The Municipal Authorities have no power to regularize illegal construction on payment of a fee at a penal rate, as such regularization is contrary to the spirit and provisions of the Calcutta Municipal Act, 1980, and is outside the powers of the Municipal Corporation.

ORDER :- This is a writ application seeking to challenge a Circular dated 19th December, 1988 appearing at page 143 of the writ petition. The text of the Circular is as follows :

"The Calcutta Municipal Corporation Central Municipal Office Bldgs., Municipal Commissioners Office Dated, Calcutta, the 19th Dec. 1988 Circular No. 20 of 1988-89

ORDER

The Government having been satisfied that the Calcutta Municipal Corporation Act, 1980 contains no provision for relaxation in its S. 400 authorising an offending construc­tion to be completed on submission of a fresh plan and on payment of a fee at penal rate, the Governor has been pleased to invoke the provision of S. 15 of the said Act so as to order that the practice of regularising illegal construction on payment of a fee at a penal rate should be discontinued (sic).

The order of the Government is brought to the notice of the Hearing Officer (Building) and other Officers/Department dealing with and/or who may deal with cases of un­authorised construction of building for their guidance and complying with Government order.

Municipal Commissioner

To Hearing Officer (Building) Officers/Department dealing with unauthorised constructions."

2. The case on facts of the writ petitioners is that there was an earlier writ in this Court and the same was withdrawn on a certain understanding being reached as between the writ petitioners and the Municipal Authorities. The Municipal authorities have denied that there was any such final or binding understanding.

3. The allegation of the writ petitioners is that though certain building Activities have been carried on by them without the required sanction under the Municipal Laws yet none of these activities would contravene any of the building Rules, and as such if they had had a sanction to that effect, these building activi­ties could not be complained of in any manner.

4. From pages 124 to 127 of the writ petition certain documents are annexed in support of the contention of the writ peti­tioners that a definite understanding was reached with the Municipal Authorities for regularisation of the building which had been partially constructed without a sanctioned plan. Without going into details I might say that there was included, amongst others, an understanding that the plan case would be regularised on payment of penal fees to the Corporation.

5. The aforesaid circular that I have set out also mentions and contemplates such penal fees.

6. Apart from the question of penal fees the petitioners undertook, according to them, before the Municipal Corporation, not to carry out construction of any kind till disposal of the plan matter, to pay Guard posting charges etc. These other conditions are in no way relevant for disposal of the matter before me.

7. The said earlier writ was withdrawn on the 21st of July, 1988 and the terms of withdrawal appear from the short copy minutes included at page 128 of the Anne­xures to the writ petition.

8. The alleged undertakings and a pay­ment of Rs. 19,200/- on the part of the writ petitioners appear to have been given and made just after the withdrawal of the earlier writ and the same will appear from the aforesaid pages 124 to 127 of the Annexures to the writ petition as I have mentioned earlier.

9. The submission of the writ petitioner before me is that the finalization of the plan case was substantially affected by the intro­duction of the said Circular dated 19th December, 1988. Since the said Circular pro­hibited the regularization of illegal construc­tion on payment of a fee at a penal rate the structure of the undertaking and arrangement arrived at according to the writ petitioner was not left in the same position as it was prior thereto. The writ petitioners were not left in the same position as was prior to the issuance of the said Circular.

10. On this aforesaid basis the writ peti­tioner has in reality prayed for two reliefs :

11. First the writ petitioners state that they should be permitted to participat