- (1.) In these rules the Petitioners challenge the order passed by the Building Tribunal constituted under the Calcutta Municipal Act being dated March 24, 1976, read with April 24, 1976. The demolition of unauthorised construction was condoned on condition. There was an order dated September 27, 1975, by which the Building Tribunal condoned the demolition of unauthorised construction on condition that the Appellants in each appeals paid the penalty and sketch fees within one month from the date of determination by the Deputy Building Surveyor. The facts of the case in these 5 appeals are that the Building Inspector on inspection of the premises which are subject-matters of the appeals found the construction of a factory upto the roof level at premises of appeal No. 39 of 1974-75 and complete construction of a factory excluding the plastering and flooring work at the premises of appeal No. 49 of 1974-75 for which notices under Section 416 of the Act were served upon the Appellants of these two appeals for stopping any further work of construction. Thereupon a notice was served under Section 414(1) of the Calcutta Municipal Act with the copies of the precis containing the description of the unauthorised structure of the building rules referred to in the said order in respect of the disputed structure. The Deputy Commissioner heard all the demolition cases and came to a finding that all these constructions were raised recently and illegally and without any sanction of the Corporation in gross violation of the Building Rules. He, accordingly, passed the order for demolition of the unauthorised structures. He, further, directed that the demolition order would not be given effect to if the respective parties took steps under Section 371 of the Act regarding the passage and submitted plan for sanction of the disputed structures. Being aggrieved by the said order of the Deputy Commissioner, the Appellants, the Petitioners herein, preferred 5 appeals before the Building Tribunal. The appeals were allowed by the Building Tribunal on condition and the impugned order of the Deputy Commissioner was set aside and the demolition cases were dropped provided that the Appellants of such appeal paid the necessary penalties and sketch fees for their respective unauthorised construction in dispute within one month from the date of determination of the same by the D.B.S, The Deputy Building Surveyor thereupon fixed the sketch fees and penalties at Rs. 1,04,250 which on recalculation came to Rs. 78,250 in so far as the appeal No. 39 of 1974-75 was concerned. Similarly, in the other appeals the assessments were made on the basis of the resolution of the Corporation dated March 20, 1970, as laid down in the Corporation Budget and approved by the resolution of the Corporation. Being aggrieved by the fixation of the amount the Petitioners moved this Court under Article 227 of the Constitution and obtained the present rule. It must be made clear that the order of the Building Tribunal passed on September 27, 1975, is not challenged by any of the parties to this rule.
(2.) Mr. Dutt on behalf of the Petitioners in this rule contended, inter alia, that both the Deputy Commissioner and the Building Tribunal are statutory bodies and they cannot impose penalty not prescribed by the statute. It has, further, been argued by Mr. Dutt that the Deputy Commissioner of the Corporation of Calcutta has a power under Section 414 to demolish an unauthorised construction to Stand, but his discretion must be judicially exercised and not arbitrarily. It is argued by Mr. Dutt that in these cases the Building Tribunal directed that the unauthorised construction might stand on payment of penalty. The only penalty can be imposed by the authorities concerned under Section 542 of the Calcutta Municipal Act and not otherwise and as the Building Tribunal has fixed more than Rs. 1,00,000 as penalty, the fixation of the penalty cannot be allowed to stand. The order, according to Mr. Dutt, is bad to that extent.
(3.) Mr. P.N. Mitter on behalf of the opposite party contended, firstly, that the Commissioner has discretion in the matter of unauthorised construction and that discretion having been exercised by the Commissioner in a particular way it is not amenable under Article 227 of the Constitution of India unless it is found that the discretion is arbitrarily exercised. It is argued by Mr. Mitter further that the imposition of money in order to allow the unauthorised construction to continue to exist is only a term for exercise and the imposition of the conditional payment under the resolution of the Corporation is analogous to stay order passed by the Court. Mr. Mitter argued that Section 542 of the Calcutta Municipal Act had no application in the facts of this case. The penalty which may be imposed under Section 542 cannot be imposed by the Commissioner inasmuch as they are offences and are triable by the Municipal Magistrate in accordance with the Code of Criminal Procedure. The imposition of penalty, therefore, cannot come within the meaning of Section 542 of the Act.;