SREEMATI SARASWATI SANTRA Vs. CHAIRMAN NORTH BARRACKPORE MUNICIPALITY

JUDGEMENT

(1.) THIS is a Rule calling upon the District Magistrate, 24-Parganas and the Chairman, North Barrackpore Municipality to show cause why the order of Sri G. Chatterjee directing the demolition of a certain wall should not be set aside. The case of the Municipality was that the petitioner Saraswati Santra had made an unauthorised construction and completed holding no. 32, otherwise than in accordance with the conditions on which her plan was sanctioned. The unauthorised act was alleged to be not maintaining a clear space of 4 ft. in between her building and the contiguous southern building of her neighbor Janaki Bauri in spite of the notice under section 321 (1) of the Bengal Municipal Act. The Municipality has prosecuted the petitioner for violation of the terms and conditions mentioned in the plan and has also prayed for an order of demolition.

(2.) THE petitioner Saraswati Santra has opposed the claim of the Municipality and has challenged the allegation that a clear space of four feet has not been observed. The learned Magistrate has found as a fact that the petitioner had made the construction in violation of the terms and conditions laid down in the plan and that upon a consideration of all facts and circumstances he should make an order for demolition as prayed for. Several points of law were raised in the court below and also before this court. It is urged that a boundary wall is not subject to any sanctioned plan and therefore the construction of a boundary wall does not authorise the Municipality to ask for its demolition.

(3.) THIS argument seems unreal. If the sanction of the Municipality be a condition precedent to the construction of any building and if any deviation from the sanctioned plan can be visited with an order of demolition, it certainly follows that whatever construction had caused this deviation may be ordered to be removed to keep the construction within the terms sanctioned in the plan. In this particular case it was the construction of the wall that had caused the violation of the terms of the plan. Clearly therefore, that part of the unauthorised construction which is responsible for this violation can be ordered to be removed.