A tower affixed to a building is a "building" under section 2(5) of the Kolkata Municipal Corporation Act, 1980, and prior sanction is required for erecting a tower under sections 392 and 393 of the Act. The Act does not provide for post facto regularization of a "building" erected without the previous sanction of the Municipal Commissioner.

Soumitra Pal, J.

1. In this writ petition, the petitioner, the owner of the premises in question, has challenged the notice dated 7th December, 2011 issued under section 401 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as "the Act") directing her to stop further construction including addition and alteration of the premises as it was allegedly carried out in deviation of the sanctioned plan and was in breach of the provisions of the Act. The case of the petitioner, as stated in the writ petition and in the supplementary affidavit, is that in the year 2010 she in terms of the sanctioned plan had constructed a building at the said premises comprising the ground floor and three upper floors. After completion of such construction, the petitioner found that there was some area within the premises where additional construction could take place and the same would fall within the Floor Area Ratio as permitted by the Kolkata Municipal Corporation ("Corporation" for short). The petitioner, intending to make construction in this additional area, filed an application for sanction of a revised building plan under the Kolkata Municipal Corporation Building Rules, 2009 (for short "the Rules"), which is pending. Thereafter, during October, 2011, the private respondent No. 7, engaged in the business of setting up and installation and operation of telecommunication infrastructure, including towers, shelters DG set antennae and other related equipments, approached the petitioner to install a telecommunication tower ("tower" for short) on the roof of the premises. The petitioner was informed that for the purpose of construction of the tower, approximately 600 square feet of area on the roof would be required and the tower would be erected within ten days after obtaining requisite licences, consent and approvals from the statutory authorities. Subsequently, on 4th November. 2011 the petitioner and the private respondent entered into an agreement for licence in terms whereof private respondent was permitted by the petitioner to set up a tower on a demarcated portion on the roof of the premises. Statement is at the time of entering into the agreement, the private respondent handed over a copy of the application dated 3rd November, 2011 addressed to the Executive Engineer, Borough No. II, Building Department, Kolkata Municipal Corporation for obtaining no objection certificate for raising the tower. Thereafter, the petitioner received the impugned notice dated 7th December, 2011 under section 401 of the Act from the Corporation and in terms whereof guards were posted by the Corporation at the premises for preventing unauthorized construction. After receiving the notice, the petitioner went to the office of the Corporation and was directed to submit an undertaking that no unauthorized construction would take place and only upon furnishing such undertaking, guards posted would be withdrawn. In such circumstances, the petitioner furnished an undertaking and paid a sum of Rs. 9,600/- for posting of guard and prayed for withdrawal of guard.

2. The further case of the petitioner is that, in the meantime, she was informed by the private respondent that the application for obtaining no objection certificate to set up the tower was kept in abeyance since the said private respondent was required to comply with certain other requirements as per the office circular of the Corporation. In such connection, the private respondent handed over a copy of the letter dated 3rd December, 2011 issued by the Corporation and a copy of the relevant circular. It is stated that as in due compliance of the circular dated 5th May, 2006, necessary documents were submitted before the Corporation for the purpose of obtaining the no objection certificate for installation of the telecom tower and the requirements in the circular dated 5th May, 2006 have been complied with, the private respondent is entitled to have necessary clearance for operating th