1. This revisional application is directed against an order of Shri H. N. Mukherji 3rd Municipal Magistrate, Calcutta, ordering under Section 363, Calcutta Municipal Act, the demolition of an unauthorised projecting verandah at the second floor level of the dwelling house of the petitioner Renubala Dutta, at No. 42B, Akhil Mistry Lane, Calcutta.
The case was instituted by the Corporation at the instance of the owner of the adjoining southern premises, Hara Kumar Majumdar, who complained that the petitioner by erecting the projecting verandahs on the southern side of her building at the 1st and 2nd floor level had encroached upon his land and had caused obstruction of light and air to his premises. The Corporation Officers made an enquiry into the case and found that there were several infringements of the Building Rules in addition to the encroachment complained of by the owner of the adjoining premises. Thus, it was found that the whole space had been built upon in No. 42B, Akhil Mistry Lane without leaving one-third area vacant as required by Rule 23 of Schedule XVII. It was found that there was no back space 10 ft. wide and no side space 4 ft. wide. As regards the two verandahs on the south side, it was found that these unauthorised, verandahs extended over the adjoining premises on the south. On these findings, a complaint was made to title Municipal Magistrate under Section 363, Calcutta Municipal Act, 1923 for demolition of the unauthorised verandahs.
2. The defence taken was that the verandahs had long been in existence and had been constructed more than five years before the institution of the proceedings under Section 363, Calcutta Municipal Act. The learned Magistrate found that the verandah at the 1st floor level, though it was an encroachment on the land of the adjoining premises on the south, had been built more than five years before the institution of the proceedings and that the verandah at the 2nd floor level had been built within five years from the date of the institution of the proceedings, and, accordingly, the learned Magistrate directed demolition of the unauthorised verandah at the 2nd floor level, and refused the prayer for demolition of the unauthorised verandah at the 1st floor level.
3. Mr. Das Gupta appearing for the petitioner has urged that the learned Magistrate has confined himself solely to the point of limitation and has not made any other finding to justify his order of demolition e. g., that the unauthorised construction constituted a serious breach of the Building Rules or that it obstructed light and air of the premises on the south, i.e., the premises belonging to Hara Kumar Majumdar on whose complaint the proceedings had been instituted by the Corporation. It appears, however, from the records that these points were not seriously challenged by the petitioner. The sketch map prepared by the Corporation Officer was proved at the hearing and it showed that the building itself covered the entire area of the premises No. 42B, Akhil Mistry Lane and that the two verandahs on the southern side projected to the extent of 2 ft. 3 in. beyond the limits of the premises at No. 42B, Akhil Mistry Lane and to that extent, encroached on the premises of the neighbour Hara Kumar Majumdar.
There was the evidence of Hara Kumar Majumdar in the case that the unauthorised verandahs on the southern side of the premises of the petitioner were obstructing his light and air and that was why he had been compelled to file his complaint before the Corporation authorities. This evidence as to obstruction of light and air was corroborated by the Officer of the Corporation who was examined in the case. Further, a reference to the sketch map makes it clear that there must be such obstruction of light and air, because the verandahs encroached on the land of the southern neighbour to the extent of 2 ft. 3 in. and thus the free space left on the side of that neighbour was reduced from 4 ft. to 1 ft. 9 in. leaving hardly space enough for circulation of air and infiltration of light.
4. Mr. Das Gupta has urged that when the verandah on the 1st floor has not been ordered to be demolished, there is no point in directing the demolition of the verandah on the 2nd floor which is situated vertically above the verandah on the 1st floor. Now, it is no doubt true that the verandah on the 2nd floor is situated vertically above the space which is occupied by the verandah of the 1st floor. But, it is clear that the projection at a higher level as at the 2nd floor will shut out light and air to a greater extent from the neighbouring premises. Therefore, even though there can be no order for the demolition of the verandah in the 1st floor, there is nothing wrong in directing demolition of the verandah on the 2nd floor.
5. Mr. Das Gupta has referred to certain rulings in support of his argument that when the Corporation asks for demolition of premises for breach of Building Rules or for any other reason, the Court has to consider the equities as between the Corporation and the offending owner against whom the proceedings under Section 363 have been started. In support of this proposition, he has referred to the case of -- 'Chuni Lal Dutt v. Corporation of Calcutta', 11 Cal W. N. 30 (A). It was held in that case as follows:
'It is discretionary with the Municipal Magistrate to make or not an order of demolition under Section 449, Calcutta Municipal Act (which corresponds to Section 363, Calcutta Municipal Act, 1923). This discretion is to be exercised after receiving evidence and hearing the defence.'
As regards this proposition, there can be no doubt that this still holds good. It is not in every case that the Municipal Magistrate is bound to order demolition, but only when he finds that there has been a serious infringement of the Building Rules or there has been obstruction of light and air of neighbouring premises that he will order demolition. It is not for every minor infringement of Building Rules that the Municipal Magistrate will order demolition. In the above-mentioned case, however, it was further held that it was the duty of the Municipal Corporation to procure the demolition of a building which was a danger or obstruction to the public, and that in other respects, the Corporation stood in practically the same position as a private individual wronged by a tortious act.
As regards this statement of law, we must point out that since 1906 when this decision was given, the law has been substantially altered. In the Municipal Act, 1899, there was a provision enabling simultaneous proceedings for demolition and for monetary penalty for infringement of Building Rules. The Act of 1923 provides that where the Corporation has instituted proceedings under Section 493 for imposing a monetary penalty for infringement of the Building Rules, no application shall be made under Section 363 for demolition. Again, the Act of 1899 did not provide the period of limitation within which the application for demolition could be filed, but the Act of 1923 provides a period of five years as the period within which an application for demolition must be filed.
Further, in the case of -- 'Chuni Lal Dutt v. Corporation of Calcutta, (A)', their Lordships laid down that if the Corporation acquiesced in the unauthorised building by making an assessment, it could not institute a proceeding for demolition. This has been expressly negatived in the Act of 1923 in proviso (b) to Sub-section (1) of Section 263, which provides that notwithstanding the fact that the valuation of the building has been made by the Executive Officer of the Calcutta Corporation for assessment of consolidated rate, there may be a proceeding for demolition of unauthorised construction under Section 363, Calcutta Municipal Act. Therefore, the observations of their Lordships that the Corporation must be deemed to be in the same position as a private individual wronged by a tortious act can hardly be held applicable under the existing law. The only thing that the Court has now to see is whether there has been a serious breach of the rules or whether there is any other circumstance to justify an order of demolition. The Magistrate has still a discretion under the section to order or not to order demolition and he must exercise his discretion judicially. But it does not appear to be correct any longer to say that the equitable considerations which apply in an application for mandatory injunction by a private party would also apply to the Corporation in an application under Section 363, Calcutta Municipal Act. This was also the view taken in -- 'Dhanapati Debi v. Corporation of Calcutta', : AIR1952Cal467 (B).
6. In the present case though the learned Magistrate did not clearly make such a finding in view of the defence taken before him, it is clear that there has been obstruction of light and air by the projecting verandah on the 2nd floor and since the verandah constitutes encroachment on the land of a neighbour along a strip 2 ft. 3 in wide, it is a case eminently fit for an order for demolition. Nobody has the right to encroach on a neighbour's land in that way.
7. Accordingly, this application fails and the Rule is discharged.
8. In view of the fact that the time given by the Municipal Magistrate for demolition by the petitioner has expired, we direct that the petitioner must remove the projecting verandah on the 2nd floor within a period of three months from this date, and in default, the Corporation will be entitled to have the same demolished at the cost of the petitioner.
J.P. Mitter, J.
9. I agree.