SEN, J. - (1.) THIS Rule has been obtained by the petitioners against an order passed by Sri N.K. Ghose, Municipal Magistrate, Calcutta, whereby the petitioners have been directed to pay a fine of Rs. 100 each, the fine purporting to have been inflicted under Section 493, Calcutta Municipal Act.
(2.) THE facts briefly are as follows : On 16th September 1948, the Corporation of Calcutta filed an application before the aforesaid Municipal Magistrate under Section 363, Calcutta Municipal Act. The Corporation prayed for the demolition of certain structures constructed at 43 Netaji Subbas Road on the ground that these constructions were made without the sanction of the Corporation and also on the ground that the constructions infringed certain bye -laws framed for buildings under the Calcutta Municipal Act. It was stated in the petition that the Corporation detected this unauthorised building on 10th January 1948. Before the learned Magistrate the persons complained against, that is to say, the present petitioners adduced evidence, to show that none of the building regulations had been infringed and the Municipal Magistrate has found in favour of the petitioners on this point.
(3.) NEXT , the petitioners took up the position that the constructions had been made more than five years prior to this petition and that therefore no demolition order could be passed. The evidence on this point was not believed by the learned Magistrate and he has held that the building was constructed in 1945, that is to say, within three years of the application and therefore the Corporation was not barred from applying for its demolition. The learned Magistrate also found that the building bad been made without the sanction of the Corporation. All these finding are now not challenged. The learned Magistrate after arriving at these findings has held that the unauthorised construction has not injured or in any way affected the rights of the neighbouring owners I may mention here that these proceedings were initiated pursuant to letters written to the Corporation by one Kashi Nath Mallik, witness No. 4 for the Corporation. He complained that his rights regarding air and light have been affected as a result of this unauthorised construction. The learned Magistrate has dealt with this point and has found that the unauthorised building could not possibly affect the rights of this witness regarding light and air inasmuch as his building is mostly a one -storied one and this unauthorised construction was built on the top of the third floor of the petitioners' building. This finding also is not challenged and indeed it could not be challenged.;