Barin Ghosh, J. - (1.) THIS writ petition is by four petitioners. The petitioners are challenging the decision of the respondent Corporation to levy conservancy charges at the rates of Rs. 8,000/ - and Rs. 12,000/ - for large premises let out for ceremonial functions having open space including garden exceeding 1000 sq. ft. and 2,500 sq. ft. respectively. In paragraphs 2, 3, 4 and 5 of the petition, the petitioners have alleged as follows:
(2.) YOUR petitioner No. 1 is in lawful occupation of a portion of premises No. 24, Camac Street, Kolkata - 700 017 and is entitled to hire out and let out the same, inter alia, for the purpose of holding functions. Your petitioner No. 2 is one of the co -owners of premises No. 4A, Short Street, Kolkata 700 016 and is entitled to hire out and let out the same, inter alia, for the purpose of holding functions.
(3.) CHAPTER 22 of the Calcutta Municipal Corporation Act 1980 deals with buildings. The said chapter covers Sections 390 to 415 of the Act. Sub -section (1) of Section 390 of the Act defines the expression "to erect a building". Sub -section (2) of the said Section defines the expressions "occupancy" or "use -group". Sub -section (2) of Section 390 of the Act is as follows : (2) 'Occupancy' or 'use group' means the principal occupancy for which a building or a part of a building is used or intended to be used. For the purpose of classification of a building according to occupancy, an occupancy shall be deemed to include subsidiary occupancies which are contingent upon it. Building with mixed occupancies shall mean those buildings in which more than one occupancy are present in -different portions thereof. The occupancy classification shall, unless, otherwise spelt out in any development plan under any law in force for the time being, include : (a) residential buildings, that is to say, any building in which sleeping accommodation is provided for normal residential purposes with or without cooking facility or dining facility or both; such building shall include one or two multi -family dwellings, hostels, apartment houses and flats, and private garages; (b) educational buildings, that is to say, any building used for school, college or day -care purposes involving assembly for instruction, education or recreation incidental to educational buildings; (c) institutional buildings, that is to say, any building or part thereof ordinarily providing sleeping accommodation for occupants and use for the purposes of medical or other treatment or care of persons suffering from physical or mental illness, disease or infirmity, care of infants, convalescences or aged persons and for penal or correctional detention in which the liberty of the inmates is restricted; such buildings shall include hospitals, clinics, dispensaries, sanatoria, custodial institutions and penal institutions like jails, prisons, mental hospitals and reformatories; (d) assembly buildings, that is to say, any building or part thereof where groups of people congregate or gather for amusement or recreation or for social, religious, patriotic, civil travel, sports, and similar other purposes, such buildings shall include theatres, motion picture house, drive -in -theatres, city hall, town halls, auditoria, exhibition halls, museums, skating rinks, gymnasium, restaurants, eating houses, hotels, boarding houses, lodging or rooming houses, guest -houses, dormitories, places of worship, dance halls, club rooms, gymkhana, passenger stations and terminals of air, surface and other public transportation services, recreation piers, and stadia; (e) business buildings, that is to say, any buildings or part thereof used for transaction of business for the keeping of accounts and records or for similar purposes; such buildings shall include offices, banks, professional establishments, court houses, and libraries for the principal function of transaction of public business and keeping of books and records, and shall also include office buildings (premises) solely or principally used as an office or for office purpose. Explanation. - For the purposes of this clause, - (i) the expression 'office purpose' shall include the purpose of administration and electrical work (including telephone and telegraph operating and operating computers), and (ii) the expression 'clerical work' shall include writing, bookkeeping, sorting papers, typing, filing, duplicating, punching cards or tapes, machine calculating, drawing of matter for publication, and editorial preparation of matter for publications; (f) mercantile buildings, that is to say, any building or part thereof used as shops,, stores or markets for display or sale of merchandise, either whole sale or retail, or for office, storage or service facilities incidental to the sale of merchandise and located in the same building; such building shall include establishments wholly or partly engaged in wholesale trade, manufacturer's wholesale outlets (including related storage facilities), warehouses, and establishments engaged in truck transport (including truck transport booking agencies); (g) industrial buildings, that is to say any building or structure or part thereof in which products or materials of all kinds and properties are fabricated assembled or processed as in assembly plants; such buildings shall include laboratories, power plants, smoke houses, refineries, gas plants, mills dairies, workshops, automobile repair garages, and printing presses; (h) storage buildings, that is to say, any building or part thereof used primarily for the storage or sheltering of goods, wares or merchandise as in warehouses; building shall include cold storages, freight depots, transit sheds, store houses, public garages, hangars, truck terminals, grain elevators barns and stables; (i) hazardous building, that it to say, any building or part thereof used for the storage, handling, manufacture or processing of highly combustible or explosive materials or products which are liable to burn with extreme rapidity or which may produce poisonous fumes or explosions during storage, handling, manufacture or profession or which involve highly corrosive, toxic or noxious alkalies, acids or other liquids or chemicals producing, flames, fumes, explosions or mixtures of dust or which result in the division of matters into fine particles subject to spontaneous ignition. Sub -section (3) of Section 390 of the Act defines the expression "alteration". The said sub -section is as follows : (3) 'alteration' means the change from one occupancy to another, or the structural change, such as the addition to any area or height, or the removal of a part of a building or the change to the structure, such as the construction of or cutting into or removal of any wall, partition, column, beam, joist, floor, or other support, or the change to or closing of any required means of ingress or egress, or the change to any fixture or equipment . 2. Section 392 of the Act provides that no person shall erect or commence to erect any building or execute any of the works specified in Section 390 of the Act except with the previous sanction of the Municipal Commissioner and in accordance with the provisions of Chapter 22 of the Act and of the rules and regulations made under the Act in relation to such erection of building or execution work. 3. The prohibition, therefore, is not to erect any building or to execute any of the works specified in Section 390 of the Act and not those specified only in Sub -section (1) of Section 390 of the Act. The works specified in Section 390 of the Act include those mentioned in Sub -section (3) of Section 390 of the Act, i.e.. alteration, which includes change from one occupancy to another. As aforesaid. Sub -section (2) of Section 390 of the Act defines "occupancy" or "use group". While defining occupancy or use group Sub -section (2) of Section 390 of the Act says that the same shall mean the principal occupancy for which a building or a part thereof is used or intended to be used It clarifies that an occupancy shall be deemed to include subsidiary occupancies which are contingent upon the principal occupancy. It further proceeds to say that a building may have mixed occupancy. The occupancy has been classified under several heads. While, however, classifying the same, the legislature has ordained that the occupancy of a residential building shall be the residential occupancy of the building in its entirety and not of a part of the building.. Similar is the case in relation to occupancy of educational buildings. In contrast the legislature ;