1. We have heard the learned Counsel in support of this rule and the learned Vakil who has appeared on behalf of the Municipality to oppose it; and in our opinion the rule must be discharged.
2. The learned Vakil points out that the rule has been obtained with reference to two separate orders,--one, an order passed under Section 574 fining the petitioner Rs. 50 on the 1st June 1908, for failure to comply with an order under Section 451 of the Municipal Act, and the other under Section 449 of the Calcutta Municipal Act, directing demolition of the fourth storey of the building.
3. In support of the rule it has been argued that the Municipal Magistrate is wrong in the view which he has taken that the building belonging to the petitioner consisted of two holdings and not of one holding and that if the Magistrate had accepted the view that the two holdings were one, then the construction of the fourth story could not be an infringement of the rules passed under the Act, because the petitioner would be entitled to an angle of 56 1/2 degrees instead of an angle of 45 degrees. On this point, however, the Municipal Magistrate has come to a distinct finding that the two holdings were distinct originally and that they have been amalgamated by the petitioner. We see no reason to hold that that finding is not supported by the evidence and that being so, we do not think that the argument advanced on behalf of the petitioner can succeed that he is entitled with reference to the building, the subject of the present case, to take advantage of an angle of 56 1/2 degrees.
4. The second point taken in support of the rule is that the Municipal Magistrate has erred in law in not making any allowance in favour of the petitioner as to the height of the building on account of the bathing platform on the opposite side of the road which runs along the whole face of the building.
5. It has been contended that in consequence of some previous decision of the predecessor in office of the present Magistrate, the petitioner is entitled to have the line forming the angle of 45 degrees drawn from the side of the platform farthest from the street and not from the street alignment on the side of the street. We think, however, that the view which the Municipal Magistrate has taken is correct and is in accordance with law, that the line for determining the angle of 45 degrees must be drawn from the street alignment on the side of the street and from no other spot. This is what is provided in Rule No. 2 of the rules, Schedule 17 of the Act, and we think that the Petitioner is bound by that rule.
6. As these two points fail and as the order of the Municipal Magistrate passed under the two sections appears to be in accordance with law, we discharge the rule.