The Commissioner under Section 414 of the Calcutta Municipal Act, 1951 has the discretion to order demolition or not to order demolition of unauthorized constructions, even in cases where the construction is in violation of unrelaxable rules or rules that have not been relaxed, if sufficient cause is shown.

( 1 ) RATAN Lal Agarwalla and Lakshmi Chand Agarwalla. are the owners of three-fourth share and trustees for remaining one-fourth share in premises No. 21. Hanspu-kur First Lane, Calcutta. The adjoining premises No. 20-A. Hanspukur First Lane is a trust property of which the trustees are mentioned in paragraph 3 of the petition under Article 226 of the Constitution to this Court. It was alleged in the petition that at the back of premises No. 20-A, Hanspukur First Lane, there was a space in which there existed a structure with Raniganj tiled sloped roof. It has been further alleged that the owners of the premises raised the height of the walls and constructed a roof thereon without any sanction by the Corporation of Calcutta. On a complaint by the petitioners action was taken by the Corporation of Calcutta. A notice was issued under Section 416 of the Calcutta Municipal Act, 1951, and thereafter the matter came up before the Commissioner under Section 414 of the said Act. Upon this the Commissioner having considered the matter passed the following order on 16th May, 1962--"heard representatives of both the owners and the complainants. There is a roof, but the R. T. roof has been admittedly converted to flat terrace roof. The character of the roof has been changed without sanction. If the party pays all charges as per Corporation Resolutions within one month from the date of communication of this order, the case may be dropped failing which the roof will be demolished. "the petitioners thereafter made an application under Article 226 of the Constitution and a rule nisi was issued. The matter came up for hearing before Baner. iee, J. According to the learned Judge there was infringement of Rule 30 of Schedule XVI of the Calcutta Municipal Act, 1951 which could be relaxed under Rule 31. The learned Judge was of the view that it did not appear from the order of the Commissioner whether the unauthorised construction deserved relaxation under Rule 31 nor did the Commissioner take the approval of the Standing Building Committee when making the order of relaxation. In the aforesaid view of the matter the learned Judge was of the view that the order of the Commissioner could not be sustained and he accordingly quashed the order. The learned Judge however observed that the said order would not prevent the Commissioner from exercising the power under Rule 31 of Schedule XVI of the Calcutta Municipal Act in accordance with the law. An appeal was preferred from the said order and judgment of Banerjee. J. The appeal came up for hearing before the Division Bendh of this Court consisting of Sinha. J. (as his Lordship then was) and Sen, J. It was argued before the learned Judges of the appellate court that under Section 414 the Commissioner had a discretion in the matter and if the Commissioner had exercised the discretion such exercise of the discretion could not be and should not be interfered by this court The learned Judges were of the opinion that though this point was not taken before Banerjee, J. the appellants were entitled to urge this point as being a question of law. Their Lordships however were of the view that under Section 414 there was undoubtedly a discretion, but in respect of matters which involved violation of unrelaxable rules the Commissioner had no discretion and should always pass an order for demolition. The learned Judges referred to the decision of this court in the case of Pramila Sundari v. Corporation of Calcutta and to a bench decision in the case of Subhasini Nandi v. Corporation of Calcutta, (1955) 59 Cal WN 776. Their Lordships however felt that the view that their Lordships were inclined to take was in conflict with the division bench decision of this Court in the case of Yudhisthir Kumar Dutt v. Commr. of Corpn. of Calcutta, (1965) 69 Cal WN 249. In the aforesaid view of the matter their Lordships felt that two questions of importance arose, namely :--"1. Under Section 414 of the Calc