CORPORATION OF CALCUTTA Vs. BANGSHIDHAR BIDASARIA

JUDGEMENT

(1.) This is a Rule calling upon the Municipal Magistrate of Calcutta and the opposite party to show cause why the order of the learned Magistrate dated 29 April 1937 should not be set aside. This order was made upon an application made by the Corporation of Calcutta under the provisions of Section 363, Calcutta Municipal Act (Bengal Act 3 of 1923), asking for demolition of certain structures at premises No. 23, Kalakar Street, alleged to have been constructed without sanction or in deviation of sanction. The infringements of the Building Rules complained of were of Rules 23, 29, 30 and 91 of Schedule 17 of the Act. In other words it was alleged that one-third open space had not been left in the premises, that the "courtyard angle" had been cut, and that so also the "back angle". In accordance with the usual procedure, the case had been placed before one of the Buildings Standing Committees of the Corporation, and upon considering the departmental report, the Committee resolved that an application should be made to the Municipal Magistrate for demolition.

(2.) As appears from the judgment, the learned Magistrate went into all the grounds which were urged before him on behalf of the Corporation. Regarding the first objection as to insufficiency of open space, this is what he said : "I find that there was no diminution of the open space"; and again "In fact the area of the open space left is more than sufficient". As regards the courtyard angle, he said that it had been entirely cut on the north and the south by the verandahs, but was of opinion that "rooms with open verandahs are more insanitary and uncomfortable than rooms with covered verandahs", and in that view he was inclined to overlook this particular infringement. "Whether he was right or wrong in the opinion he expressed is hardly material: the point to note is that he had applied his mind to the matter and upon that came to a conclusion which happened to be favourable to the party. As for the objection regarding the back angle, he also considered the matter, and in view of the fact that there was back space of 16 feet and 20 feet, and there was a public lane beyond belonging to the Corporation which was not likely to be covered up at any time, he held that the objection was not very serious. At the end he expressed his final conclusions thus: "In this view"- that is in view of the reasons already given-"I consider that from the sanitary point of view these "unauthorized structures may be allowed to stand". In other words it was his opinion upon the facts that this was not a fit case for a demolition order. It is not disputed that in that view he might properly make an order rejecting the Corporation's application, and such an order would in effect amount: to an acquittal of the petitioners of the charge of erecting the unauthorized structures-treating the proceedings as criminal proceedings, as I am told these proceedings must be treated on the authorities of this Court. The learned Magistrate however did not stop there, but went on to make what may be regarded as a supplementary order, and this has given rise to the present application. Having stated what I have quoted, he went on to say in continuation of the remarks that the opposite party should be penalized under Section 493 for not obtaining sanction before (for) their construction. The two opposite parties are therefore convicted under Section 193 and fined Rs. 100 each.

(3.) Mr. Basu appearing on behalf of the Corporation contends that such an order under Section 493 could not be made by the Magistrate in the present proceedings. He points on the one Band to the last Proviso of Sub-section (1) of Section 363, and on the other to Proviso to Section 493 and says that the only order the Magistrate could and ought to have made was an order for demolition. The Proviso in Section 363 is this, and there is a similar Proviso in Section 364 as well: Provided that where the Corporation have instituted proceedings under Section 493, no application shall be made under this section, while Section 493 contains a Proviso in these terms: Provided that where an application has been made under Section 363 or Section 364 no proceedings shall be instituted by the Corporation under this section.