The third proviso to Section 400(1) of the Kolkata Municipal Corporation Act, 1980 and the Regulations, 2015 formulated by virtue of the said proviso, that is KMC (Regularization of Building) Regulations, 2015, deal with minor unauthorized erection or work or minor deviation and they do not include any construction other than minor construction or erection.

JUDGMENT :

(Apurba Sinha Ray, J.) :

1. The appellant, a self-proclaimed law abiding citizen, raised a construction on a thika property without sanctioned plan from the Kolkata Municipal Corporation (‘KMC’ in short hereinafter) and consequently a stop work notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 (in short the Act, 1980) dated 18.10.2022 was served upon the appellant but as he continued with the construction work defying the said stop work notice, an FIR was lodged against him under Section 401A of the Act, 1980. As the appellant did not stop his construction even thereafter, steps were taken by the Authorities under Section 400(8) of the Act, 1980.

2. The main grievance of the appellant/writ petitioner is that though notice under Section 401 of the Act, 1980 was served upon him no step was taken from the side of the KMC under Section 400(1) of the Act, thereby depriving the appellant of an opportunity of being heard before the concerned Special Officer (Building) of the KMC.

3. Learned Counsel appearing on behalf of the appellant, Mr. Aniruddha Chatterjee, has submitted that by virtue of the Kolkata Municipal Corporation (Amendment) Act, 2014 the Kolkata Municipal Corporation authority under Section 400(1) of the Act, 1980 has been empowered to regularize certain unauthorized construction. It is also pointed out from the side of the appellant that the Municipal Commissioner has issued Circular No. 08 of 2020-21 dated 19.01.2021 in respect of fees for retention of unauthorized constructions which are allowed to be retained by the order of Special Officer (Building).

4. Learned Counsel of the appellant has further contended that though notice under Section 401 of the Act has been issued to the appellant/writ petitioner on 23.12.2022, no notice under Section 400(1) of the said Act was ever served upon the petitioner for hearing of regularization of alleged deviation, if any. The Director General (Building) of the Corporation issued office Circular No. 16 of 2021-22 dated 02.03.2022 specifying the stages for deposit of fees and the amount thereof before hearing in respect of unauthorized construction.

5. As the Kolkata Municipal Corporation authority has straightway adopted the process under 400(8) of the Act after issuance of notice under Section 401 of the Kolkata Municipal Corporation Act, 1980 a valuable right of hearing of the appellant, as envisaged under Section 400(1) of the Act, 1980 has been infringed and therefore the process undertaken by the Kolkata Municipal Corporation authority under Section 400(8) of the Act, 1980 which is a draconian piece of law, has seriously violated the principles of natural justice.

6. Learned Counsel has vehemently submitted that as there is no scope of hearing in respect of the process initiated under Section 400(8) of the Act, 1980, there must be some materials from the side of the KMC to show that the Mayor-in-Council and the Mayor have applied their minds in coming to the conclusion that immediate action for demolition of the concerned building is necessary. Learned Counsel has pointed out that from the materials on record it appears that in each and every case of similar nature, a stereotyped order is passed without going into the differences in factual aspects of the cases. As the Mayor and Mayor-in-Council are used to passing stereotyped, same order in respect of similar types of cases, as per the submission of the Learned Counsel of the appellant, it can be safely concluded that there was no application of mind either by the Mayor or the Mayor-in-Council.

7. Learned Counsel for the appellant also drew the attention of this court to the Kolkata Municipal Corporation (Transaction of Business of the Mayor-in-Council) Regulations, 1986 and submitted that a bare perusal of the provisions thereof would show that the Mayor-in-Council did not consider the case of the appellant independently. Rather it passed a stereotyped order which it passes in similar types