Unauthorized construction cannot be legitimized through retention fees if it was not initially permitted by municipal regulations.

JUDGMENT :

DEBANGSU BASAK, J.

1. Appeal is at the behest of the writ petitioner and directed against an order dated January 25, 2024 passed in W.P.A. 14410 of 2018.

2. By the impugned the order, the learned Single Judge dismissed the writ petition.

3. Learned advocate appearing for the appellant submits that, the appellant complained to the Howrah Municipal Corporation of unauthorized construction. He submits that, initially a sanction for G+3 was granted by the Howrah Municipal Corporation. The private respondent constructed beyond the sanction granted. In fact, it was in deviation of the sanction granted. Thereafter, the private respondent applied for sanction of “as made” building plan. He submits that, the Howrah Municipal Corporation granted sanction thereof illegally and wrongfully. The building presently is G+5 storied.

4. Learned advocate appearing for the appellant draws the attention of the Court to the two sanctions granted. Initially, sanction for G+3 according to him, shows a particular width of the road in front of the building. G+5 sanction which was allowed after retention fees being taken shows a width of the road which is at variance with the width shown in the G+3 sanction. Increased width of road was shown for the G+5 sanction. He submits that, there cannot be two width of the same road.

5. Learned advocate appearing for the appellant submits that, in view of the construction being unauthorized, it is imperative that Howrah Municipal Corporation invokes provisions of Section 177 of the Howrah Municipal Corporation Act, 1980 and take appropriate steps with regard thereto.

6. State, Howrah Municipal Corporation and the private respondent are represented.

7. In course of hearing of the appeal, we called for certain reports from the Howrah Municipal Corporation which were submitted from time to time. Lastly, we enquired from Howrah Municipal Corporation as to whether the width of the road presently available at the location as also whether, the G+5 sanction can be granted considering the width of the road presently available and the building rules governing the buildings located within the Municipal Corporation area of the Howrah Municipal Corporation.

8. Learned advocate appearing for the Howrah Municipal Corporation submits a report dated February 1, 2025 which be taken on record. He submits that, height of the building is to be calculated after taking into consideration various factors. He points out that, the Kolkata Municipal Corporation Building Rules apply so far as the Howrah Municipal Corporation is concerned. Referring to such report, particularly, the last paragraph thereof he submits that, it is based on available records. In the surrounding area building plan of height more than 22.5 meters were not sanctioned by Howrah Municipal Corporation. He points out that the sanctioned height of building is finalized not only on the basis of the width of the road but also, various other factors as enshrined in the Kolkata Municipal Corporation Building Rules, 2009 as amended.

9. Learned advocate appearing for the private respondent submits that, an Assistant Engineer of a Municipal Corporation cannot sit in appeal over an order passed by the Mayor in Council. He refers to a report dated December 7, 2024 of Howrah Municipal Corporation. He submits that, initially, a notice of stop work was issued on December 15, 2017. Show cause notice was issued on January 5, 2018. Hearing took place on January 10, 2018. He contends that, the higher authority passed an order for retention fees on January 5, 2018. Retention fees notice was is