P.C. Borooah, J. - (1.) On June 23, 1979 Smt. Latika Roy and four other residents of premises No. 8/2, Mandeville Gardens, Calcutta filed a petition of complaint in the Court of the Municipal Magistrate, Calcutta against Sm, Rekhi Das Gupta and others of premises No. 8/1, Mandeville Gardens, as well as the Corporation of Calcutta under section 583 of the Calcutta Municipal Act, 1951 (hereinafter the act') alleging inter alia, that Sm. Das Gupta had in the passage of her house between premises No. 8/1 and 8/2, Mandeville Gardens installed in an unauthorised structure a diesel operated generator in order to produce electricity for the running of lights, fans, air conditioners etc, during the periods of load-shedding, and the unbearably loud noise of the generator and the noxious fumes and smoke emitted by it have affected the health and disturbed the sleep and tranquility of the residents of premises No. 8/2, Mandeville Gardens. Prayer was made for necessary directions so that the operation of the generator should be stopped as it's running amounted to a nuisance, and the permanent structure wherein the generator was housed pulled down as it was an unauthorised construction.
(2.) Sri S.K. Das Gupta, Municipal Magistrate, Third Court, Calcutta by an order dated September 12, 1979 held that the running of a generator under an unauthorised construction in a narrow passage between two premises is an act of nuisance as defined in Section 5(50) of the Act because of the sound and smoke it produces affecting the neighbouring inhabitants. The learned Magistrate further held that the power of directing demolition was given to a Magistrate under Section 584 of the Act, which was independent of Section 583, and did not come into force until an order nude under Section 583(2) of the Act was violated.
(3.) The learned Magistrate accordingly allowed the application in part and directed the opposite party Nos. 1 to 6 not to run and to remove the generator from the passage in between the two premises within seven days of the order. The Corporation authorities were also directed to take necessary steps under the Act so that the order is complied with. This order has been challenged by both the parties in two separate Rules, which are disposed of by this judgment.;