IMPORTANT POINT
The final order passed by the Special Officer in September 2021 superseded the earlier order and should be acted upon. The prevailing rate for the financial year 2022-23 should be applied in determining the demand notice.

JUDGMENT :

Amrita Sinha, J.

1. The petitioners in the instant writ petition have assailed the demand notice dated 24th August, 2022 raised by the building department on account of the charges for retention of unauthorized construction and fees for change of use of the structure standing at 692, Diamond Harbour Road, Ward no. 124, Borough XVI under the Kolkata Municipal Corporation.

2. Portions of the structure at the aforesaid premises were found to be constructed unauthorizedly. To deal with the unauthorized construction a proceeding was initiated by the Kolkata Municipal Corporation under Section 400/400(1) of the KMC Act, 1980. The issue of unauthorized construction was dealt with by the Special Officer (Building), Kolkata Municipal Corporation and hearing was conducted on 26th December, 2020. Order was passed by the Special Officer on 4th January, 2021.

3. The order records the details of the unauthorized construction. It was recorded that construction of G+4 storied residential building in deviation of the sanctioned plan was detected. The use of car parking space and residential space was changed with providing extra stair. Several infringements of the KMC Building Rules, 2009 were detected. It was noticed that the total area where there has been change of use is 525.08 sq.mts. and the area of unauthorized construction was found as 74.437 sq.mts. (residential to mercantile wholesale), the land area is 417.12 sq.mts.

4. The reason for deviation at the time of making construction was considered by the Special Officer and after perusal of all facts and figures the Special Officer was inclined not to pass order of demolition in respect of the impugned structure. The Special Officer permitted the person responsible to retain the unauthorised construction subject, however, to the observation to be obtained from the West Bengal Fire and Emergency Services for the office accommodation.

5. The Special Officer recorded in the order that the person responsible have to deposit the fees demanded after due concurrence of the authority within thirty days from the date of issue of the order, failing which action for demolition will be taken on approval of the authority and the cost of demolition may be recovered from the person responsible.

6. It was clearly mentioned that the fees for regularisation should be accepted only after submission of the observation from the West Bengal Fire and Emergency Services. The Special Officer further records that in case of complaint/ dispute arising including discrepancy on the rate on erection, the order may be reviewed and may be revoked, if situation demands.

7. The Special Officer clearly mentioned in the order that the same will be given effect to subject to the approval of the Board of Administrators, Kolkata Municipal Corporation.

8. The petitioners claim that in furtherance to the aforesaid order of the Special officer, the impugned demand notice under Sections 400(1), 416 of the KMC Act, 1980 was issued on 24th August, 2022 and the same was valid up to 8th September, 2022. The petitioners allege that the Corporation ought to have raised the demand immediately after the order was passed by the Special Officer (Building) permitting retention of the unauthorised construction and change of use of the subject property. The Corporation ought not to have waited from January, 2021 till August, 2022 for generating the demand. As more than one year elapsed between the date of the order and the date of the demand raised, the Corporation relied upon the scheduled rate for the financial year 2022-23 for raising the demand. Had the demand been raised immediately after the order of the Special Officer in January, 2021, then the quantum of demand would not have been so high.

9. According to the petitioners the amount demanded is highly exorbitant. Prayer has been made to set aside the impugned demand generated on 24th August, 2022 and apply the schedule or rate which was prevailing on the date of the order passed by