The remedies provided by s. 330 for prosecuting the culprit and for demolition or alteration of the building are distinct, and the provisions of s. 332 do not apply when the alternative remedy of demolition provided by s. 330 is pursued.

This is an application under Article 227 of the Constitution of India for setting aside the order dated 9th August, 1990 passed by the learned Magistrate in Rd. C-2C9/86 under s. 330 of the Bengal Municipal Act, 1973.

2. Opposite party No, 1 Commissioner of Ranaghat Municipality represented by Chairman, Ranaghat Municipality filed a petition under s. 330 of the Bengal Municipal Act for demolition of the authorised stair-case raised by the present petitioner and another who are owners of premises no.28, G. N. P. C, Road encroaching the land of adjoining owner Adhir kumar Acharjee who is the opposite party No.2. It was alleged in the petition that the opposite parties, owner of premises No, 28, G. N P. C. Road raised the disputed staircase without sanctioned plan and without obtaining any permission from the Municipality under s. 317/318 of the Bengal Municipal Act. The application was filed for the alternative remedy of demolition of the unauthorised structure encroaching the adjoining premises No. 27, belonging to the present opposite party No.2.

3. In their show cause petition, the opposite parties contended that they had already dismantled this staircase within the knowledge of municipality.

4. The learned Magistrate has found that the disputed stair case was not demolished as contended by the opposite parties. He has allowed the application under s. 330 of the Bengal Municipal Act passing an order for demolition of the disputed stair-case by the petitioners at the expenses of the opposite parties. The said order is under challenge in this revision.

5. The only point that has been urged on behalf of the petitioner is that no notice under s. 332 of the Bengal Municipal Act bas been served on the petitioner and in the absence of such notice the prosecution under s. 330 is bad in law and consequently the impugned order must be set aside.

6. As held in the case of Ram Kumar v. Bhatpara Municipality AIR 1951 Cal. 311. the order of removal of unauthorised structure provided in s. 330 of the Municipality Act is quire a distinct order from a prosecution contemplated by SS. 330, 500 and 501 Section 330 makes a clear distinction between an application made to the Magistrate for an order of removal and a prosecution which may take place respecting the same matter. Following the said decision it bas been held by Tripura J C.s Court in Nagendra Nath v. Smt. Ratna Prova Das. 1971 Cri. L. J. 201 that the two remedies provided by s. 330 one of prosecuting the culprit and the other of demolition or alteration of the building, are quite distinct, there being nothing common between them except the fact that the building had been raised in violation of the law or sanction given. Consequently. if the Commissioners want to pursue the alternative remedy of the demolition of building raised without taking sanction or getting it altered to correspond with the sanctioned plan they are not bound to follow the procedure prescribed by s. 332. Section 332 which requires an opportunity being furnished to the owner or occupier of the offending building before his prosecution for an offence is launched has no applicability when the alternative remedy provided by s. 330 is availed of by the Commissioners. The provision of s. 332 comes into play only when the Commissioners contemplate prosecuting that in a Court of law for the offences described in s. 330. An application made to a Magistrate under s. 330 for demolition or alternation of the offending building does not amount to prosecution of the person concerned for the offences defined in that section. I am in respectful agreement with this view. That apart, in view of the peculiar facts of this case it must be held in this case that there was substantial compliance with the provisions of s.332 and the petitioner got sufficient opportunity to demolish the unauthroised structure. It is admitted that the disputed stair-case was constructed without sanctioned plan or permission of the Municipality. One of the