The Municipal Commissioner or the Special Officer (Building) does not have the power to regularize unauthorized and illegal constructions or to allow the change of user of any building for any purposes other than for which it was originally sanctioned.

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. 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 t