The Municipal Magistrate has the discretion to order or not to order demolition under Section 363, Calcutta Municipal Act, but this discretion must be exercised judicially and not on the basis of equitable considerations.

( 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