JUDGMENT : Harish Tandon, J. The order dated March 7, 2013 passed by the Special Officer (Building) in a demolition proceeding initiated under Section 400 (1) and 416 of the Kolkata Municipal Corporation Act, 1980 refusing to pass an order for demolition of an unauthorized construction and permitting the change of user upon payment of the regularisation fees is challenged in this writ petition by the complainant/petitioner. 2. The facts are, more or less, admitted and the respective counsels have addressed the issues on the question of law. 3. Before proceeding to deal with the issues evolved from the respective submissions, it would be apt to narrate the necessary facts for such purposes. The petitioner is the owner of Premises No. 45, Suhasini Ganguly Sarani, Kolkata-700 025, which is adjacent to the portion of the Premises No. 1, School Row, Kolkata-700 025, being the subject matter of this writ petition. The private respondent, a society, owns the Premises No.1, School Row, Kolkata- 700 025 by a dint of purchase dated 2nd July, 2011. The name of the society is recorded in the assessment record of the Kolkata Municipal Corporation (Corporation). The object of the said society, as would be evident from the memorandum of association, are to promote friendless amongst the population of Calcutta and its sub-urbs, establish educational institution, seba samities and libraries and to establish pharmacies, dispensaries and/or research centre and the property and income to be utilised solely for the promotion of the aforesaid objects. The private respondent carried out a construction at the said premises owned by it which according to the petitioner was in contravention to the Kolkata Municipal Corporation Act, 1980 and the Building rules framed thereunder. The petitioner intimated to the corporation by a letter dated 20th June, 2012 that the private respondent is undertaking an unauthorized and illegal constructions at the said premises and requested for taking an appropriate steps and/or actions for the same. 4. The salient feature of the complaint which could be culled out therefrom are that the private respondent has not provided the space between the two premises and have used and utilised the same for making rooms without any sanctioned plan. 4. The salient feature of the complaint which could be culled out therefrom are that the private respondent has not provided the space between the two premises and have used and utilised the same for making rooms without any sanctioned plan. Since no action was taken on the said complaint, the petitioner filed a writ petition before this Court being W.P. No. 13363 (w) of 2012 which came to be disposed of on 3rd July, 2012, directing the Executive Engineer (Civil Buildings), Borough- VIII of the Corporation to dispose of the matter by passing a reasoned order within eight weeks from the date of the submissions of the certified copy of the said order. The Court further restrained the private respondent from carrying out any constructions at the said premises except the construction of a boundary wall on the ground floor level provided the same is within the permissible limits under the provisions of the said Act and the Building Rules framed thereunder. 5. In course of the hearing, the private respondent produced a sanctioned building plan dated 18th December, 1972 and took the stand that the said constructions are undertaken as per the said sanctioned plan. Subsequently a contempt application was taken out alleging the willful and deliberate violation of the order passed in the said writ petition against the private respondent who alleged to have continued its unauthorized construction at the said premises. A contempt rule was issued on the said contempt application against the private respondent. Ultimately the Executive Engineer (Building) passed an order dated 10th October, 2012 directing the Assistant Engineer VII, Building Department to draw proceeding under Section 400 (1) of the Kolkata Municipal Corporation Act. In the said order, the said authority recorded that the stop work notice was issued upon the private respondent on 25 April, 2012 and the Municipal Guard was also posted therein which was subsequently withdrawn on the basis of the undertaking given by the private respondent. A matter was taken up by the Special Officer (Building) on the initiation of a demolition proceeding which came to be disposed of by the impugned order permitting the regularisation of the unauthorized and illegal construction as well as the change of user upon payment of necessary fees. 6. A matter was taken up by the Special Officer (Building) on the initiation of a demolition proceeding which came to be disposed of by the impugned order permitting the regularisation of the unauthorized and illegal construction as well as the change of user upon payment of necessary fees. 6. The learned Advocate appearing for the petitioner, at the outset, submits that neither the Act nor the Building Rules provides for regularisation of an unauthorized and illegal construction. It is vehemently submitted that the private respondent admitted the said unauthorized construction to have been undertaken at the said premises and prayed for regularisation thereof, which has been allowed by the Special Officer (Building) without any statutory authority. It is strenuously argued that if the authority recorded the positive findings of the alleged violation of the provisions of the said Act, it cannot permit such unauthorized constructions to be retained by regularising it upon payment of the necessary fees. The Council further submits that admittedly, various provisions of the Kolkata Municipal Corporation Building Rules, 1990 are violated which are reflected from the recording made in the impugned order. The Special Officer (Building) have no authority to allow such unauthorized and/or illegal construction to remain in absence of any statutory provisions therefor. To buttress the aforesaid submissions, the reliance is placed upon the Division Bench judgment of this Court in case of Sital Chandra Bodhak v. Howrah Municipal Corporation reported in 2012 (5) CHN (CAL) 146 and a judgment of the Supreme Court in case of Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and Ors., reported in (2013) 5 SCC 336 . 7. The Counsel for the petitioner further submits that in view of the pronouncement of the Apex Court in case of Dipak Kumar Mukherjee (supra), the earlier judgment of the Supreme Court rendered in case of Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad & Ors. reported in AIR 2007 SC 38 , as relied by the Special Officer is distinguishable on facts. According to the petitioner, the Apex Court in case of Muni Suvrat (supra) was dealing a matter where the Municipal Commissioner did not pass any order either for demolition or for retention which cannot be applied in the present fact scenario. reported in AIR 2007 SC 38 , as relied by the Special Officer is distinguishable on facts. According to the petitioner, the Apex Court in case of Muni Suvrat (supra) was dealing a matter where the Municipal Commissioner did not pass any order either for demolition or for retention which cannot be applied in the present fact scenario. To contradict the finding on the change of user, the petitioner submits that the Special Officer (Building) cannot allow the change of user when the prior permission is not sought for and relied upon a judgment of this Court in case of Star Banquets Private Ltd. & Ors. v. Calcutta Municipal Corporation & ors. reported in 2002 (2) CHN 662 . 8. The private respondent submits that the provisions contained under Section 400 (1) of the said Act vest upon a Commissioner, a discretion to demolish the structure or not to demolish the structure and such discretion should not be interfered in a writ jurisdiction and placed reliance upon a judgment of the special bench in case of Purusotam Lalji v. Ratan Lal Agarwala reported in AIR 1972 Cal 459 and a judgment of the Apex Court in case of Corporation of Calcutta v. Mulchand Agarwala reported in AIR 1956 SC 110 . The private respondent audaciously submits that when a discretion is left upon the Municipal Commissioner either to demolish or not to demolish such discretion unless appears to have been exercised on extraneous consideration as opposed to a bonafide one, the writ court should not interfere in exercise of the power of judicial review and placed reliance upon a judgment of the Apex Court in case of Muni Suvrat (supra). The respondent further submits that a regularisation fees is raised on the private respondent in terms of the order passed by the Special Officer (Building) which is already paid and, therefore, the said order should not be interfered with at this stage. 9. In support of the contention that the Municipal Commissioner can regularise the unauthorized construction upon payment of the requisite fees, reliance is placed upon a judgment of this Court in case of ABL International Ltd. & Ors. v. Kolkata Municipal Corporation & Ors. reported in 2006 (4) CHN 499 . 10. Mr. 9. In support of the contention that the Municipal Commissioner can regularise the unauthorized construction upon payment of the requisite fees, reliance is placed upon a judgment of this Court in case of ABL International Ltd. & Ors. v. Kolkata Municipal Corporation & Ors. reported in 2006 (4) CHN 499 . 10. Mr. Dutta, the learned Advocate appearing for the private respondent in his usual fairness submits that the Co-ordinate Bench which delivered a judgment in case of ABL International Ltd.(supra) did not notice the earlier co-ordinate Bench decision rendered in case of M/s Land & Bricks & Entertainments Ltd. & Anr. v. State of West Bengal & Ors; reported in 1991 (2) CLJ 217 wherein it is held that regularisation of an illegal construction on payment of penal fee is contrary to the provisions of the Act and is beyond the competence of the Municipal Commissioner. Lastly it is submitted that the order cannot be said to have been passed on extraneous consideration, as the Special Officer (Building) has assigned the reasons for regularisation of the unauthorized construction as well as the change of user and, therefore, the writ petition is not entertainable. 11. The learned Advocate appearing for the Kolkata Municipal Corporation unhesitatingly adopts the submission of the private respondent so far as the power of discretion vested upon the Municipal Commissioner and the power to impose penal fees to regularise the said unauthorized construction are concerned. Additionally the learned Advocate submits that the Special Officer (Building) recorded the deviation made from the sanctioned plan and have allowed the retention thereof, as the private respondent, a society, have started a medical clinic at the said premises with the pious intention to serve the public at large. 12. Upon hearing the respective submissions, the points appears to have evolved therefrom, is whether the Special Officer (Building) has a power to regularise the unauthorized and/or illegal construction upon payment of fees and also allow the change of user of any building for any purposes other than for which, it was originally sanctioned. 13. Section 400 of the Kolkata Municipal Corporation Act empowers the Municipal Commissioner to make an order for demolition of the building or erection of work if carried out and/or commenced or completed without or contrary to the sanctioned plan. 13. Section 400 of the Kolkata Municipal Corporation Act empowers the Municipal Commissioner to make an order for demolition of the building or erection of work if carried out and/or commenced or completed without or contrary to the sanctioned plan. It would be profitable to quote the provisions contained under Section 400 of the said Act which reads thus: "400. Order 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 to in section 396 or in contravention of any of the provisions of this Act or the rules and the regulations made thereunder, the Municipal Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or the work has been commenced or is being carried on or has been completed within such period, not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to such person, as may be specified in the order: Provided that no order of demolition shall be made unless such person has been given, by means of a notice served in such manner as the Municipal Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made: Provided further that where the erection or the execution has not been completed, the Municipal Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct such person to stop the erection or the execution until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (3)." 14. Section 396 of the said Act relates to the sanction of the erection of a building or the execution of work by the Municipal Commissioner with the approval of the Mayor-in-Council in case any building except residential building, proposed to be erected or re-erected on a plot of 500 sq.mt or less of land or building. In exercise of the Rule making powers under the Act, the Kolkata Municipal Corporation Building Rules, 1990 is framed and came into effect on and from 12th December, 1990. The said Rules contains an exhaustive provisions relating to sanction, refusal, cancellation, commencement of work, deviation during the execution of work, notice of completion and the occupancies certificate apart from other related provisions. Chapter IX of the said rules relates to the open spaces required to be maintained in respect of any building allowed to be erected. Any deviation and/or infraction of the rules providing mandatory spaces to be maintained would attract the penal provision and the Municipal Commissioner may in addition to any other action under the said Act, make an order for demolition of such erection. Deviation of every description does not invite the Municipal Commissioner to order for demolition and sufficient safeguard is made under Rule 25 of the said Rules. Sub-rule 1 of Rule 25 contains a negative word that no deviation from a sanctioned plan shall be made during erection or execution of any work. However, Sub-Section 2 permits the internal alteration within the sanctioned cover space as well as any external deviation beyond the sanctioned cover space which in either case does not violate the provisions of the Act or the Rules made thereunder. Clause 'a' of Sub-Rule 2 of Rule 25 relates to an internal alteration within the sanctioned cover space which does not violate the provisions of the Act or the Rules; provided an information to the Municipal Commissioner by notice in writing along with the certificate from architecture or license building surveyor incorporating the deviation and structural calculation together with the statement relating to the nature and purpose of such deviation is given at least 15 days prior to carrying out such erection and execution of work. Clause 'b' thereof relates to an external deviation beyond the sanctioned cover space which does not violate the provisions of the Act or the Rules requires the submissions of a revised plan incorporating the deviation for obtaining necessary action. Clause 'b' thereof relates to an external deviation beyond the sanctioned cover space which does not violate the provisions of the Act or the Rules requires the submissions of a revised plan incorporating the deviation for obtaining necessary action. Clause 3, however, declares that in absence of any notice under Clause 'a' or the sanctioned of the revised plan under Clause 'b', any such erection or execution of work shall be deemed in contravention to the provisions of Act and the Rules. 15. From the conjoint reading of the aforesaid provisions no building shall be allowed to be erected unless a plan is sanctioned by the Corporation and, therefore, erection or execution of work without the sanctioned plan violates the provisions of the Act as well as the Building Rules. Any deviation either externally or internally is also not permissible except under Clause 'a' & 'b' of Sub-Rule 2 of Rule 25 is complied with and necessary permission and/or sanction is given by the Municipal Commissioner. The violation of Chapter IX of the said Rules, which contains the provisions relating to the open spaces, would attract the penal consequences under Section 400 (1) of the said Act. The object behind incorporation of Sub Rule 2 of Rule 25 is to allow such deviation which is not of serious in nature and does not offends the public at large. The aforesaid proposition can be fortified from the observation of the Special Bench in case of Purusotam Lalji (supra) in these words: (3) An analysis of the different provisions of the Act makes it clear that the buildings should conform to certain rules and before construction of new buildings sanction must be obtained. The rules to which the buildings should conform have been mentioned in the Act and powers have been given to the Commissioner to relax the rules for the purpose of sanction, in certain cases upon certain contingencies. If a building is constructed or continued to exist, which has been constructed without sanction or contrary to the rules, powers have been given to the authorities to impose penalties as well as to order demolition and alteration of the building. As noticed before, authority has been given to the Commissioner to order demolition, alteration and stopping of unlawful work in respect of such buildings by virtue of Section 414 of the Act. As noticed before, authority has been given to the Commissioner to order demolition, alteration and stopping of unlawful work in respect of such buildings by virtue of Section 414 of the Act. If an application is made for sanction, the said sanction should be granted in accordance with the rules provided. Relaxation is only possible in the manner indicated in the rules in granting such sanction. But the question that arises in this case is that where there has been no relaxation Qr in a case where the rule cannot be relaxed, in such a case, if a building or a portion thereof has been constructed or altered, what is the scope of the power of the Commissioner under Section 414 of the Calcutta Municipal Act, 1951? 16. The provision under Section 414 of the Kolkata Municipal Act, 1951 relating to the demolition, alteration and stopping of unlawful work is also retained under Section 400 & 401 of the Kolkata Municipal Corporation Act, 1980. The language engrafted under Section 414 of the earlier Act and Section 400 (1) of the subsequent Act vest a discretion on the Commissioner to make an order for demolition of the building or the execution of any work which are contrary to the Act or the Rules. It is no doubt true that a discretion is vested upon the Municipal Commissioner either to pass an order for demolition or not to pass an order for demolition but such discretion is to be exercised if the other related provisions namely Rule 25 of the building rules are strictly adhere to. Once the Municipal Commissioner found that there has been a deviation from the sanctioned plan or the execution of the work is in violation of the provisions of the Act or the Rules, the Municipal Commissioner or the delegatee cannot allow such unauthorized and/or illegal construction to be retained in absence of any compliance under Rule 25 (2) of the Building Rules as Sub-Rule 3, which is declaratory in nature, contains a deeming provision that such deviation and/or erection or execution of work shall be deemed to be in contravention to the Act and the Rules. The Special Bench in case of Purusotam Lalji (supra) also held that the discretion is in no way be circumscribed as the Commissioner cannot act arbitrarily or on extraneous grounds. 17. The Special Bench in case of Purusotam Lalji (supra) also held that the discretion is in no way be circumscribed as the Commissioner cannot act arbitrarily or on extraneous grounds. 17. The Apex Court in case of Dipak Kumar Mukherjee (supra) held that Rule 25 (2) of the Building Rules contains a non-obstante clause and requires an application to be made for revised plan showing the deviation for its sanctioned by the Municipal Commissioner or the delegatee who in absence of such application cannot allow the retention of the unauthorized or illegal construction in following words: "26. A reading of the plain language of Rule 25(1) makes it clear that a person, who erects any structure or executes any work is not entitled to deviate from the sanctioned plan. Rule 25(2) which contains a non obstante clause and provides for sanction of revised plan to be submitted by the person engaged in erection of building or execution of work lays down that if during erection or execution of work, any internal alterations or external additions which do not violate the provisions of the Act or the Rules is made, the Municipal Commissioner can, at an application made in that behalf sanction the revised plan showing the deviation. Rule 25(3) is declaratory in nature. It lays down that any departure made during the execution of any work or at any time thereafter without sanction shall be deemed to be in contravention of the Act and the Rules shall be dealt with accordingly. 27. In our view, Respondent 7 cannot take benefit of Rule 25 because the disputed construction was in clear violation of the sanctioned plan and the notices issued by the competent authority of the Corporation and also because the application was made after completion of the construction." 18. In case of Muni Suvrat (supra) as relied by the Special Officer (Building), the Apex Court was dealing a matter where the developer intended to construct a compound wall on the southern side of the tenement reducing the width of the road from 12 feet to 6 feet. A complaint was made to the Municipal Authority, which was kept in abeyance because of the intervening civil suits between the parties. A complaint was made to the Municipal Authority, which was kept in abeyance because of the intervening civil suits between the parties. A writ petition was filed alleging that the construction of a temple is in process without obtaining the permission from the Municipal Corporation with a prayer for direction upon the Municipal Authorities to demolish the entire unauthorized and illegal construction. It was brought to the notice of the writ court that an application for regularisation of the building is pending before the Municipal Authorities. The said writ petition was allowed by directing the Municipal Authorities to demolish the entire illegal and unauthorized construction. The matter was carried before the Supreme Court in a special writ petition. The Supreme Court in the backdrop of the above facts held that power to order for demolition is vested upon the Municipal Commissioner and the High Court should not usurp such power and directed the Municipal Commissioner to take a decision in the following: "51. The above order was issued on 16-9-2005 whereas the first respondent filed the writ petition in October 2005 in the Bombay High Court. On 20-1-2006, Brihanmumbai Mahanagarpalika refused the proposal for regularisation of temple. Stop-work notice was issued on 8-6-2005. In the counter-affidavit filed by the Corporation in Writ Petition No. 2841 of 2005, the Corporation has stated that since the construction work was in progress at the site without permission from the Corporation Authorities, a stop-work notice under Section 354-A of the BMC Act dated 8-6-2005 was issued to the trustees of the temple and by the said notice the addressees were called upon to stop the erection of the building/execution of the said work in the construction of RCC columns on the rear side in the above address without permission from the authorities. According to the appellant the work commenced in the year 2001 whereas the writ petition was filed after 5 years. 52. When the special leave petition was heard on 4-7-2006, this Court 351 of the BMC Act where it has been left to the discretion of the Commissioner to demolish or not to demolish, the High Court could direct a mandamus for demolition. Respondent 1 filed a counter-affidavit dealing not only with the limited question but also to deal with various other matters which have no bearing on the said question. Respondent 1 in the counter-affidavit mentioned various disputed facts. 53. Respondent 1 filed a counter-affidavit dealing not only with the limited question but also to deal with various other matters which have no bearing on the said question. Respondent 1 in the counter-affidavit mentioned various disputed facts. 53. It is seen that no notice under the provisions of Section 351 has been issued by the Municipal Commissioner in this matter against the appellant. In the special leave petition, it is clearly mentioned by the appellant that the Corporation had issued a notice to stop the work under Section 354-A of the BMC Act. No reference is made to any notice under Section 351 of the Act. It is specifically mentioned that the affidavit which was filed on behalf of the Corporation had categorically stated that after the service of stop-work notice under Section 354-A no work was carried out. Respondent 1 is fully aware that the provisions of Section 354-A of the Act deals with stop-work notice whereas the provisions of Section 351 of the Act deals with show-cause notice for demolition of unauthorised structure. The grievance of the appellant herein has been that without issuing a notice under Section 351 of the Act and without giving an opportunity to the appellant of being heard the structure of the temple could not be ordered to be demolished by the High Court. The power under Section 351 of the Act, in our opinion, has to be exercised only by the Municipal Commissioner and it is left to the Municipal Commissioner under the provisions of Section 351(2) either to order or not to order the demolition of the alleged unauthorised temple. In fact, Respondent 1 by himself through his advocate's letter dated 16-4-2005 (annexed to his counter-affidavit) requested the municipal authorities to take action under Section 351 of the Act. At the time of admission of this special leave petition, the provision of Section 351 of the Act was pointed out by the learned Senior Counsel to show that the Municipal Commissioner had only been conferred the power under the said provisions to demolish or not to demolish unauthorised structure and, therefore, the High Court ought not to have issued a mandamus for demolition of the temple before any order was passed by the Commissioner on the question of demolition. The provisions of Section 354-A have nothing to do with the question of demolition. The provisions of Section 354-A have nothing to do with the question of demolition. It is specifically averred and contended at the time of hearing that Respondent 1 is an agent set up by the developer who is developing the adjoining land and who is interested in dividing the right of way claimed by the appellant through the said adjoining plot bearing CTS No. 206. 54. It is also denied that Plot No. 206 on which the temple is situated is a landlocked plot. Both the plots now bearing CTS No. 206 and the adjoining plot bearing CTS No. 205 developed by the builder (the intervenor) originally belonged to one A.H. Wadia. Before the said plot now bearing CTS No. 205 was leased out, the land now bearing CTS No. 206 was sold by A.H. Wadia to one Fernandes who had constructed thereon a number of structures including a bungalow as shown in the city survey plan relied upon by Respondent 1 in Annexure 'A' to his writ petition before the High Court. The said plan shows that the temple is now located at the same site where originally the bungalow of Fernandes family was constructed. The said bungalow had become old and hence it was renovated in such a manner so as to convert it into a temple. 55. Thus the Fernandes family had a right of way of necessity through the land now bearing CTS No. 205 adjoining the land bearing CTS No. 206 as shown on the said plan. The said access was 12' wide and consisted of land bearing CTS No. 212 and part of CTS No. 205. However, while developing the adjoining land bearing CTS No. 205, the developer forcibly reduced the said access by digging about 7' wide stretch of land earlier used for the said access and encroach upon the part of CTS No. 212 which belongs to the appellant. This right of way has been claimed by the appellants in the suit which they have filed in the Bombay City Civil Court at Mumbai being Suit No. 5755 of 2005 which is now pending before the City Civil Court. The said 12' wide access was the only access available to the said Fernandes family and the appellant Trust from the main road which is now named as A.H. Wadia Marg for approaching the property bearing CTS No. 206. The said 12' wide access was the only access available to the said Fernandes family and the appellant Trust from the main road which is now named as A.H. Wadia Marg for approaching the property bearing CTS No. 206. The said position is clear from the plans bearing Annexures 'PP-1' and 'P-2' annexed to the special leave petition. 56. Though Respondent 1 claims that he has been residing in a room in the chawl located on the temple plot since his birth, he has not referred to the existence of the said bungalow on the temple plot owned by the Fernandes family in his writ petition filed before the High Court." 19. In the above noted report, the Supreme Court relied upon an earlier decision rendered in case of Mulchand Agarwal (supra) wherein it is held: "11. Then the question is whether the exercise of that discretion by the courts below is open to review by this Court. It is a well-settled principle that when the legislature entrusts to an authority the power to pass an order in its discretion, an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by an appellate court, unless it can be shown to have been based on some mistake of fact or misapprehension of the principles applicable thereto." 20. There is no difficulty in arriving at the conclusion that the discretion is vested upon the Municipal Commissioner to make an order for demolition of an unauthorized and/or illegal construction as well as not to pass an order for demolition but such discretion is to be exercised if the other relevant provisions are strictly adhere to namely Rule 25 (2) of the said Act as held in Dipak Kumar Mukherjee (supra) 21. In ABL International Ltd. (supra), the point in issue was whether the bill of charges and/or fees could be imposed as a condition for retention of an unauthorized construction and not the order of retention passed by the Special Officer (Building). The order levying the fees and the charges was assailed as the same cannot be demanded on the basis of the schedule of fees, charges notified of the year 2005 - 2006 when the unauthorized construction was regularised on 18 February, 2003. The order levying the fees and the charges was assailed as the same cannot be demanded on the basis of the schedule of fees, charges notified of the year 2005 - 2006 when the unauthorized construction was regularised on 18 February, 2003. The Corporation pre-agreed that the fees and charges should be charged on the basis of schedule notified for the year 2002-2003. In the above perspective, it was held: "27. Furthermore, since the learned Counsel appearing for both the parties basically accepted that building permit fees is realisable at the rate prescribed at the time of regularising the unauthorised construction, this Court directs the Municipal authority to raise the bill on account of building permit fees at the normal rate which was notified in the schedule of fees and charges for the year 2002-03 during which the unauthorised construction was regularised by the Municipal authority. 32. This Court, however, makes it clear that in addition to the building permit fees, the petitioners are also required to pay the car parking fees for not making provision of car parking spaces for 16 cars, in terms of the order of the Special Officer (B) passed on 18th February, 2003 irrespective of the fact that such fees is legally realisable from the petitioners or not, as challenge with regard to car parking spaces, cannot be entertained by this Court at this stage in view of the fact that the order of the Special Officer (B) attained its finality, as nobody challenged the same in higher forum. 33. The impugned bill/demand which was raised by the Municipal authority vide Annexure 'P-13' to this writ petition at page 94 stands quashed. The Municipal authority is directed to raise a demand afresh in the light" 22. It is a settled proposition of law that the judgment passed on concession has no binding efficacy and, therefore, the said judgment cannot have any bearing on the issue before me. Furthermore, the Hon'ble Judge who delivered the judgment in case of ABL International Ltd. (supra) did not notice of the Co-ordinate Bench decision rendered in case of Land & Bricks Entertainments Ltd. (supra) wherein the bench held: "21. Let me now consider the other points of dispute involved in this writ petition. 22. Furthermore, the Hon'ble Judge who delivered the judgment in case of ABL International Ltd. (supra) did not notice of the Co-ordinate Bench decision rendered in case of Land & Bricks Entertainments Ltd. (supra) wherein the bench held: "21. Let me now consider the other points of dispute involved in this writ petition. 22. I have already indicated above that neither the petitioners nor the Municipal authority challenged the legality and/or validity of the order of the Special Officer (B) passed in the aforesaid demolition proceeding on 18th February, 2003. Thus, the said order is binding upon both the parties. By the said order, the unauthorised construction was allowed to be retained subject to payment of the following charges: "1.(a) The P.Rs. shall retain the impugned construction shown in red colour in the D/Sketch of D/Case No. 137-D/2002-03 of Bor.- VII subject to payment of erection/re-erection charges at commercial rates. (b) The P.Rs. shall pay for non-provision of 16 Nos. of car parking spaces to be charged @ Rs. 60,000/- per car parking space". 23. Mr. Mukherjee also intimated this Court that his clients are agreeable to pay both the aforesaid charges as indicated above, but at the same time, Mr. Mukherjee contended that his clients cannot be compelled to pay any other charges which the Municipal authority is not authorised to charge under the statute for regularising such unauthorised construction." 23. In the case in hand, the demolition proceeding was initiated as the execution of work violates various Rules of the Building Rules 1990 and the same is found to be so by the Special Officer who observed thus: "Regarding the violation of building rules I find that building rule 54 was violated because width of the front open space is Nil instead of 3.5 mt. Building rule 56 was violated because width of the back space is Nil instead of 4.0 mt. Building rule 57 was violated because width of the both side spaces are Nil instead of 1.2 mt. & 2.5 mt. respectively. Building rule 61 was violated because consumed FAR is 3.85 instead of Nil. Building rule 62 was violated because ground coverage is 100% instead of 40%. Building rule 64 was violated because height of the building is 12.6 mt. Building rule 68 was violated because required Car parking space is 5 Nos. but provided Nil so there is a shortfall of 5 Nos. Building rule 62 was violated because ground coverage is 100% instead of 40%. Building rule 64 was violated because height of the building is 12.6 mt. Building rule 68 was violated because required Car parking space is 5 Nos. but provided Nil so there is a shortfall of 5 Nos. of Car parking space. 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 converted to institutional building (Doctor's chamber & clinic) without prior approval of the KMC authority." Now, let me consider if the prayer of the P.R. will be allowed or there should be an order for demolition of the same. This forum as a delegate of a Municipal Commissioner has got the necessary discretionary 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 the building is an old one and it was sanctioned in the year 1972 and the entire building has been converted from residential to a medical clinic for serving the poor people and it serves the poor people in the locality by taking nominal charges for blood testing, X-ray dental etc and due to conversion, some norms and rules of the building deptt; have been infringed. Complainant Dhriti Kanta Lahiri Chowdhury, on the other hand, has stated in his written complaint that captioned premises is adjacent to Eastern side back portion of his premises and there is a common wall between the two premises and a wall has been erected adjacent to the wall of his premises without leaving the mandatory open space on all sides as required under the building rules of the K.M.C. In the present case, I find that the deviated unauthorised construction is not so grave and serious. I further find that the unauthorised construction was made within the sanctioned area. Admittedly the complainant resides at a separate premises. In my view, the ground shown in support of conversion is very much convincing to my mind. There is no whisper in the written complaint that due to such conversion, there is obstruction of light and air to the complainant. There is also nothing on record to so that there is any obstruction of free movement of the complainant due to such conversion. There is no whisper in the written complaint that due to such conversion, there is obstruction of light and air to the complainant. There is also nothing on record to so that there is any obstruction of free movement of the complainant due to such conversion. Nowhere from the written complaint it will appear how the complainant has been affected by such construction alleged to have been made at the captioned premises. Besides the complainant, no one from the locality has come to oppose against such construction. I do not find any reason to hold that such construction has caused any inconvenience in any way to the complainant who resides elsewhere. As the public interest is involved relating to such conversion of medical clinic, the same may be considered sympathetically on humanitarian ground. In this context I like to refer a decision in case of Muni Suvrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad & Ors. reported in AIR 2007 SC 38 . In the said decision the Hon'ble Court was pleased to observe that the mere departure from the authorised plan or putting up of a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. In my view, the decision referred above has got an application so far the present case is concerned. 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." 24. The private respondent admits to have violated the aforesaid rules which could be deciphered from the recording made by the Special Officer in the following: "The case of the P.R. is that the allegation is undisputed. Retention of the unauthorised construction and regularisation of unauthorised change of use were prayed for." 25. Admittedly an application was sanctioned by the Municipal Authority in the year 1972 for construction of the two storied building. The Special Officer himself observed that an unauthorized construction is made within the sanctioned area thereby attracting the provisions contained under Clause 'a' of Sub Rule 2 of Rule 25 of the Building Rules. Admittedly an application was sanctioned by the Municipal Authority in the year 1972 for construction of the two storied building. The Special Officer himself observed that an unauthorized construction is made within the sanctioned area thereby attracting the provisions contained under Clause 'a' of Sub Rule 2 of Rule 25 of the Building Rules. Such deviation can be allowed to be retained provided the provisions contained therein are strictly followed. The special officer (building) in absence of any such application could not have decided the matter on sympathetic and humanitarian ground as the same is opposed to the declaration of law made by the Supreme Court in case of Dipak Kumar Mukherjee (supra). It would be convenient to quote Paragraph 26 & 27 of the said report which reads thus: "26. A reading of the plain language of Rule 25(1) makes it clear that a person, who erects any structure or executes any work is not entitled to deviate from the sanctioned plan. Rule 25(2) which contains a non obstante clause and provides for sanction of revised plan to be submitted by the person engaged in erection of building or execution of work lays down that if during erection or execution of work, any internal alterations or external additions which do not violate the provisions of the Act or the Rules is made, the Municipal Commissioner can, at an application made in that behalf sanction the revised plan showing the deviation. Rule 25(3) is declaratory in nature. It lays down that any departure made during the execution of any work or at any time thereafter without sanction shall be deemed to be in contravention of the Act and the Rules shall be dealt with accordingly. 27. In our view, Respondent 7 cannot take benefit of Rule 25 because the disputed construction was in clear violation of the sanctioned plan and the notices issued by the competent authority of the Corporation and also because the application was made after completion of the construction."" 26. There is no provision under the Act which permits the Municipal Commissioner to regularise the unauthorized construction upon payment of requisite fees and charges. Section 413 A of the Act which is introduced by Kolkata Municipal Corporation (Amendment Act, 1996) permits the regularisation on payment of requisite fees and charges on an application having made in prescribed form. There is no provision under the Act which permits the Municipal Commissioner to regularise the unauthorized construction upon payment of requisite fees and charges. Section 413 A of the Act which is introduced by Kolkata Municipal Corporation (Amendment Act, 1996) permits the regularisation on payment of requisite fees and charges on an application having made in prescribed form. The said provision is restricted to the buildings where construction is made by the person displaced from East Pakistan (Now Bangladesh) or by their successor-in-interest on lands occupied by such persons, if completed and/or before the commencement of the said amended Act. The aforesaid provision is restricted to a special class of a person and cannot be applied in general. By no stretch of imagination, it could be conceived that the Special Officer (Building) can direct the regularisation of an unauthorized and illegal constructions upon payment of the requisite fees and charges neither the Act nor the Building Rules contains any such power. The action of the Special Officer (Building) is not only arbitrary but is an excess and derogation of the powers conferred by the statute. The statutory authorities are supposed to act within the precincts of law and cannot travel beyond it. The aforesaid proposition can be fortified from a recent judgment delivered by this Court in case of Kalipada Das & Ors. v. Kolkata Municipal Corporation & Ors., reported in (2014) 3 WBLR (Cal) 922 in these words: "3. * * * * * * * * * * * * * * * * * * * * Since Section 392 of the Act speaks of previous sanction of the Municipal Commissioner prior to raising a building, and Section 393 postulates that every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Municipal Commissioner, and as regularisation of an unauthorised construction is not permissible except in cases under Section 413A of the Act relating to buildings constructed by persons displaced from Bangladesh (now East Pakistan), in my view there is no scope for exercising discretion under Section 400 (1)." 27. Since this Court finds that the power to regularise the unauthorized and illegal constructions are beyond the competence of the Municipal Commissioner or the Special Officer (Buildings), the ancillary point relating to regularisation of the change of user has become academic and, therefore, does not require any deliberation thereupon. 28. The order impugned is, therefore, quashed and set aside. 29. The Municipal Commissioner is directed to take immediate steps for demolition of the unauthorised and/or illegal constructions within three months from the date of the order. The Municipalities further directed to refund the charges and/or fees received on the basis of the impugned order to regularise the unauthorized construction together with an interest @ 10% per annum reckoning from the date of receiving the said amount till its payment. 30. The writ petition is thus disposed of. 31. However, there shall be no order as to costs. Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.