JUDGMENT :

Amrita Sinha, J.

1. The matter relates to certain unauthorised construction at the premises no. 25A, Beniapukur Lane, Ward No. 61, Borough VI, under jurisdiction of Kolkata Municipal Corporation (‘KMC’ for short). A G+5 storied residential building was sanctioned by KMC with benefit under Rule 142 of the KMC building rules for construction at the subject premises.

2. KMC issued notice under Section 401 of the KMC Act, 1980 (‘the Act’ for short) on 20th February, 2023 and directed the petitioner to forthwith stop construction including any addition or alteration at the subject premises as the same was constructed in deviation of the approved plan. Despite issuance of the aforesaid notice the petitioner continued raising unauthorised construction and constructed an additional floor without obtaining any sanction.

3. A first information report was lodged before the police station under Section 401A of the Act on 21st February 2023.

4. The aforesaid incident of making unauthorised construction was included for discussion in the agenda of the meeting of the Mayor in Council on 1st March 2023. The agenda mentions that it is a case of unauthorised construction by encroachment of mandatory open spaces and shuttering done for one additional floor over sanctioned G+5 storied residential building. The area of unauthorised construction is approximately 621.09 m² and shuttering made for area 242.150 m². Construction has been made at the subject premises defying all the actions taken by KMC.

5. The Department prepared proposal under Section 400 of the Act along with demolition sketch and infringement statement. The construction infringes several building rules of the Corporation. The agenda records that if the unauthorised construction is allowed to stand, the same may collapse at any moment leading to accident resulting in loss of human life and property and will also create several hazards like fire and environment hazard.

6. Considering the gravity of the situation and safety of the public in general, the Department recommended demolition of the unauthorised structure forthwith under Section 400(8) of the Act. Agenda was placed in the meeting of the Mayor in Council for approval. The said agenda was approved by the Mayor and it was resolved that appropriate action for demolition of the unauthorised construction be taken forthwith under Section 400(8) of the Act with police force. The resolution was forwarded to the Director General (Building) for execution.

7. The petitioner is aggrieved by the same.

8. It has been contended that KMC ought not to have invoked the emergent provision for taking action against the alleged unauthorised construction. KMC ought to have given a reasonable opportunity of hearing to the petitioner to defend the construction made and ought not to have taken sudden action under Section 400(8) of the Act.

9. It has been submitted that as notice was issued under Section 401 and steps taken under Section 401A, accordingly, consequent proceeding under Section 400(1) ought to have followed. Instead of the same, KMC invoked the emergent provision to demolish the structure. Without subjective satisfaction that the construction is unsafe and may cause accident leading to loss of life and property, the impugned notice ought not to have been issued.

10. The authority does not have unbridled and unfettered power to invoke the emergent provision and ought to have satisfied themselves that such an action is the only alternative to deal with the issue. The department followed a stereotyped agenda and adopted the resolution to invoke emergent provision without proper application of mind. There is nothing on record to show that the authority assessed the immediate risk of the unauthorised construction for which the impugned notice has been issued.

11. As the emergent provision takes away the right of the petitioner to defend the construction made, the authority ought to have exercised the said provision with caution and only as a l