1. This is a Rule calling upon the Municipal Magistrate of Calcutta and the opposite party to show cause why the order of the learned Magistrate dated 29th April 1937 should not be set aside. This order was made upon an application made by the Corporation of Calcutta under the provisions of Section 363, Calcutta Municipal Act (Bengal Act 3 of 1923), asking for demolition of certain structures at premises No. 23, Kalakar Street, alleged to have been constructed without sanction or in deviation of sanction. The infringements of the Building Rules complained of were of Rules 23, 29, 30 and 91 of Schedule 17 of the Act. In other words it was alleged that one-third open space had not been left in the premises, that the 'courtyard angle' had been cut, and that so also the 'back angle'. In accordance with the usual procedure, the case had been placed before one of the Buildings Standing Committees of the Corporation, and upon considering the departmental report, the Committee resolved that an application should be made to the Municipal Magistrate for demolition.
2. As appears from the judgment, the learned Magistrate went into all the grounds which were urged before him on behalf of the Corporation. Regarding the first objection as to insufficiency of open space, this is what he said : 'I find that there was no diminution of the open space'; and again 'In fact the area of the open space left is more than sufficient'. As regards the courtyard angle, he said that it had been entirely cut on the north and the south by the verandahs, but was of opinion that 'rooms with open verandahs are more insanitary and uncomfortable than rooms with covered verandahs', and in that view he was inclined to overlook this particular infringement. 'Whether he was right or wrong in the opinion he expressed is hardly material: the point to note is that he had applied his mind to the matter and upon that came to a conclusion which happened to be favourable to the party. As for the objection regarding the back angle, he also considered the matter, and in view of the fact that there was back space of 16 feet and 20 feet, and there was a public lane beyond belonging to the Corporation which was not likely to be covered up at any time, he held that the objection was not very serious. At the end he expressed his final conclusions thus: 'In this view'- that is in view of the reasons already given-'I consider that from the sanitary point of view these 'unauthorized structures may be allowed to stand'. In other words it was his opinion upon the facts that this was not a fit case for a demolition order. It is not disputed that in that view he might properly make an order rejecting the Corporation's application, and such an order would in effect amount: to an acquittal of the petitioners of the charge of erecting the unauthorized structures-treating the proceedings as criminal proceedings, as I am told these proceedings must be treated on the authorities of this Court. The learned Magistrate however did not stop there, but went on to make what may be regarded as a supplementary order, and this has given rise to the present application. Having stated what I have quoted, he went on to say in continuation of the remarks
that the opposite party should be penalized under Section 493 for not obtaining sanction before (for) their construction. The two opposite parties are therefore convicted under Section 193 and fined Rs. 100 each.
3. Mr. Basu appearing on behalf of the Corporation contends that such an order under Section 493 could not be made by the Magistrate in the present proceedings. He points on the one Band to the last Proviso of Sub-section (1) of Section 363, and on the other to Proviso to Section 493 and says that the only order the Magistrate could and ought to have made was an order for demolition. The Proviso in Section 363 is this, and there is a similar Proviso in Section 364 as well:
Provided that where the Corporation have instituted proceedings under Section 493, no application shall be made under this section,
while Section 493 contains a Proviso in these terms:
Provided that where an application has been made under Section 363 or Section 364 no proceedings shall be instituted by the Corporation under this section.
4. It is obvious that the two proceedings are mutually exclusive, and resort to the one bars resort to the other. Mr. Banerjee's answer-and it would appear to be an effective answer-is that these Provisos merely prevent the Corporation from instituting proceedings under both sections in the same case, whether simultaneously or one after the other. Where there is an infringement of the Building Rules, the Corporation may make an application either under Section 363 (or Section 364) or under Section 493, but not under both; in other words, it may ask either for demolition or for a fine, and not for both. This does not and cannot however affect the Magistrate's jurisdiction. Merely because the Corporation, if it proceeds under Section 363, may not make an application under Section 493, it does not follow that if in a proceeding under Section 363 the Magistrate is satisfied on the facts that a case exists for imposing a fine under Section 493, he may not make such a penal order, either in lieu of or in addition to an order for demolition. It is not necessary for me to express a final opinion on this point, seeing that the parties on whom the fine has been imposed do not complain. I may add however that assuming the Magistrate would have jurisdiction to act in this way, he ought not to do so without giving the party affected reasonable opportunity of showing cause against the proposed order. In the present case, it does not appear if such an opportunity had been given to the accused, but, as I have said, they do not complain and it is not necessary therefore to consider that question.
5. The point that arises in this Rule is whether, in view of the order actually passed by the Magistrate in the case, the Corporation can complain and ask that the Magistrate should cancel the fine and make an order for demolition instead. I should not like to express any opinion in the abstract without reference to the facts of the case. It appears to me that the order refusing demolition in this case is quite independent of and dissociated from the order of fine. I am unable to accept the view urged by Mr. Basu that the Magistrate refused demolition because he was going to impose a fine. Beading the judgment, it seems to me clear that demolition was refused because on the merits he was satisfied that demolition was not called for. The fine order might as well be struck out, and the rest of the order allowed to stand as it was. Supposing Mr. Basu was right that in a demolition case no order for a fine could be made, it would only mean that this order should be set aside as being without jurisdiction, but it would not necessarily affect the order on the demolition case proper. Mr. Basu asks that the case should be sent back to the Magistrate to be dealt with in accordance with law, but for reasons already explained, a remand would be worse than useless. As I have said, he has expressed a definite opinion on the merits, and I should not be justified in revision in setting it aside. The opposite parties do not object to the fine, and there is no point in setting it aside at the instance of the Corporation. The Corporation do not ask for it either, unless it be to substitute for it an order for demolition or at any rate a remand to the Magistrate for making a demolition order. The result is that this Rule must be discharged, and the order of the Municipal Magistrate will stand.