The Commissioner and the Building Tribunal have discretion to order demolition or not to order demolition of unauthorized construction under section 414 of the Calcutta Municipal Act, but the discretion must be exercised bona fide and on proper materials.

The judgment of the Court was as follows :––

Banerjee, J. : This application is at the instance of the Commissioner, Corporation of Calcutta challenging the order passed by the Building Tribunal. The facts leading to the case is that the opposite parties nos. 1 and 2 are the owners of the premises in question. The previous owner of the premises No. 58/1A, Ganesh Chandra Avenue, Calcutta filed a plan for sanction and by B.S. Sanction No. 101 of District-II issued on 20th February, 1968 the Corporation permitted her to construct a two storeyed structure with a staircase room at the 3rd storey at the premises No. 58/1A, Ganesh Chandra Avenue, Calcutta, subject to demolition of the existing structures to provide open spaces as per plan before starting of the constructions. The Corporation recalled a complaint about the unauthorized and illegal construction at the said premises No. 58/1A, Ganesh Chandra Avenue from the respondent No.3 and the City Architect, Corporation of Calcutta, directed the Building Inspector to inspect the site and submit a report. The Building Inspector inspected the premises on 29th March, 1972 and submitted a report with a sketch plan about the unauthorized construction. It is stated in the said report that he found a 6 storeyed building with 5" masonary walls and R.C. columns have been constructed without sanction and in deviation of the B.S. No. 101 (II) dated 20th February, 1968 as per sketch. In the said report he further pointed out that the number of mandatory requirements of Rule 19 of Schedule 16 of the Calcutta Municipal Act was violated. In view of the said report a proceeding under section 414 of the Calcutta Municipal Act was drawn up and notices were delivered on the occupier and the owners of the premises. Inspite of the notices, neither the owners nor the occupiers appeared. No cause was shown. The demolition case was fixed for hearing before the Commissioner on 7th July, 1972. The notice of the said date of hearing was served on the complainant-respondent No.3 and the owners and occupiers. The respondent No. 1 Sailendra Nath Banerjee received the notice addressed to Sm. Nirmala Bala Banerjee, the recorded owner, on 5th July, 1972. It was brought to the notice of the Commissioner that Sm. Nirmala Banerjee had died long ago. On 7th July, 1972 the case was heard by the Commissioner, Corporation of Calcutta. After hearing of the matter the Commissioner passed an order of demolition of the "offending" building. In the meantime Sailendra Nath and Gopinath Banerjee appeared as owners and submitted through their lawyer that they are ready to pay the penalty for the unauthorized portion, and they are also ready to demolish the 5" walls and replace these with walls of adequate thickness as required under the rule and there was no infringement of rule 25. The Commissioner however ordered that the certain portion of the unauthorized construction will have to be demolished. It was held, inter alia, that rule 25 has been violated and the unauthorized construction cannot be allowed to continue and should be demolished except that construction upto a height of 26' ft. can be permitted subject to modification of the plan after permitting proper set back in order to comply fully with all the road angles and of course by paying necessary charges. Thickness of external walls below 10" should also be replaced by walls of adequate thickness as prescribed in the rules. Being aggrieved by the said order of the Commissioner, the owners preferred an appeal under section 414A(3) of the Calcutta Municipal Act before the Building Tribunal. The Building Tribunal in course of disposing of the appeal affirmed the findings of the Commissioner regarding the unauthorized construction. The Building Tribunal also held that the unauthorized construction of 3 to 6 storeyed building win stand in exercise of its discretion under section 414(3) of the Act on payment of penalty and completing within the time specified. Being