Demolition appeal must be remitted where the tribunal fails to assess minor deviations and regularisation claims.

The petitioners challenged the demolition order dated 16 October 2012 passed by the Special Officer (Building), Kolkata Municipal Corporation (“KMC”), in Demolition Case No. 22D/XII/10-11. The order was affirmed by the Municipal Building Tribunal in appeals numbered B.T. Appeal Nos. 110 of 2014, 5 of 2014 and 103 of 2013.

The alleged unauthorised constructions included cantilever projections on the first, second and third floors, construction of a loft and toilet/WC, shifting of internal brick walls, and conversion of a car-parking space into a residential unit.

The petitioners contended that they had not been supplied the KMC’s precis and demolition sketch, nor given inspection of the relevant records or a proper opportunity to object.

A further challenge was made to the jurisdiction of the Special Officer (Building), on the ground that he was not an officer legally competent to exercise the Municipal Commissioner’s powers under Section 400 of the 1980 Act.

1. Whether the challenge to the authority and jurisdiction of the Special Officer (Building) to exercise delegated powers under Section 400 of the Kolkata Municipal Corporation Act, 1980 could be raised at the revisional stage, when no such objection had been taken before the Special Officer or in earlier proceedings?

2. Whether the alleged deviations, including the alleged conversion of car-parking space into a residential unit, constituted minor deviations capable of regularisation under the Kolkata Municipal Corporation (Regularization of Building) Regulations, 2015?

3. Whether the Municipal Building Tribunal had adequately considered the petitioners’ factual objections and the question of regularisation before affirming the demolition order?

Section 400 of the Kolkata Municipal Corporation Act, 1980 authorises the Municipal Commissioner to order demolition of construction undertaken without or contrary to sanctioned plans, after giving the affected person a reasonable opportunity to show cause, and provides for an appeal to the Municipal Building Tribunal.

Section 48 permits delegation of the Municipal Commissioner’s powers.

The Court relied on the distinction between a fundamental statutory want of jurisdiction, which may render proceedings void, and a technical defect in the appointment or authority of the officer exercising delegated power, which may constitute a waivable irregularity, as explained in Lalit Himattal Kampani v. The President, Advertising Club, Calcutta.

The Court also applied Regulation 4 of the Kolkata Municipal Corporation (Regularization of Building) Regulations, 2015, under which unauthorised work determined to be “minor” may be regularised after considering matters including local objections, civic infrastructure, ingress and egress, structural and fire safety, environmental aspects, and the consequences of demolition.

The Court rejected the petitioners’ jurisdictional challenge at that stage because they had not objected before the Special Officer, had participated in earlier proceedings involving the same officer, and had also failed to raise the objection in prior proceedings before the High Court.

Following the reasoning in Lalit Himattal Kampani, the Court treated the alleged defect in the Special Officer’s appointment or delegation as a waivable irregularity rather than a fundamental statutory absence of jurisdiction.

However, the Court found that the Tribunal had not adequately examined the petitioners’ factual objections—particularly whether a car-parking space had actually been converted into a flat, whether two car spaces remained available, whether the deviations were minor, and whether they could be regularised under the 2015 Regulations.

Since these matters required factual verification and the Tribunal had not given detailed reasons on regularisation, the demolition order could not be conclusively sustained without further enquiry.

The Court therefore directed an Advocate Commissioners’ inspection, with assistance from KMC engineers, to assess the number of occupants, existing car spaces, the alleged conversion, objections of occupants and neighbours, the specified deviations, and their effect on structural safety.

Nevertheless, it found that the Municipal Building Tribunal had failed to properly consider the disputed factual questions and the possibility of regularisation of minor deviations.

The Tribunal’s judgment and order dated 18 September 2015 were accordingly set aside, and the matters were remitted for reconsideration after receipt of the Advocate Commissioners’ report.

Two Advocates were appointed as Joint Commissioners to inspect the premises, take photographs, examine the alleged deviations and car-parking arrangements, and obtain the assistance of KMC engineers regarding structural safety.

Demolition was directed to remain stayed during the pendency of the appeals, and the Tribunal was requested to decide the appeals expeditiously, preferably within three months of receiving the report.