The Calcutta Municipal Corporation Act, 1980 does not authorize the Corporation to levy fees, penalty, or charges for minor infringements of Building Rules or to regularize unauthorized construction by imposing fees at a penal rate. The Corporation can levy a fine for unauthorized user of a building only after making necessary regulations.

Headnote:
Calcutta Municipal Corporation Act, 1980 - Sections 400(1), 416(1), 416(2), 416(4) - Construction of Building - Minor Infringement of Building Rules - Discretion of Municipal Commissioner - Levy of Fees, Penalty, or Charges - Unauthorized User of Building - Interpretation and Application.
Fact of the Case:

The petitioner, having purchased a portion of land with the right to construct thereon, made construction in accordance with the sanctioned plan and also executed work on the basis of a revised plan submitted to the Calcutta Municipal Corporation (CMC). The CMC initiated proceedings under section 400(1) of the Calcutta Municipal Corporation Act, 1980, alleging minor and technical infringements of Building Rules. The proceedings concluded with an order condoning the infringements and allowing the petitioner to retain the impugned structure subject to payment of required fees, charges, etc.
Finding of the Court:

The Court found that sub-section (1) of section 400 of the Act authorizes demolition of 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 and Regulations made thereunder, but it does not expressly authorize the Corporation to condone such erection or execution of work or to regularize the same. Sub-section (1) of Section 416, however, specifically authorizes the Corporation to permit change of user of a building. The Court also found that neither sub-section (1) of section 400 nor any other sub-section 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.
Issues: 1. Whether the Calcutta Municipal Corporation (CMC) has the authority to levy fees, penalty, or charges for minor infringements of Building Rules? 2. Whether the CMC can regularize unauthorized construction by imposing fees at a penal rate? 3. Whether the CMC can levy a fine for unauthorized user of a building without making necessary regulations?
Ratio Decidendi: 1. The Court held that the CMC cannot levy fees, penalty, or charges for minor infringements of Building Rules as there is no provision in the Act or the Rules and Regulations made thereunder that authorizes such levy. 2. The Court held that the CMC cannot regularize unauthorized construction by imposing fees at a penal rate as it is not authorized to do so under the Act or any other law. 3. The Court held that the CMC cannot levy a fine for unauthorized user of a building without making necessary regulations as sub-section (4) of section 416 of the Act, which authorizes the levy of such fine, requires the making of regulations to determine the scale of the fine.
Final Decision: The Court allowed the writ petition and declared that the petitioner is not obliged to pay any of the charges claimed by the CMC. The Court also declared that the sum of Rs. 1 lakh already paid by the petitioner is not refundable by the Corporation.

JUDGMENT

Barin Ghosh, J.: The subject matter of challenge in the instant writ petition appears to be the claim of the Calcutta Municipal Corporation on account of certain minor and technical infringement of Building Rules relating to construction of property belonging to the petitioner.

2. Despite opportunities having been granted, no affidavit-in-opposition has been filed by the Calcutta Municipal Corporation (hereinafter referred to as "the respondent Corporation"). Despite requests made by the Court the learned counsel for the respondent Corporation could not furnish the break up of such charges. The learned counsel for the respondent Corporation also could not inform this Court the basis of the claim of such charges.

3. It is the case of the petitioner in the petition as well as in the supplementary affidavit filed on 26th July, 2001 and not denied by the respondent Corporation that premises No. 5A, Lord Sinha Road, Calcutta, consists of land area measuring about 2 bighas and that the owners thereof, namely, Raj Kumar Jhunjhunwala, Ashok Kumar Jhunjhunwala, Vijoy Kumar Jhunjhunwala and Vinod Kumar Jhunjhunwala, got B.S. Plan No. 20/III dated 25th August, 1981 sanctioned by the respondent Corporation for construction of residential buildings thereon. It is the further case of the petitioner and not denied by the respondent Corporation that the petitioner in 1989 purchased or acquired interest in land comprising of 2 cottahs, 10 chittacks and 26 square feet out of the total land area measuring about 2 bighas at the said premises with right to make construction thereon on the basis of the said plan. It is also the contention of the petitioner and not denied by the respondent Corporation that on 5th May, 1992 the petitioner submitted a revised plan to the respondent Corporation whereby it proposed to convert the residential ground floor with car parking space into shops. It is the case of the petitioner and not denied by the respondent Corporation that the petitioner made construction in accordance with the sanctioned plan bearing B.S. No. 20/III dated 25th August, 1981 and also executed work on the basis of the revised plan so submitted on 5th May, 1992.

4. It appears that subsequent to such construction work was done, the respondent Corporation initiated proceedings under sub-section (1) of section 400 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the said Act"). The said proceeding was concluded by an order dated 30th May, 1994. The said order is as follows:

"The P.R. Om Prakash, Killa of M/s. Hallmark Consultants (P) Ltd. is represented by his authorized agent Mr. Amitava Raha. Other persons responsible viz., Raj Kumar Jhunjhunwala, Ashok Kumar Jhunjhunwala, Vijoy Kumar Jhunjhunwala, and Vinod Kumar Jhunjhunwala are represented by their learned Advocate, Uma Roy. Ram Avatar Sharma of 5A, Lord Sinha Road is absent inspite of intimation. The Department is represented by the D.P.S. Heard, considered and perused the case record.

Raj Kumar Jhunjhunwala, Ashok Kumar Jhunjhunwala, Vijoy Kumar Jhunjhunwala and Vinod Kumar Jhunjhunwala (hereinafter referred to as the said Jhunjhunwalas) claim to be the owner of Premises No. 5A, Lord Sinha Road and they got a B.S. Plan No. 20/III dt. 25.8.81 for construction of residential building thereon. Subsequently in pursuance of an agreement for sale dt. 9.2.89 the said Jhunjhunwalas on acceptance of Rs. 8,50,000/- (Eight lakh fifty thousand) against the full consideration money of Rs. 9,00,000/- (Nine lakhs) in respect of the demarcated portion of land of the said premises covered by the said B.S. Plan from M/s. Hallmark Consultants (P) Ltd. of 5A, Lord Sinha Road, put the latter in possession of the said land on the same date, i.e., on 9.2.89. The said Jhunjhunwalas by executing a registered power of attorney dt. 9.2.89 appointed M/s. Hallmark Consultants (P) Ltd. and Om Prakash Killa as their constituted attorney empowering them, inter alia, to act on their behalf

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Judicial Analysis

2002 Supreme(Cal) 407

HIGH COURT OF CALCUTTABarin Ghosh, J.Hallmark Consultants Pvt. Ltd.Vs.Municipal Commissioner, Calcutta Municipal Corporation & Ors.W.P. No. 3915 of 1994Decided on : June 21, 2002

Cases Referred (1)

Judicial Analysis

HIGH COURT OF CALCUTTA
Barin Ghosh, J.
Hallmark Consultants Pvt. Ltd.
Vs.
Municipal Commissioner, Calcutta Municipal Corporation & Ors.
W.P. No. 3915 of 1994
Decided on : June 21, 2002