IMPORTANT POINT
The main legal point established in the judgment is the lack of inherent jurisdiction of the Special Officer under section 400(1) of the KMC Act 1980, leading to the nullity of the orders passed by the unauthorized officer.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. The petitioner herein contended that he is the owner of showrooms on the ground floor and front basement of the building at 5, Camac Street Kolkata by purchasing the same through a registered deed dated 12th December, 1981. Petitioner’s further contention is that the Mezzanine floor which alleged to have unauthorizedly constructed by the petitioner was actually in existence since 1982 and the petitioner purchased the space along with the said mezzanine floor. At the time of construction the builder constructed a big loft with a stare-case meant for use as a store room and for use of internal works. The said loft/mezzanine floor thus exists even at the time of construction of the building. The Municipal Corporation allowed to retain the said mezzanine floor in all the show rooms constructed in front of the said building.

2. However some of the flat owners of the said building complained before the competent authority of the Kolkata Municipal Corporation (hereinafter called as KMC) that there exists an unauthorized construction in the form of the said mezzanine floor and prayed for initiation of appropriate proceeding under section 400(1) and section 401 of the KMC Act 1980 and also prayed for demolition of the said mezzanine floor. Pursuant to said complaint the competent authority of KMC initiated a proceeding being D/Case No. 72-D/B-VII/2005-2006. The competent authority of the KMC appointed a Special Officer to investigate the matter in terms of the provisions of the KMC Act. The Special Officer (Building) of the KMC by an order dated 31st July, 2008 and 17th October, 2008 in the aforesaid demolition proceeding ordered that the person responsible shall demolish the unauthorized construction of mezzanine floor within 30 days from the date of communication of the order and in default the KMC Authority shall demolish the same and the cost of such demolition shall be recovered from the person responsible. It was further ordered by the Special Officer that the person responsible shall be allowed to retain the unauthorized construction as marked in red colour in D-sketch subject to payment of retention charges under section 400 (1) (C) of KMC Building Rules, 1990.

3. Being aggrieved by the aforesaid orders passed by the Special Officer in aforesaid demolition case, petitioner herein had preferred an appeal before the learned Municipal Building Tribunal, KMC being BT Appeal No. 77 of 2008 in terms of section 400(3) of the KMC Act 1980. The petitioner further submits that an application was made before the Municipal Building Tribunal in connection with the said appeal for production of the building sanction plan in respect of the suit premises but by an order dated 5th January, 2010 the Tribunal was pleased to dismiss the said application.

4. Being aggrieved by that order an Application under Article 227 being C.O. 580 of 2010 was preferred before this Court and by an order dated 15th July, 2011 this Court disposed of the said Application, directing KMC to produce the sanctioned plan within two weeks from the date of the communication of the order.

5. Since the KMC did not submit the sanctioned building plan before the Tribunal, another application being C.O. 508 of 2012 was preferred before this Court and during the hearing of the said application, KMC appraised the court that in spite of best efforts, building sanctioned plan could not be traced. By an order dated 4th March, 2012, this court disposed of said C.O. 508 of 2012, directing the Tribunal to dispose of the aforesaid appeal within a period of three months from the date of the communication of the order on the basis of materials placed before it.

6. Challenging the jurisdiction of the special officer to deal with demolition case under section 400(1) of the KMC Act 1980, argument was advanced before the Tribunal and upon hearing the rival contentions of the parties the Tribunal was pleased to remand the matter to the Special Officer (Building