RAMESH CHANDRA PATRA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THIS rule was obtained by the petitioner Ramesh Chandra Patra who was prosecuted at the instance of the Corporation of Calcutta in the Court of the Municipal Magistrate. It is alleged that a wall belonging to the petitioner encroached upon a Corporation drain, and that he had been required by the Corporation to demolish it but had not done so, The learned Magistrate has found that there has been an encroachment and he has directed the petitioner to remove the offending portion of the wall within one month from the date of the judgment. In default he has directed that the Corporation of Calcutta would be entitled to remove the wall.

(2.) THE main argument urged against his order was that the learned Magistrate had no jurisdiction to pass an order of demolition. It was contended that Section 488, Calcutta Municipal Act which provided for punishment of certain offences only empowered the .Magistrate to inflict a fine. The learned Advocate for the Corporation points out that it is true that Section 488 .Calcutta Municipal Act only mentions the extent to which a person may be fined for not complying with a direction lawfully given by the Corporation, but he refers me to the provisions of Section 536, Calcutta Municipal Act which is in the following terms:

(3.) NEXT , the learned Advocate for the petitioner pointed out that the Court had ordered a fresh joint survey of the land in the presence of the accused and that no such fresh survey was held. In the circumstances he says that the Magistrate should not have found the accused guilty. This argument also is in my opinion not sound. There had been a survey before and the extent of the encroachment was shown in the map. The accused wanted a fresh survey in his presence and the Magistrate directed that this may be done. The accused, however, failed to avail himself of this indulgence and never attended upon the Surveyor. The result was that there could be no fresh survey in his presence. In the circumstances the learned Magistrate was perfectly justified in relying upon the previous survey and the report of the Surveyor.