The approval of the Board of Administrators was a mere formality, and the calculation of retention fees should have been based on the rates prevailing during the financial year 2018-19, as per the budget schedule.

JUDGMENT

Shampa Sarkar, J. - The petitioner has challenged the draft demand notice issued by the Assistant Engineer Building Department Borough VIII of the Kolkata Municipal Corporation. The date of issue of the said notice was March 20, 2021. The due date for payment was April 5, 2021.

2. The demand was in relation to premises no. 6/3, Anil Maitra Road, Kolkata - 700019. The claim as per the said notice was for Rs. 95,24,695/-. The claim was against the retention charges payable for regularization of the unauthorized construction in the said premises.

3. A multi storied building had been constructed on the said premises and the petitioner had committed deviations from the sanction plan. Accordingly, a notice was issued by the Kolkata Municipal Corporation under section 400(1) of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the said Act). Demolition case number 13-D/Br.-VIII/2018-19 Borough No. VIII dated August 1, 2018 was initiated and placed before the special officer (building) of the Kolkata Municipal Corporation, for a decision. The special officer (building) was acting as a delegatee of the Municipal Commissioner.

4. By an order dated November 1, 2018, the demolition case was disposed of, upon hearing the petitioner. The total area of unauthorized construction was found to be 173.825 sqm and the change of user was in respect of an area of 183.79 sqm.

5. The demand was issued pursuant to the calculation made towards retention fees by the concerned department of the Corporation after the order of the Special officer (building), dated November 1, 2018 was passed. Such calculation was based on the direction of the Chairman, Board of Administrators and the rates mentioned in the office order dated January 19, 2021, were applied.

6. Assailing the aforementioned demand notice, Mr. Arunava Ghosh Learned Senior Counsel submitted that the petitioner was not served with the break- up of the inflated calculation. Suddenly, the purported demand notice for an amount of Rs.95,24,695/- was served. The authority miscalculated the amount of retention fee by erroneously applying the office circular no. 8 of 2021 dated January 19, 2021, issued by the Director General (Building).

7. Learned counsel further submitted that the order of the Special Officer (Building), allowing the petitioner to retain the minor deviations upon payment of the retention fee, to be calculated by the appropriate department of Kolkata Municipal Corporation, was passed on November 1, 2018. Thus, calculation of the fees should have been at the rates which were prevailing during the financial year 2018-19.

8. The decision of the Board of Administrators to calculate the retention fee on the basis of the office order dated January 19, 2021 was arbitrary, illegal and not in accordance with the relevant statute and the regulations framed thereunder. The Board of Administrators did not have any authority to dictate the method of calculation. That a subsequent office order could not be given a retrospective effect. The date of the concurrence/ approval of the Board of Administrators after more than 2 years from the date of the order of the Special Officer (Building), could not be treated as the date of the order.

9. Mr. Ghosh's contention was that the concurrence by the Mayor/Mayor-in- Council (in this case Board of Administrators) as per the Kolkata Municipal Corporation (Regularization of building) Regulation 2015 (hereinafter referred to as the said Regulation), was a mere formality. The right of the petitioner for regularisation of the unauthorized structures, namely 'the minor deviations', upon payment of fees accrued on the date of the order passed by the Special Officer (Building). Such right of the petitioner was finally determined on November 1, 2018. The fee was to be calculated at the rate applicable on the date of such order. The concurrence and/or the approval given by the Board of Administrators at a future date would not shift the date of th