Mitra and Holmwood, JJ.
1. This is a Rule calling upon the Municipal Magistrate of Calcutta to show cause why his order, dated the 23rd February 1906, directing the demolition of the existing godown belonging to the petitioner within two months from the date of the order, should not be set aside.
2. There are a number of grounds taken in the petition presented to this Court, but it is not necessary for us to deal with them, except the fourth ground, namely, that the order of demolition is not warranted by the provisions of Section 410 of Act III of 1899 (B.C.).
3. The godown, which the petitioner has been directed to demolish by the order of the 23rd February, has been in existence admittedly for a long time. It is not covered by the plan which was sanctioned by the Corporation in the year 1902. Section 449 (1) directs that, on the application by the General Committee of the Corporation, the Magistrate may make an order directing that the work done, or so much of the work as has been unlawfully executed, be demolished by the owner of the building, or altered by him to the satisfaction of the Committee, as the case may require, or direct that the work done, or so much of it as has been unlawfully done, be demolished or altered by the Chairman at the expense of the owner of the building.
4. The work according to the Act must be done in accordance with the plan sanctioned and according to the bye-laws in force with reference to the erection of buildings, and the demolition that may be directed under Section 449 of the Act must have reference to such work and not buildings outside the sanctioned plan and existing for a long time. In the present case the godown, which has been directed to be demolished, was never a part of the plan sanctioned by the Corporation. It was, as we have said, in existence for very many years. The building, no doubt, according to the finding of the Magistrate, was erected in contravention of the plan sanctioned by the Corporation, inasmuch as it did not leave a space open as required by Rule 17 of Schedule XVII of the bye-laws, if that rule applies to the present case. But authority is not given by Section 449 of the Act to the Magistrate to direct the demolition of the whole or a part of a building, which has been in existence for years and was in existence before the sanction was given. The section refers only to buildings erected in contravention of the plan submitted and sanctioned by the Corporation.
5. We, therefore, set aside the order of the Magistrate, it being open to the Corporation to proceed, if they are so advised, in any other form.
6. We express no opinion on any of the other points argued before us.