Pradyot Kumar Banerjee, J. - (1.) This application is at the instance of the Commissioner, Corporation of Calcutta challenging the order passed by the Building Tribunal. The facts leading to the case is that the opposite parties nos. 1 and 2 are the owners of the premises in question. The previous owner of the premises No. 58/1A, Ganesh Chandra Avenue, Calcutta filed a plan for sanction and by B.S Sanction No. 101 of District-II issued on 20th February, 1968 the Corporation permitted her to construct a two storeyed structure with a staircase room at the 3rd storey at the premises No. 58/1 A, Ganesh Chandra Avenue, Calcutta, subject to demolition of the existing structures to provide open spaces as per plan before starting of the constructions. The Corporation recorded a complaint about the unauthorised and illegal construction at the said premises No. 58/1A, Ganesh Chandra Avenue from the respondent No. 3 and the City Architect, Corporation of Calcutta, directed the Building Inspector to inspect the site and submit a report. The Building Inspector inspector inspected the premises on 29th March, 1972 and submitted a report with a sketch plan about the unauthorised construction. It is stated in the said report that he found a 6 storeyed building with 5 masonary walls and R.C. columns have ben constructed without sanction and in deviation of the B.S. No. 101 (II) dated 20th February, 1968 as per sketch. In the said report he further pointed out that the number of mandatory requirements of Rule 19 of Schedule 16 of the Calcutta Municipal Act was violated. In view of the said report a proceeding under section 414 of the Calcutta municipal Act was drawn up and notices were delivered on the occupier and the owners of the premises. Inspite of the notices, neither the owners nor the occupiers appeared. No cause was shown. The demolition case was fixed for hearing before the Commissioner on 7th July, 1972. The notice of the said date of hearing was served on the complainant-respondent No. 3 and the owners and occupiers. The respondent No. 1 Sailendra Nath Banerjee received the notice addressed to Sm. Nirmala Bala Banerjee, the recorded owner on 5th July, 1972. It was brought to the notice of the Commissioner that Sm. Nirmala Banerjee had died long ago. On 7th July, 1972 the case was heard by the Commissioner, Corporation of Calcutta. After hearing of the matter the Commissioner passed an order of demolition of the "offending" building. In the meantime Sailendra Nath and Gopinath Banerjee appeared as owners and submitted through their lawyer that they are ready to pay the penalty for the unauthorised portion, and they are also ready to demolish the 5" walls and replace these with walls of adequate thickness as required under the rule and there was no infringement of rule 25. The Commissioner however ordered that the certain portion of the unauthorised construction will have to demolished. It was held, inter alia, that rule 25 had been violated and the unauthorised construction cannot be allowed to continue and should be demolished except that construction upto a height of 26' ft. can be permitted subject to modification of the plan after permitting proper set back in order to comply fully with all the road angles and of course by praying necessary charges. Thickness of external walls below 10" should also be replaced by walls of adequate thickness as prescribed in the rules. Being aggrieved by the said order of the Commissioner, the owners preferred an appeal under section 414A(3) of the Calcutta Municipal Act before the Building Tribunal. The Building Tribunal in course of disposing of the appeal affirmed the findings of the Commissioner regarding the unauthorised construction. The Building Tribunal also held that the unauthorised construction of 3 to 6 storeyed building will stand in exercise of its discretion under section 414(3) of the Act on payment of penalty and completing within the time specified. Being aggrieved by the said order the petitioner, Commissioner, Corporation of Calcutta filed the present application.
(2.) Mr. Banerjee on behalf of the Corporation contended that the Building Tribunal has no Jurisdiction to direct the unauthorised construction to stand on payment of penalty as alleged, though the Commissioner has the said power.
(3.) Mr. Rajat Kumar Basu on behalf of the respondents nos. 1 and 2 however contended that he has carried out the order of the Building Tribunal and deposited penalty imposed on him. Mr. Basu did not argue that the construction of 3 storey to 6 storey were not unauthorised, The question for consideration in this case is whether the Building Tribunal has jurisdiction to allow unauthorised construction to continue in its discretion by imposing a penalty on the offending owners in respect of the offending structure.;