ARIJIT BANERJEE,J - (1.) The writ petitioners/appellants approached the Learned Single Judge by filing WP No. 704 of 2012 seeking a declaration that Sections 628 and 629 of the Kolkata Municipal Corporation Act, 1980 (In short the 'KMC Act') are ultra vires the Constitution of India and for a writ of prohibition prohibiting the respondent no. 4 (Union of India) from insisting on exercising its right under the said Sections. By a judgment and order dated 20 March, 2015, the learned Single Judge dismissed the writ application by holding that the reliefs sought in the writ petition including the declaration that Sections 628 and 629 of the KMC Act are ultra vires the Constitution of India cannot be granted. Case of the appellants: -
(2.) On the basis of an application dated 8 January, 2008 under Section 393 of the KMC Act, a building permit was issued in favour of the appellant company for construction of a multi -storied building for hotel purpose on Premises No. 5/1 Munsi Prem Chand Sarani, Calcutta. The building plan was sanctioned on 16 April, 2009. Prior to obtaining the said sanction the appellants obtained clearance from various Departments and authorities, namely, Ministry of Tourism, Govt. of India, Ministry of Commerce and Industry, Govt. of India, the West Bengal Pollution Board Control, Kolkata Police, West Bengal Fire Services, International Airport Authority, Bharat Sanchar Nigam Limited, and Survey of India. While according the sanction to the building plan, the KMC did not ask for any permission under Sec. 628 of the KMC Act.
(3.) The appellants completed a 14 storied structure and started fitment work and for that purpose incurred expenditure in the region of Rs. 180 crores. Learned Counsel for the appellants contended that there exists total confusion between KMC and the Army Head Quarters, Bengal Region, as regards the identity of the area in respect whereof the provision of Sec. 628 of the KMC Act applies. Since 1984, when the KMC Act, 1980 became operative, till date there has been no clarification or understanding between the KMC and the Army Authorities in this regard. When the appellant company applied for beautification by barren land belonging to the Defence Department in front of the proposed hotel, the Army Authorities started raising objection with regard to the building constructed by the appellants company. ;