Carnduff and Richardson, JJ.
1. This is a rule to show cause why an order passed by the Municipal Magistrate for the demolition of a building in Calcutta should not be set aside on two grounds, namely, first, because the Secretary to the Corporation had no power to make the application which ended in the order complained of; and, secondly, because the building in question had been duly sanctioned.
2. Taking the second ground first, we find that in the month of August 1908, sanction was accorded by the District Surveyor, under powers delegated to him by the Chairman, to the erection of a certain building. Subsequently another application was made for sanction to an addition to the building as originally proposed, and this likewise was granted by the District Surveyor. No building operations of any kind were begun till after the second application had been disposed of. The contention of Mr. Stokes on behalf of the Municipality is that the District Surveyor had no authority to grant the second sanction, inasmuch as the case was one of sanction to an addition to a building falling under Section 391 of the Calcutta Municipal Act, and, therefore, the only authority by which the sanction could have been granted, was the General Committee. But it seems to us to be perfectly clear that Section 391 of the Act applies only to alterations of, and additions to, existing buildings, and that it is impossible to accept the contention that a supplementary application, proposing an addition to an already sanctioned plan of a contemplated building, can be held to fall within its scope. We think, then, that the additional erection, which was made on the strength of the District Surveyor's approval, was duly sanctioned, and that on this ground the rule must be made absolute.
3. The second point is that the Secretary to the Corporation, who is, be it remembered, also Secretary to the General Committee, had no power to make the application to the Magistrate. As we have disposed of the rule on the other ground, it is unnecessary for us to say more than that we are inclined to think that, if there was any defect or irregularity in this connection, it is covered by Section 102(1)(c) of the Act, which provides that 'no act done or proceeding taken under the Act shall be questioned on the ground merely of any defect or irregularity not affecting the merits of the case.' Dr. Rashbehary Ghose, who has appeared on behalf of the petitioner, admits that there can be no question as to the General Committee's having expressly approved of the making of an application under Section 449. Admittedly, therefore, the fact remains that the application was made in pursuance of the wishes of the General Committee, and, if the presentation of it by the Secretary to that Committee was not strictly in accordance with the requirements of the Act, we cannot, at the moment, think of a more appropriate case for the application of Section 102.
4. The rule is made absolute, and the order is set aside.