The lack of supply of D-Sketch plan and précis did not prejudice the petitioners, and no sanction plan was obtained for the construction. The court also noted that it would be improper to pass an order permitting the petitioners to enjoy the unauthorized construction perpetually.

JUDGMENT

Saugata Bhattacharyya, J. - This writ petition centers around nature of construction carried out in premises no. 101, Dr. Meghnad Saha Sarani, Kolkata - 700029, under the jurisdiction of Kolkata Municipal Corporation.

2. It has been submitted by Mr. Raghunath Chakraborty, learned advocate representing the petitioners a notice under section 400 (1) of The Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the 'said Act of 1980') was issued to the petitioner no. 2 on 2nd April, 2012.

3. Subsequently, the matter was considered by Joint Municipal Commissioner (REV) and an order was passed on 2nd August, 2012 wherein it has been held that entire construction at the 2nd floor and 3rd floor of the said premises is unauthorized as per the structures marked in the D-Sketch. It was also found by the said Joint Municipal Commissioner that the entire building was sanctioned for residential purpose but according to the report the portions at the 2nd floor and 3rd floor are being used for non-residential purpose. On finding such facts relating to erection of unauthorized construction the Joint Municipal Commissioner passed an order directing the Person Responsible (PR) to demolish the said unauthorized constructions at the 2nd floor and 3rd floor of the said premises within fifteen days. Such decision of the Joint Municipal Commissioner dated 2nd August, 2012 has been questioned by the writ petitioners by preferring an appeal before the Municipal Building Tribunal, KMC and subsequently, the said appeal being B.T. Appeal No. 91 of 2012 was dismissed vide order dated 25th February, 2016. The appellate authority being the Chairman of the Municipal Building Tribunal, KMC while dismissing the appeal has upheld the decision of Joint Municipal Commissioner.

4. The said order of the appellate authority dated 25th February, 2016 upholding the decision of the Joint Municipal Commissioner dated 2nd August, 2012 whereby direction was given to demolish illegally constructed portions at 2nd and 3rd floor of the premises in question, is under challenge in the present writ petition.

5. It has been argued on behalf of the petitioners who is a tenant of the said premises that show-cause notice dated 2nd April, 2012 did not accompany précis and D-Sketch which violates the established procedure and denying the right of the petitioners to present their case before the appellate authority. It has also been submitted that the address of the premises is 200 C.I.T. Scheme but the notice under section 400(1) of the said Act of 1980 was issued in connection with premises no. 101, Dr. Meghnad Saha Sarani. According to the petitioners since the address of the said premises is 200, C.I.T. Scheme such notice in relation to premises no. 101, Dr. Meghnad Saha Sarani is not maintainable. It has further been argued that it appears from the said notice dated 2nd April, 2012 that though under section 400(1) notice has been issued for initiation of demolition proceeding but there is no notice under section 416(5) of the said Act of 1980 in relation to change of user since a case has been made out before the concerned authorities of the municipality that a residential building has been unauthorizedly used by the petitioners for commercial purpose. According to the petitioners in absence of the valid notice under section 416(5) of the said Act of 1980 the order passed by the appellate authority dated 25th February, 2016 cannot stand. The next point taken on behalf of the petitioners again on reference to the notice dated 2nd April, 2012 that though certain Building Rules have been referred to while issuing notice under section 400(1) on the allegation of infringement of such Building Rules but on perusal of the order of the appellate authority it does not appear that while taking decision against the writ petitioners any finding has been made based on violation of such Building Rules as indicated in the notice dated 2nd April, 2012. Lastly, it has been argued