- (1.) This appeal has been preferred at the instance of the Kolkata Municipal Corporation and its different functionaries assailing the judgment and order dated 14th May, 2009 passed by a learned Judge of this Court whereby and whereunder the said learned Judge allowed the writ petition on merits and also imposed cost to the tune of Rs. 10,000/- on the Appellants herein. The material facts leading to the present appeal may be summarised thus:
(2.) The Respondents/writ Petitioners applied for reconstruction of the four storied tenanted dilapidated building at premises No. 1 Mir Bahar Ghat St. within Borough - IV of Kolkata Municipal Corporation by submitting a plan under Rule 3 (2) (e) and (k) of the Kolkata Municipal Corporation Building Rules, 1990 read with Section 410 of the Kolkata Municipal Corporation Act, 1980. The competent authority of the Kolkata Municipal Corporation thereafter on 8th October, 2005 allowed the Respondents/writ Petitioners to reconstruct the aforesaid four storied tenanted dilapidated building by sanctioning the building plan being B. S. Plan No. 50, Borough - IV. On inspection of the premises on 13th July, 2007 it was found by the Kolkata Municipal Corporation that the Respondents/writ Petitioners in course of repair/reconstruction work at the premises in question carried on unauthorised construction in violation of the sanctioned plan and therefore, a notice under Section 400(1) of the Kolkata Municipal Corporation Act, 1980 was served in order to stop any further construction. The Kolkata Municipal Corporation Authority thereafter initiated a demolition proceeding being Demolition Case No. 49-D/IV/07-08. The said demolition case was heard by the Special Officer (Building) of the Kolkata Municipal Corporation and an order was passed on 31/01/2008 for retention of the unauthorised construction of the said building on certain terms and conditions upon considering the fact that the premises in question is in occupation of several tenants. The Respondents/writ Petitioners received the said order on 12th May, 2008 by hand. Pursuant to the aforesaid order, Kolkata Municipal Corporation Authority demanded retention charges to the tune of Rs. 78,00,940/- on the basis of the schedule of charges fixed for the year 2008-09 which was effective from April, 2008. The Respondents/writ Petitioners being aggrieved by the aforesaid demand filed the writ petition. Initially on the said writ petition another learned Judge of this Court passed an order directing the Kolkata Municipal Corporation Authorities to calculate the charges as per circular of 2007-08 and in compliance with the said order a demand for Rs. 31,80,379.00 was raised towards the retention charges of the said unauthorised construction. In course of hearing of the writ petition learned Single Judge passed an order directing the Kolkata Municipal Corporation Authorities to file an affidavit stating the manner on the basis whereof the aforesaid calculations amounting to Rs. 31,80,379.00 were arrived at. In compliance with the aforesaid direction an affidavit were filed by the Kolkata Municipal Corporation Authority wherein the details of the calculations were mentioned as hereunder: i) Charges for sanction of Mercantile Building for an area of 428.102 sq. meter = 112.6x6x428.102 (Normal sanction fee Rs. 112.6) per sq. meter Rs. 2,89,225.70 Retention charges for sanction of unauthorised construction for the area 428.102 sq. meter = 2,89,225.70 Rs. 28,92,257.00 ii) 5% extra for C zone area (i.e. Rs. 28,92257 x 5/100 Rs. 1,44,6122.00 iii) Surcharge @ Rs. 140/- per sq. meter 140 x 420.102 Rs. 59,934.00 iv) Sketch fees @ Rs. 2000 x 2 ( for Rs. 4,000.00 mercantile Building) v) Violation of Rule 56 : Area 226.44 sq., 5,467 Sq. m 231.907 Sq. m Violation of Rule 57 : 23,085 Sq. m. 10.26 33.345 Total area of violation Of Rule576 & 57 (231 . 907) Sq. M. + 33 . 345 265.252 Sq. M. Retention Charges for 265.252 Sq. M. @ Rs. 300/- per sq. m. (265.252 x 300) Rs. 79,576.00 Total : Rs. 31,80,379.00
(3.) It was argued before the learned Single Judge on behalf of the Respondents/writ Petitioners that the Kolkata Municipal Corporation Authorities are not entitled to charge penalty. The learned senior counsel of the Appellant categorically submitted before the learned Single Judge that the writ Petitioners are liable to pay all the charges, as claimed by the Kolkata Municipal Corporation Authorities save and except the amount arrived at by applying the multiplier of ten i.e. the sum of Rs. 28,92,257/-. The learned Single Judge upon hearing the submissions of both the parties upheld the contentions of the writ Petitioners and allowed the writ petition with costs. Assailing the said judgment and order passed by the learned Single Judge Kolkata Municipal Corporation Authorities preferred the instant appeal.;