directed to demolish the said construction within four weeks from the date of presentation of a copy of the certified copy of this order and cost of such demolition shall be recovered by the KMC from the said private respondent. In the facts and circumstances the petitioner is entitled to costs of Rs.5100/- to be paid by the respondent no.7. W.P. 934 (W) of 2014, Sri Dibyendu Dhar Vs.The Kolkata Municipal Corporation and Ors. The relevant portion of the impugned order dated 31st May, 2013 passed by the Special Officer (Building), Kolkata Municipal Corporation is set out hereunder:- “….The details of unauthorised constructions are as follows:- (1) Inserted 16 new R.C.C columns from ground floor to 1st floor level. (2) Reconstructed R.C.C. slab after demolishing the L.T. roof towards the Western portion at ground floor with brick masonry work. (3) Extended the roof slab towards the North-East corner at 1st floor level and (4) Constructed the new roofed room with brick masonry work over the 1st floor level. All those constructions were made in deviation from reconstruction sanctioned plan vide No. 08/Br.Y/2012 dt. 02.08.2012. Rules violated are 62, 62, 62, 69,70,133 & 134. Hence, this demolition proceeding. The Case of the P.R. is that the allegation is undisputed. Retention of the unauthorised constructions was prayed for. …….Regarding the violation of building rules I find that building rule 62 was violated because width of the front open space is Nil instead of 1.20 mt. Building rule 62 was violated because width of the back space is Nil instead of 2.0 mt. Retention of the unauthorised constructions was prayed for. …….Regarding the violation of building rules I find that building rule 62 was violated because width of the front open space is Nil instead of 1.20 mt. Building rule 62 was violated because width of the back space is Nil instead of 2.0 mt. Building rule 62 was violated because width of the side spaces are Nil & 0.95 mt. Instead of 1.20 mt. Building rule 69 was violated because consumed FAR is 2.201 ins Nil. Building rule 70 was violated because ground coverage is 70.8 instead of 60%. Building rules 133 & 134 were violated as the structural stability, quality of materials used and workmanship are not known….. …..In the present case I find that the deviated unauthorised constructions are not so grave and serious and the infractions of building rules can not be to be major in nature and moreover all such constructions were made within the sanctioned area…….Admittedly it is a dwelling house and it is not being used any other purpose.….As the constructions were made for the own use and occupation of the P.R. and for better living and as there is no malafide intention against such constructions the same may be considered sympathetically on humanitarian ground. In this context I like to refer a decision reported in AIR 2007 S.C. page 38…..So, considering all the ahove facts and circumstances I am of the view that there is sufficient cause in favour of the P.R. for not passing any order for demolition and allowed to retain the same…..” (emphasis supplied) Though it is evident from the first paragraph of the order dated 31st May, 2013 that there has been violation of the sanctioned plan and the Rules and though the Special Officer (Building) did not find cogent reason to disbelieve the departmental documents, in this matter too order was passed directing regularization on the ground of sympathy as it is a dwelling house and has not been used for any other purpose. It is well established principle of law that sympathy cannot be a ground for condoning an illegal act. It is well established principle of law that sympathy cannot be a ground for condoning an illegal act. It is rather strange that though it was found that there has been, inter alia, 16 new RCC columns from ground floor to first floor apart from the other violations, yet the Special Officer (Building) held that “In the present case I find that the deviated unauthorized constructions are not grave and serious and infraction of building rules cannot be said to be major in nature and moreover all such constructions were made within the sanctioned area”. The judgment in Muni Suvrat-Swami Jain S.M.P. Sangh (supra) relied on, is inapplicable for the reasons already discussed, hereinbefore. Since, as already discussed, the 1980 Act does not make any distinction between a major or minor construction and as statute postulates demolition of an unauthorized construction, be it within or outside the sanctioned area, and as it is well established proposition of law that sympathy cannot be a ground for condoning an illegal act, the conclusion in the impugned order for retention and/or regularization of the unauthorised construction on compliance on certain conditions cannot be sustained and is thus set aside and quashed. The writ petition is allowed. Since admittedly the private respondent has raised unauthorised construction, the Municipal Commissioner, KMC is directed to demolish the said illegal construction within four weeks from the date of presentation of a copy of the certified copy of this order and shall recover the cost of such demolition from the private respondent no.7. In the facts and circumstances the petitioner is entitled to costs which assessed at Rs.5100/- to be paid by the said private respondent. W.P. 8951 (W) of 2014, Smt. Rita Dey Vs. The Kolkata Municipal Corporation and Ors. The relevant portion of the impugned order dated 18th August, 2010 passed by the Special Officer (Building), Kolkata Municipal Corporation is set out hereinbelow. “The Departmental allegations as I find in this case from the precis and D. sketch Plan are that the Person Responsible (P.R.) made unauthorised constructions i.e. – R.C.C. Slab (portion) including covering open terrace- I at 2nd floor level after demolishing the portion of asbestos shed by raising new brick walls over existing one without sanction. “The Departmental allegations as I find in this case from the precis and D. sketch Plan are that the Person Responsible (P.R.) made unauthorised constructions i.e. – R.C.C. Slab (portion) including covering open terrace- I at 2nd floor level after demolishing the portion of asbestos shed by raising new brick walls over existing one without sanction. For all these they observed the Building Rules in the following manner:- 1) Rule 62 : 1-2 M. Back space has been left instead of 2.0 M. 2) Rule 62 : Nil side space has been left instead of 1.2 M.on the Western side. 3) Rule 69 : The Floor Area Ratio is 1.76 (approx.) instead of 1.25. 4) Rule 133 & 134 : Structural Stability, quality of materials used and workmanship are unknown……. ……..P.R. is allowed to retain the construction done without sanction on payment of charges and fees……” (Emphasis supplied) It is evident from the first paragraph of the impugned order dated 18th August, 2010 passed by the Special Officer (Building), that there was unauthorized construction. Though there has been violation of Rules 62 and 69 of the Rules and structural stability, quality of material used and workmanship were found to be unknown, yet the person responsible, that is the private respondent no.4 was permitted to retain the unauthorized construction. In appeal from the said order, being B.T. No. 21 of 2011, preferred by the petitioner, the Tribunal without considering the provisions contained in the 1980 KMC Act, particularly sections 392 393 and 400 and without considering the applicability of the judgment in Purusottam (supra) which was delivered considering the provisions contained in the 1951 Act, had dismissed the appeal by holding that “The violation as appears in this case is not of serious nature”. Therefore, that portion of the order dated 18th August, 2010 directing retention the unauthorised construction and the appellate order cannot be sustained and are set aside and quashed. The writ petition is allowed. Since it is an admitted fact the private respondent nos. 3 and 4 have raised an illegal construction, the Municipal Commissioner, KMC shall demolish such construction within four weeks from the date of presentation of a copy of the certified copy of this order and shall recover the cost of such demolition from the respondent nos. 3 and 4. Since it is an admitted fact the private respondent nos. 3 and 4 have raised an illegal construction, the Municipal Commissioner, KMC shall demolish such construction within four weeks from the date of presentation of a copy of the certified copy of this order and shall recover the cost of such demolition from the respondent nos. 3 and 4. In the facts and circumstances the petitioner is entitled to costs which is assessed at Rs.5100/- to be paid by the respondent nos. 3 and 4. W.P. 251 of 2014, Eskag Sanjeevani Pvt. Ltd. Vs. The Kolkata Municipal Corporation & Ors. The relevant portion of the impugned order dated 16th July, 2013 passed by the Special Officer (Building), Kolkata Municipal Corporation is set out hereinbelow:- “This demolition proceeding was brought against one Anil Kumar Agarwal (Eskag Sanjeevani Pvt. Ltd.) of premises No. P-48, Khirod Vidya Vinod Avenue. The departmental allegation against him is that he made some unauthorised constructions at the above premises. The details of unauthorised constructions are as follows:- (1) Construction of 4th floor with brick walls and fibre shed over it supported by iron structure. (2) Covering the mandatory open spaces at ground floor as well as the 1st floor by R.C.C. roofed and tin shed respectively. (3) Construction of brick partition walls at basement and ground floor. All those constructions were made in deviation from B.S. plan vide No. 47(B-I) dt. 25.10.1990. Rules violated are 55, 56, 57, 61, 62, 68, 95, 109 & 110 and u/S. 416 of KMC Act’ 80. …..At the same time he has prayed for retention of the building in the present forum. There is no private complainant in this case. ….I do not find any cogent reason to disbelieve those two departmental documents and I hold that the P.R. is responsible for constructing the unauthorised construction as well as the unauthorised change of use. Regarding the violation of building rules I find that building rule 55 was violated because width of the front open space is Nil. Building rule 56 was violated because width of the back space is Nil instead of 5.0 mt. Building rule 57 was violated because width of the side spaces are Nil & 1.20 mt. Instead of 3.50 mt. Building rule 61 was violated because consumed FAR is 3.49 instead of 2.75. Building rule 62 was violated because ground coverage is 443.307 Sqm. Building rule 57 was violated because width of the side spaces are Nil & 1.20 mt. Instead of 3.50 mt. Building rule 61 was violated because consumed FAR is 3.49 instead of 2.75. Building rule 62 was violated because ground coverage is 443.307 Sqm. Instead of 222.304 Sqm. Building rule 68 was violated because required Car parking space is 19 Nos. but provided Nil so there is a shortfall of 19 Nos. Car parking space. Building rule 95 was violated because basement is being used as Doctor’s chamber & Nursing home purpose. Building rules 109 & 110 were violated as the structural stability, quality of materials used and workmanship are not known. Regarding unauthorised change of use the entire building including basement and ground floor converted from residential to Institutional without prior approval of the KMC authority. …...Admittedly the P.R. is in occupation of the hospital where such change of use was made and as such he can not escape from his liability. In my view the constructions so far made are not so grave and serious and the infractions of building rules do not offend neither any inmates nor any public in general and moreover there is no complaint from any corner against such unauthorised constructions alleged to have been made by the P.R. at the above premises further find that such constructions were made within the sanctioned area without disturbing the surrounding people. So, considering the above facts and circumstances I am of the view that there is sufficient cause in favour of the P.R. for not passing any order for demolition and allowed to retain the same of couse subject to comply with certain preconditions and I believe that this will meet the ends of justice. Regarding unauthorised change of use I find that the entire building including basement and ground floor have been converted from residential to hospital. As the hospital is meant for lower and lower middle income group people and it renders services like dialysis and diagnostic test of patients at a very low rate the necessity of such hospital can not be denied. As the hospital is meant for lower and lower middle income group people and it renders services like dialysis and diagnostic test of patients at a very low rate the necessity of such hospital can not be denied. In a ward the public interest is very much involved in the said multi specialty hospital and as such I am inclined to allow such change of use on the moral point of view of course subject to comply with certain preconditions and I believe that this will meet the ends of justice……” (Emphasis supplied) In this matter too, though as evident from the first paragraph of the order dated 16th July, 2013, it was found that there has been unauthorized construction, which included covering the entire 19 car parking spaces and though the Special Officer (Building) did not find any cogent reason to disbelieve the departmental documents and also held the petitioner responsible for unauthorized change of use and though it was also held that “he cannot escape from his liability”, yet it was held that “the constructions so far made are not so grave and serious and the infractions of building rules do not offend neither any inmates nor any public in general”, and direction was issued to allow regularization “on the moral point” as the building is a hospital. Since 1980 KMC Act stipulates that a “building” or “part” of it can be raised after having prior sanction, it is immaterial whether it is a hospital or a school or a residential building or an office. Since admittedly the structure is illegal, there is no question of condoning an unlawful act on the ground of sympathy or “moral point”. Moreover retention of an illegal construction, would not sub-serve the ends of justice as held in the order under challenge. That apart, the writ petition is premature as prior to moving the writ petition no demand for justice was furnished before the Municipal authorities, as stipulated in Rule 20 of the Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution with regard to any grievance. Hence, that part of the order directing regularisation of the unauthorized construction is set aside and quashed. Hence, the writ petition is dismissed. Hence, that part of the order directing regularisation of the unauthorized construction is set aside and quashed. Hence, the writ petition is dismissed. Since admittedly unauthorised construction was raised by the petitioner, the Municipal Commissioner, KMC shall demolish such illegal construction within four weeks from the date of presentation of a copy of the certified copy of this order and the cost of such demolition shall be recovered from the petitioners. In the facts and circumstances, the KMC is entitled to costs which is assessed at Rs.5100/- to be paid by the petitioners. W.P. 3508 (W) of 2014, Anima Rani Dey v. The Kolkata Municipal Corporation and others. The relevant portion of the impugned order dated 19th November, 2013 passed by the Deputy Chief Engineer (Building) South, Kolkata Municipal Corporation is set out hereinbelow:- “This demolition proceeding was brought against Smt. Chaitali Sarkar, C.A. of Smt. Anima Rani Dey (Owner) of Premises No. 158, Rajdanga Naba Pally. The departmental allegation is that (1) Parking space has been converted to Shop & Restaurant (2) On rear open space 2 nos. of W.C. was constructed. (3) 1st floor residential tenement has been converted to Office. (4) One extra floor (at 5th floor) has been constructed for residential use. Building Rules violated are 51,54,56,57, 61,62,86,88,104, 109 & 110 of building Rule 1990 & Sec. 416 of the Kolkata Municipal Corporation Act 1980. Hence this demolition proceeding. The case of the P.R. is that the allegation is undisputed. Retention of the unauthorised construction & Change of use was prayed for. There is no Complainant. During hearing before the undersigned, the P.R. Smt.Chaitali Sarkar was present and admitted the Unauthorised Construction & Change of use and prayed for regularisation of the same. There is no complainant from any neighbour hood. No one raised any question regarding such impugned structure. No one ventilated any grievances for construction of the building which is not hampering the interest of any one. Hence the demolition proceeding under consideration, Now, let me consider the Prayer of the P.R. for allowing retention of the impugned unauthorised construction & Change of use. This forum as a delegate of Municipal Commissioner has got the necessary discretionary power as per Municipal Commissioner Circular No. 37 of 2010-11 not to order for demolition in each and every case of unauthorised construction & change of use of course on finding sufficient cause. This forum as a delegate of Municipal Commissioner has got the necessary discretionary power as per Municipal Commissioner Circular No. 37 of 2010-11 not to order for demolition in each and every case of unauthorised construction & change of use of course on finding sufficient cause. In the present case I find that the deviated Unauthorised Constructions & change of use are not so grave and serious and the infractions of building rules for the same, to my mind, are minor in nature. It is prayed by the P.R. for regularisation of the same. So, considering the above facts and circumstances, I am of the view that there is sufficient cause in favour of the P.R. for not passing any order for demolition and allowed to retain the same of course subject to comply with certain preconditions and I believe that this will meet the ends of justice and equity…..” (Emphasis supplied) Though the person responsible conceded that besides change of use, there was conversion of parking space into shop and restaurant, on open rear space 2 WCS were constructed and one extra floor was constructed, yet the structure was directed to be retained. Though it is the bounden duty of the Municipal Commissioner to ensure that prior sanction is obtained, yet such direction was issued for retention of the structure on the ground of absence of complainant. In view of sections 392, 393 and 400 as there is no scope for the Municipal Commissioner to exercise discretion and to regularize an unauthorized construction of a ‘building’ or even a ‘part’ of it, any bill raised by the Municipal authorities demanding charges for regularization of unauthorized construction is illegal. Hence, that part of the impugned order dated 19th November, 2013 directing retention or regularization is set aside and quashed. The writ petition is dismissed. Consequently the bill containing the charges for regularisation of unauthorized construction is also illegal and shall not be acted upon by the KMC. As admittedly construction was raised unauthorisedly, the Municipal Commissioner KMC is directed to demolish the illegal construction within four weeks from the date of presentation of a copy of the certified copy of this order and shall recover the cost of such demolition from the petitioner. In the facts and circumstances the KMC entitled to costs which is assessed at Rs.5100/- to be paid by the petitioner. WP. In the facts and circumstances the KMC entitled to costs which is assessed at Rs.5100/- to be paid by the petitioner. WP. No 7871 (W) 2014 , Smt. Shila Das vs. Howrah Municipal Corporation & Ors. It is to be noted that 1980 HMC Act, particularly sections 177, 177A and 179 thereof, and the Kolkata Municipal Corporation Building Rules, 2009, which have been made applicable to the buildings erected within the jurisdiction of the HMC by notification dated 15th February, 2011, postulate that no construction shall be raised without having prior sanction and/or building permit from the Commissioner, HMC. As it has been held in this judgment post facto regularization of an unauthorized construction even on payment of charges is illegal as it would render the provisions in the 1980 HMC Act and the Rules otiose, the action of the HMC in regularizing the unauthorized construction on payment of Rs. 12720/- is ex facie without jurisdiction and illegal. It is noteworthy that the order passed by the Division Bench in MAT 1179 of 2012 directing the authorities to consider the representation, does not mean the construction could be regularised ignoring the law. Hence, the order directing regularisation on payment of charges by the authorities of the HMC is set aside and quashed. The writ petition is allowed. The Commissioner is directed to refund the said sum of Rs. 12720/- forthwith to the private respondent no.4 who had raised the illegal construction. Since there is no dispute that unauthorised construction was raised by the private respondent no.4, the Commissioner HMC is directed to demolish said illegal construction within four weeks from the date of presentation of a copy of the certified copy of this order and shall recover the cost of such demolition from the private respondents. In the facts and circumstances the petitioner is entitled to costs of Rs.5100/- to be paid by the private respondent no.4. In the facts and circumstances the petitioner is entitled to costs of Rs.5100/- to be paid by the private respondent no.4. As seen from the impugned orders, though statutory provisions were breached with impunity and there is no statutory provision permitting legalising an unauthorised construction, yet stereotyped and blanket orders were issued by the Special Officers (Building) or by the authorities of the KMC or HMC permitting retention either on the ground that the construction was minor in nature or it was within the FAR or on “moral point” or on the ground it was within the sanctioned area or on the ground that it was a hospital. Though it is immaterial whether there is a complainant and it is the statutory duty of the Municipal authorities to ensure a building is raised in accordance with law, yet in some cases absence of complainant was a ground for passing an order of retention. In other cases regularisation was directed on the basis of a Circular no. 37 of 2010-2011 issued by the Municipal Commissioner, having no statutory support, quashed by this judgment. Little did the quasi judicial authorities realise, that in the absence of statutory provision, the orders allowing retention or regularisation, even on payment of money – be it called fee or penalty or charges – is a nullity. In the absence of legal sanction even acceptance of municipal taxes cannot validate such building or a part of it, and it continues to remain illegal. It is clear from the trend of cases that violation of the building rules and the so-called legalising an unauthorised construction have virtually become a rule and raising constructions with prior building permit is an exception. Therefore, I hope and trust that with the law as discussed, the authorities of KMC and HMC shall endeavor to give purposeful interpretation of the Statute and the Rules and shall follow the statutory provisions in their letter and spirit for planned development of the cities of Kolkata and Howrah.