1. This rule was obtained by the petitioner Ramesh Chandra Patra who was prosecuted at the instance of the Corporation of Calcutta in the Court of the Municipal Magistrate. It is alleged that a wall belonging to the petitioner encroached upon a Corporation drain, and that he had been required by the Corporation to demolish it but had not done so, The learned Magistrate has found that there has been an encroachment and he has directed the petitioner to remove the offending portion of the wall within one month from the date of the judgment. In default he has directed that the Corporation of Calcutta would be entitled to remove the wall.
2. The main argument urged against his order was that the learned Magistrate had no jurisdiction to pass an order of demolition. It was contended that Section 488, Calcutta Municipal Act which provided for punishment of certain offences only empowered the .Magistrate to inflict a fine. The learned Advocate for the Corporation points out that it is true that Section 488 .Calcutta Municipal Act only mentions the extent to which a person may be fined for not complying with a direction lawfully given by the Corporation, but he refers me to the provisions of Section 536, Calcutta Municipal Act which is in the following terms:
When under this Act or under any rule or by-law made thereunder any person is liable, in respect of any unlawful work.
(a) to pay a fine, and
(b) to be required to demolish the work.
a Magistrate may, in his discretion and subject to the provisions of Sections 363, 364 and 493, direct the said person to pay the fine and also to demolish the work.
This section empowers a Magistrate to direct an accused to pay a fine and also to demolish the work provided that the accused is liable in respect of the unlawful work (a) to pay a fine and (b) to be required to demolish the work.
3. Next, I was referred by the learned Advocate for the Calcutta Corporation to the provisional of Section 300 of the aforesaid Act which states that the Corporation may after giving notice to a person require that person to remove any wall. The learned Advocate contends that reading Section 300 and Section 488 of the aforesaid Act it is quite clear that the accused was liable to pay a fine under Section 488 and liable to be required to demolish the work under Section 300 and he contends that in these circumstances the Magistrate had the power under Section 536, Calcutta Municipal Act to order demolition. The learned Advocate for the petitioner contends that the words used in Section 536 of the aforesaid Act are 'any unlawful work' and he says that a wall was not an unlawful work and that for anything to be an unlawful work it must come within the sections in oh. 23, Calcutta Municipal Act. This Chapter begins with Section 363 and end B with Section 865. For has argument he relies upon the heading of the chapter which is as follows: 'Demolition, alteration and stopping of unlawful work.' The learned Advocate for the petitioner argued that as Section 300 (l) does not fall within oh. 23 it cannot be said that the wall or the other structure referred to in Section 300 (1) constitutes an unlawful work. I am not satisfied with this argument. The words/ 'unlawful work' have not been defined anywhere in the Act. Merely because oh. 23 is headed in the manner mentioned above, it does not follow that no other structure could be considered as unlawful work. Where there is no definition the Court should interpret the words 'unlawful work' according to its ordinary literal meaning. Now, a wall which is liable to be demolished is undoubtedly an unlawful wall and would in my opinion constituted an unlawful work. Thus I agree with the view expressed by the learned Advocate for the Corporation of Calcutta that the accused in this case was liable to be called upon to demolish this unlawful work and he was also liable to pay a fine to the extent provided in Section 488 of the aforesaid Act. Section 488 of the Act does not in my opinion circumscribe the powers of the Magistrate regarding the various orders which he may make in a case of this description. It merely states the maximum limit of the fine which he may inflict but it does not lay down that the Magistrate may not inflict any other punishment except of the levying of a fine, I am of opinion therefore that the learned Magistrate could act under Section 536, Calcutta Municipal Act and that therefore the order of demolition is not beyond his powers.
4. Next, the learned Advocate for the petitioner pointed out that the Court had ordered a fresh joint survey of the land in the presence of the accused and that no such fresh survey was held. In the circumstances he says that the Magistrate should not have found the accused guilty. This argument also is in my opinion not sound. There had been a survey before and the extent of the encroachment was shown in the map. The accused wanted a fresh survey in his presence and the Magistrate directed that this may be done. The accused, however, failed to avail himself of this indulgence and never attended upon the Surveyor. The result was that there could be no fresh survey in his presence. In the circumstances the learned Magistrate was perfectly justified in relying upon the previous survey and the report of the Surveyor.
5. Lastly, it was argued that the order does not specifically set out the extent to which the demolition should be carried out. This is'also not correct. There is the map to show the extent of the encroachment and there is no difficulty in interpreting the order of the Court. It cannot be said that the order is bad for vagueness. In the circumstances this rule is discharged.