The Court held that the State Legislature is competent to enact Secs. 628 and 629 of the KMC Act in the interest of preservation and maintenance of the public order in the Hastings area which is included in Kolkata and this is possibly because the part of the Hastings area which is in Kolkata is located in close proximity to the ‘Fort William’. There is no repugnancy between the provisions of the 1903 Act and Secs. 628 and 629 of the KMC Act. The operation of Secs. 628 and 629 of the KMC Act does not depend on the existence of a notification under Sec. 3 of the 1903 Act.

Arijit Banerjee, J.

1. The writ petitioners/appellants approached the Learned Single Judge by filing WP No. 704 of 2012 seeking a declaration that Sections 628 and 629 of the Kolkata Municipal Corporation Act, 1980 (In short the ‘KMC Act’) are ultra vires the Constitution of India and for a writ of prohibition prohibiting the respondent no. 4 (Union of India) from insisting on exercising its right under the said Sections. By a judgment and order dated 20 March, 2015, the learned Single Judge dismissed the writ application by holding that the reliefs sought in the writ petition including the declaration that Sections 628 and 629 of the KMC Act are ultra vires the Constitution of India cannot be granted.

Case of the appellants:-

2. On the basis of an application dated 8 January, 2008 under Section 393 of the KMC Act, a building permit was issued in favour of the appellant company for construction of a multi-storied building for hotel purpose on Premises No. 5/1 Munsi Prem Chand Sarani, Calcutta. The building plan was sanctioned on 16 April, 2009. Prior to obtaining the said sanction the appellants obtained clearance from various Departments and authorities, namely, Ministry of Tourism, Govt. of India, Ministry of Commerce and Industry, Govt. of India, the West Bengal Pollution Board Control, Kolkata Police, West Bengal Fire Services, International Airport Authority, Bharat Sanchar Nigam Limited, and Survey of India. While according the sanction to the building plan, the KMC did not ask for any permission under Sec. 628 of the KMC Act.

3. The appellants completed a 14 storied structure and started fitment work and for that purpose incurred expenditure in the region of Rs. 180 crores. Learned Counsel for the appellants contended that there exists total confusion between KMC and the Army Head Quarters, Bengal Region, as regards the identity of the area in respect whereof the provision of Sec. 628 of the KMC Act applies. Since 1984, when the KMC Act, 1980 became operative, till date there has been no clarification or understanding between the KMC and the Army Authorities in this regard. When the appellant company applied for beautification by barren land belonging to the Defence Department in front of the proposed hotel, the Army Authorities started raising objection with regard to the building constructed by the appellants company.

4. Learned Counsel for the appellants submitted that the short question that arises for consideration is whether or not the absence of permission as contemplated by Sec. 628 of the KMC Act will invalidate the building plan duly sanctioned by the KMC and consequently whether the construction already completed in accordance with the plan will require demolition under Sec. 629 of the KMC Act. Secs. 628 and 629 of the KMC Act provide as follows:-

“S. 628. Sanction of Central Government required for erection of masonry building.- The Corporation shall not give or be deemed to have given permission to erect a masonry building in that part of Hastings which is included in Kolkata unless and until the sanction of the Central Government has been obtained; and such sanction shall not be applied for unless the plan of the building and the site-plan of the land are approved by the Commissioner of Police.

S. 629. Demolition or alteration of buildings erected without such sanction.-

(1) If the erection of any masonry new building in that part of Hastings which is included in Kolkata is, after the commencement of this Act, commenced, carried on or completed without obtaining the sanction of the Central Government, the Municipal Commissioner shall, if requested by the General Officer Commanding the Presidency District to do so,-

(a) by written notice direct the owner to demolish or alter the building, or

(b) himself cause the building to be demolished or altered at the expense of the owner.

(2) No person shall be entitled to any compensation on account of such demolition or alteration.”

5. Before us, the appellants did no