IMPORTANT POINT
The court established that mandatory building regulations cannot be relaxed for financial gain, and charges cannot be imposed without legal authority.

JUDGMENT :

AMRITA SINHA, J.

1. The petitioner is aggrieved by the demand raised by the Corporation directing the petitioner to pay a sum of Rs. 8,68,23,808/- only for sanction of the plan proposal submitted by the petitioner. The petitioner is particularly aggrieved by the demand of miscellaneous charges amounting to Rs. 8,00,44,267/- assessed for sanction.

2. The petitioner submits that there is no provision in law under which miscellaneous charges may be imposed for sanction of plan proposal. It has been submitted that an old dilapidated structure exists at premises no. 98, Collin Street under Borough VI of the Corporation. The petitioner intends to demolish the old structure and raise new construction thereon. The petitioner intends to obtain benefit under Rule 142 of the Kolkata Municipal Corporation Building Rules, 2009.

3. Rule 142 provides for certain relaxations which are available at the time of construction of new buildings in place and instead of the existing building after demolition thereof. The schedule of fees and charges for sanction of building permit is specified and there is no scope for demanding miscellaneous charges for sanction of the building plan proposal.

4. Prayer has been made for setting aside the impugned demand and to direct the Corporation to issue the sanctioned building plan upon levying the prevailing fees.

5. The Corporation has filed a report by way of affidavit wherein it has been disclosed that the plan proposal submitted by the petitioner was placed in the meeting of the Municipal Building Committee and the same was examined by the Building Committee in details. It was noted that the plan proposal involves rehabilitation of eight tenants. The proposal for raising construction has been made in such a manner that there will be infringement of the mandatory side open spaces practically on all four sides. The total existing floor area is 1715.815 sq. mts. out of which the tenants’ area is 1575.942 sq. mts. The permissible top elevation is 56.99 mts. The area of the plot is 860.533 sq. mts. (physical) and the width of the abutting road on the western side of the plot is 9.296 mts.

6. Considering the rehabilitation of tenants under Rule 142 the Committee suggested that the applicant has to comply the required mandatory open spaces as per Rule 62 of the building Rules. The Committee recommended that the applicant has to obtain revised FSR before commencement and the area is to be re-checked before demand. The recommendation of the Municipal Building Committee was required to be approved by the MMIC (Building)/the Mayor, in order to enable the department to process the plan proposal for sanction.

7. The resolution of the meeting of the Building Committee was placed before the Mayor and the Mayor adopted resolution on 29th May, 2023 that the proposal for sanction of G+11 storied assembly building of height 38.475 mts. under Section 393 of the Kolkata Municipal Corporation Act, 1980, read with Rule 142 of the Building Rules, 2009 and the Circular issued is taken up for consideration and approved.

8. The resolution records that the applicant has to pay necessary fees and charges as per KMC schedule of rates and the applicant has to pay additional fees and charges for violation of the mandatory open spaces as detailed in the agenda item considering the IGR value as per the schedule of rates of KMC. The applicant has to obtain revised FSR before commencement. The DG (Building) was directed to take necessary action.

9. On approval of the plan proposal the charges required to be paid for sanction of the plan was calculated. At the time of calculation, the fees and charges for violation of the mandatory open space under Section 400(1) of the Act was prepared. Relying upon the calculation dated 11th July, 2023, demand was raised on 13th July, 2023 and the due date for payment mentioned in the demand notice was 28th July, 2023.

10. The instant writ petition has been filed on 16th January, 2024 alleging that impositi