Sabyasachi Mukharji, J. - (1.) THE petitioner in this application under Article 226 of the Constitution has challenged the order dated 21st March, 1975 passed by the Deputy Commissioner (B & P) Calcutta, The order relates to premises No. 9, Raja Rajballav Street (back portion). It appears that there were certain constructions made on sanction which was obtained on misrepresentation. Therefore, the Deputy Commissioner on 3rd January, 1975, had ordered that the building plan sanctioned in favour of Sudhamoyee Pal being Building Plan No. 22 dated 25th April, 1973, in respect of 9, Raja Rajballav Street be cancelled and the work done pursuant to the sanction be considered to be done without sanction. The City Architect was directed to take steps under Section 414. It appears that pursuant thereto notice to show cause was issued and from the records produced by the Corporation at the hearing of this application before me it further appears that cause was shown personally. After consideration of the matter, the Deputy Commissioner passed the impugned order which is to the following effect: From the departmental reports and on hearing the parties I am satisfied that the constructions under reference have been done in recent times, without sanction and in pursuance of a building sanction plan which has since been revoked. So far as the side spaces are concerned, the width of the side spaces varies from 6' -0" to 5' -10" against the 2 storied house of the adjoining premises. This infringement is minor in nature and as such the open space as has been provided be allowed for the construction which has so far been made against the adjoining premises. The open space of the one storied asbestos shed and the open space of the adjoining premises on south as has since been left varies from 3' -10 1/2" to 3' -ll". This infringement is also very minor in nature and as such the open space as has been provided should be allowed against the constructions already made in this part. So far as the side space on southeast side is concerned the width of the open space against the two storied house of the adjoining premises it varies from 5' -6" to about 7 -0" or in some parts little more instead of 6' -0". Had there been any construction having attachment with this two storied existing building, I would have no other alternative but to allow this construction to stand. Such open space therefore, as has now been provided, definitely improves the open space conditions of the property and should be allowed to stand, provided however any encroachment by any beam or some other structure causing encroachment on such space, if there be any, is removed. So far as the back space is concerned the width of the back space varies from 9' -4" to 9' -8". Since the plot is very small in area and since there is no complainant to complain and since these complainants have nothing to object in the matter, the back space, as has now been provided, be allowed against the one storied construction which has already been made. Subject to the removal of all encroachments by all beams or like causing encroachment on the open spaces at the sides and also on payment of the necessary Corporation charges prescribed in this behalf all within one month from the date of communication of this order the constructions which have so far been made without sanction and in pursuance of the plan which has since been revoked be allowed to stand.
(2.) THE question is whether the Commissioner was in error in passing the aforesaid order. On behalf of the petitioner it was urged that the Commissioner was bound to order demolition in the facts and circumstances of the case. Reliance in this connection was placed on the cases of O. M. Industries Ltd. v. State of West Bengal,, (1970) 74 Cal WN 1002, Yudhisthir Dutt v. Corporation of Calcutta,, (1965) 69 Cal WN 249, Kanai Lal Pal v. Corporation of Calcutta,, (1964) 68 Cal WN 1049. In the case of Purshottam Lalji v. R. N Agarwal, ( : 76 Cal WN 983 = AIR 1972 Cal 459) (FB) the Special Bench of this Court had to consider this question and it was held that Section 414 of the Calcutta Municipal Act vested the Commissioner with a discretion and that discretion was for the purpose of facilitating the scheme and object of the Calcutta Municipal Act, 1951. That discretion should be used bona fide and not on any extraneous ground. The section also enjoins that the Commissioner should exercise discretion quasi -judicially, that is to say, by giving the parties an opportunity to show cause and the parties were given opportunity to show cause why an order for demolition should not be made. Therefore, if in a proper case it was found that there was infraction of the rule which could not be relaxed or which had not been relaxed and the parties showed cause to the Commissioner, for example, the infraction was of a minor nature or in any way not affecting the sanitation or ventilation and amenities of the building in question or other adjoining premises, the Commissioner had discretion not to order demolition. Judged by the aforesaid standard in view of the facts and circumstances of the case, in my opinion, it cannot be said that the discretion exercised by the Deputy Commissioner as delegated from the Commissioner was improperly exercised. Counsel for the petitioner drew my attention to the Calcutta Municipal (Amendment) Act, 1974. Section 2 of the said Act provides as follows: 2. In sub -section (3) of Section 414 of the Calcutta Municipal Act, 1951 (hereinafter referred to as the said Act), - (i) in clause (b), the words "or an officer specially appointed by the Corporation with the approval of the State Government in this behalf, as the case may be, shall be omitted; (ii) after the existing proviso, the following further proviso shall be added, namely: Provided further that where the structure does not contravene any of the provisions of this Act or the rules made there under, the Commissioner may, without prejudice to any other action that may be taken against the person concerned under the provisions of this Act or the rules made there under, allow him to submit proper plan under the rules referred to in Schedule XVI and sanction such plan. It was contended that after the amendment of Section 414 by the said amendment Act, the Commissioner had no discretion but to order demolition when the building was constructed without the sanctioned plan. I am unable to accept this contention. Section 2 of the said amending Act merely added a proviso giving an additional power to the Commissioner. It does not, in my opinion, affect the discretion vested in the Commissioner as indicated in the Special Bench Judgment referred to hereinbefore. In the aforesaid view of the matter, in my opinion, the petitioner cannot make any grievance of the said order by the Deputy Commissioner. It was also contended on behalf of the respondent that in view of Section 414 -A, the petitioner had alternative remedy. In the view I have taken, it is not necessary for me to discuss this aspect any further.
(3.) IN the aforesaid view of the matter, this application fails and is accordingly dismissed. The rule nisi is discharged. Interim order, if any, is vacated.;