JUDGMENT 1. This is an appeal by Sew Prosad Poddar (1) against an order of the Municipal Magistrate of Calcutta, dated the 10th March last, under sec. 449 of the Calcutta Municipal Act III of 1899 B.C., directing the demolition within two months of the greater portion of a four-storeyed building in 5, Sobha Ram Bysack's Street, so as to bring the structure into conformity with the building regulations of the Corporation; (2) against a fine of Rs. 500 imposed under sec. 579 read with sec. 452 of the same Act. The first plea of the accused was that the building was erected by him under sanction of the Corporation, dated the 9th November 1892, granted to his late elder brother Rameshwar and himself. 2. It will therefore be necessary at the outset to determine what the Corporation did actually sanction. The premises which now consist of Nos. 5, 5/1 and 5/2, Sobha Ram Bysack's Street, were originally single holding known as No. 5. The northern portion, measuring nearly 31/2 cottahs, was bustee land belonging to the estate of Pora Sundari Dasi administered by the Administrator-General, and is the present No. 5 on which the building stands which the Magistrate has ordered to be demolished in this case. The southern portion of the original No. 5 consists of about 2 cottahs to the West and forming No. 5/2 and of 31/2 cottahs to the East and forming No. 5/1. In the year 1892 the former of these two plots was purchased by Sew Prosad and his brother Rameshwar while the eastern plot was acquired by one Johar Mul. On the 1st April 1892 the two brothers, under the joint designation of Sew Prasad Rameshwar presented au application (Ex. 31) in a printed form for permission to erect a three-storeyed dwelling-house at 5, Sabha Ram Bysak's Lane (sic). On that is an endorsement of objection under 5 heads, the first being "3rd storey objectionable." The objections were given in detail together with instructions in a letter to the Appellants of which the office copy has been produced (Ex. 34) as the accused did not comply with a requisition to produce the original and the same remark applies to many other office copies which have been made exhibits in the case. 34) as the accused did not comply with a requisition to produce the original and the same remark applies to many other office copies which have been made exhibits in the case. One of the instructions was to leave a 4 feet space on the East open to the sky, and 2 feet on the West. Another instruction was to enter the correct name of the street in the application and plans. On the 25th June 1892 Sew Prasad Rameshwar by their letter Ex. 32, on the prescribed form applied for sanction to construct a dwelling-house "two-storeyed on the road side, three-storeyed on the back" at 5, Bysack's Lane (sic). That application was supported by two of the Municipal Commissioners by letters Exs. 35 and 38. Ex. 36 shows that sanction was refused pending the decision of the building committee, and this was communicated to the applicants by a memo., dated the 26th July (Ex. 37). The documents show that the site in question was the West plot now known as No. 5/2, Sobha Ram Bysack's Street. On the 10th August the building' committee rejected the application on the ground that a 3rd storey cannot be allowed (Ex. 42). That decision was communicated to the applicants by a letter, dated the 23rd August (Ex. 41). 3. On the 5th September Sew Prasad Rameshwar made a 3rd application in which they refer to that letter of refusal and submit plans for a two-storeyed building. Ex. 43, dated the 5th September, is the office docket. That application was sent to the Health Department (Mr. Vincent) for report (Ex. 44). On the 10th September came the report that the privy on upper storey was objectionable as being within 3 feet of the windows of a neighbor's tiled hut situated to the North. 4. On the 23rd September the refusal of the Corporation's sanction was communicated to the Appellants by letter (Ex. 45) giving the reasons. 5. The Building Register Ex. 52 sets out all the above references and clearly indicates that the requisition related to a two-storeyed building. 6. Exhibit 14/7 is the Peon Book showing dispatch of letters and the recipient's signature. 7. Exhibit 30, dated the 15th October 1892, is a fourth application from Sew Prasad Rameshwar, and is in these terms: "Herewith I am submitting the plans of No. 5, Bysack's Lane, for your early sanction. 6. Exhibit 14/7 is the Peon Book showing dispatch of letters and the recipient's signature. 7. Exhibit 30, dated the 15th October 1892, is a fourth application from Sew Prasad Rameshwar, and is in these terms: "Herewith I am submitting the plans of No. 5, Bysack's Lane, for your early sanction. I have endeavored to meet all your objections. Hoping an early sanction will be granted." To this a reply was given on the 22nd October (Ex. 47), that the name of the street should be corrected to 5, Sobha Ram Bysack's Street, and that the application should be made on a printed form. 8. A fifth application (Ex. 29) was presented by Sew Prasad Rameshwar. On the 24th October 1892, giving the correct name of the street, and stating that it was for a two-storeyed dwelling-house. The docket (Ex. 48) states "subject of letter new two-storeyed building one plan. Please get the number and name of the street corrected in the other plan and initialed." 9. Ex. 49, dated the 9th November 1892, is the sanction No. 689 approving of the site and Ex. 50 of the same date, conveys sanction to the plan submitted with applicant's letter, dated the 24th October of the two-storeyed building to be erected at No. 5, Sobha Ram Bysack's Street. The sanction Register Ex. 53 also shows that it was for a two-storeyed building and that the site was the present No. 5/2 purchased by Sew Prasad Rameshwar, and not the present No. 5, admits of no doubt. This question has been very fully dealt with in the judgment of the Magistrate. We need only refer to the more important items of evidence. There are first the documents relating to the application of the 25th June. "Then the direction on the first application to leave 4 feet space on the East up to the sky between the building and the neighbor's house would be quite inapplicable to a structure like the one under objection to the North, as it abuts on the street and has not a neighbor's house on the East whereas it applies to the building on No. 5/2, East of which are Johar Mul's premises. The objection to the privy as being within 3 feet of the window of a tiled hut on the North has been shown to relate to a hut on Pora Sundari's bustee land (now No. 5). These latter premises were not purchased by the Appellant till the year 1903, so that he would have no occasion to apply to build thereon in 1892. No doubt the accused did allege that he had in 1892 come to an agreement with Pora Sundari's heirs to purchase the land, but in the absence of any evidence to this effect we consider the allegation unworthy of credit. There is the fact also that the Appellant and his brother proceeded to erect a two-storeyed house on the present premises No. 5/2 so soon as they obtained the sanction. And Johar Mul did the same on his land to the East under a similar sanction. Subsequently in 1893 they both added a third storey Johar Mul was prosecuted and fined Rs. 20 but there is nothing to show that any proceedings were taken against Sew Prasad Rameshwar. In fact they were emboldened each to add a fourth storey in the year 1894 after Mon Mohan Ghose, the Assistant Superintendent of Roads and Buildings, had been transferred. The supervision of some of the Municipal authorities seems to have been very lax, not to put a worse construction upon it. But the fact that a third and fourth storey were built on No. 5/2 without notice or objection cannot be construed as evidence that the sanction was for four stories contrary to the overwhelming evidence which has been adduced that it was for a two-storeyed building. The identity of the site has been proved also by oral evidence, particularly that of Mon Mohan Ghose. It is placed beyond all dispute by Ex. 51 which we are satisfied was the sanctioned plan belonging to Sew Prasad Rameshwar and which was given to their building contractor (now deceased) from the custody of whose brother it has been obtained. The Magistrate has clearly established the authenticity of this plan and we only desire to add one piece of evidence which he has overlooked, viz., the correction from Bysack's Lane to Sobha Ram Bysack's Street which is in accordance with the instructions to which we have already referred and that correction is initialed S.R. as was required. 10. The Magistrate has clearly established the authenticity of this plan and we only desire to add one piece of evidence which he has overlooked, viz., the correction from Bysack's Lane to Sobha Ram Bysack's Street which is in accordance with the instructions to which we have already referred and that correction is initialed S.R. as was required. 10. And now we must turn to another feature of the case to which the main portion of Mr. Dunne's argument on behalf of the Appellant has been directed. 11. On the 11th June 1903 the Appellant wrote to the Calcutta Corporation in these terms (Ex. 27): "I beg to request that, you will kindly send me a copy of the building plan of premises No. 5, Sobha Ram Bysack's Street vide sanction No. 689, dated the 9th November 1892." In accordance with that requisition a copy was furnished of which the original Ex. A has been produced by the Municipality at the citation of the accused. Now this plan is manifestly a false document. We have seen this for ourselves after placing it upon a pane of ground glass and there is ample expert evidence on both sides to show that the original plan has been altered almost out of recognition, and that it could not have been the plan of a four storeyed building as this one represents. This point cannot be seriously disputed. In short we are satisfied that the original out of which this elaborate forgery has been evolved was the plan of a two-storeyed building confined to Sew Prasad purchased laud No. 5/2 the same as is pourtrayed in Ex. 51. But Mr. Dunne argues that the Appellant is protected by the plan which he obtained last June from the Municipality and which he was therefore justified in treating as genuine and that unless fraud can be brought home to him the Municipality is estopped from questioning his actions. We will just consider how this prosecution originated. 12. Johar Mul though formerly on good terms with the Appellant has become inimical to him. We will just consider how this prosecution originated. 12. Johar Mul though formerly on good terms with the Appellant has become inimical to him. On the 10th August 1903 finding that Sew Prosad has collected materials and was about to build on on 5, Sobha Ram Bysack's Street, Johar Mul instituted a suit in the High Court praying inter alia for a declaration that, the Defendant had no right to interfere with the access of light and air to his premises and he obtained a rule for an injunction. The rule was discharged on the 20th September 1903. Four days afterwards, no doubt at the instigation of Johar Mul, the Corporation took action by serving Sew Prosad with a notice to stop building on 5, Sobha Ram Bysack's Street, pending the decision of the Municipal Magistrate under sec. 449. In spite of this the Appellant proceeded to build. Then on the 11th November he received another notice to the effect that the legality of his action was being enquired into and warning him that any further work he may undertake in the erection of the building would be at his own risk. 13. On the 12th November Messrs. Gregory and Jones on behalf of the Appellant wrote to the Corporation that their client had obtained proper sanction for the building on the 9th November 1892 and that he was not prepared to stop work without an indemnity against loss. 14. On the 2nd December the Corporation served another notice on the Appellant to desist from building. Next day Messrs. Gregory and Jones replied that their client was building in accordance with plans sanctioned in 1892. Thereafter the present prosecution was started. 15. Now as regards the five consecutive applications to the Corporation in 1892 and the many objections and letters connected therewith it is impossible to believe that Sew Prosad remained in ignorance of what was going on. In his affidavit in the recent suit before the High Court he stated that it was he who caused the plan to be prepared for submission to the Corporation. There is also some evidence that he actually appeared on the scenes, and though his elder brother may have boon the Principal Agent it must be remembered that they were living together and therefore such an important topic could not possibly have escaped Sew Prasad's notice. There is also some evidence that he actually appeared on the scenes, and though his elder brother may have boon the Principal Agent it must be remembered that they were living together and therefore such an important topic could not possibly have escaped Sew Prasad's notice. The erection of a new building on the premises which they had just jointly purchased interested one as much as the other and must have been a matter of the very first importance to both. 16. It is inconceivable that Sew Prasad should have been ignorant of what so closely affected his interests and of the progress and ultimate result of the negotiations. Upon Rameshwar's death a few-years ago all the documents relating to the matter would naturally fall into Sew Prasad's hands even if not freely accessible to him before. Then there was the sanctioned plan Ex. 51 which had been made over to the contractor and was no doubt available to Sew Prasad when he wrote to the Municipality for a copy on the 11th June 1903. In that letter he actually refers to No. 689 which is the correct number of the sanction and he also states the date correctly. 17. The plan is not a sanction but an illustration of the written sanction which the law requires. How was it he knew all these particulars and yet was ignorant of the terms of the sanction ? And how was it that be did not refer to his own letters received from the Municipality in order to fully satisfy himself in the matter ? 18. The correspondence between his solicitors and the Municipality to which we have referred must further have put him on enquiry for he was warned of the risk of proceeding with the building. The plan was manifestly of a very suspicious character. The first thing which would have occurred to any ordinary businessman, to say nothing of experienced solicitors, would have been to enquire for the written sanction and to insist on having it. That would have settled the question at once. 19. We think it is impossible to resist the conclusion that Sew Prasad was fully cognizant that nothing had been sanctioned except a two-storeyed building which was not on the site purchased by him in 1903 but on the land he had acquired 11 years previously. That would have settled the question at once. 19. We think it is impossible to resist the conclusion that Sew Prasad was fully cognizant that nothing had been sanctioned except a two-storeyed building which was not on the site purchased by him in 1903 but on the land he had acquired 11 years previously. The forgery of the office plan A cannot be conclusively brought home to the Appellant but inasmuch as it was done for his own interest alone it is difficult to understand who else would have taken the trouble or incurred the expense of tampering with the document and bringing some Municipal underling. Mr. Dunne has contended that it was not within the province of the Municipal Magistrate to enquire whether the plan A is a forgery and that he should have left the Corporation to its remedy in the Civil Court. We think there is no force in this contention. The accused relied upon the plan as justifying his action and as a good defense to the case brought against him. 20. If the plan were a true exemplification of the sanction the prosecution would necessarily fail and conversely if it were not the true plan the plea of the accused would be unavailing unless it were made to appear that he had been deceived into the belief that it was a genuine document. The Municipal Act provides a means both for punishing the offender and securing the demolition of an unsanctioned building and it would have been ill-advised of the Corporation to abandon their remedy under the Act in favor of a civil suit which would possibly not lie before that remedy has been exhausted. 21. It was further contended that under sec. 628 the Municipal Magistrate is clothed with jurisdiction only for the trial of offences under the Municipal Act and that an order for demolition made under sec. 449 is not an offence. For authority we have been referred to the opinion of Prinsep and Stevens, JJ., given upon a reference from the Municipal Magistrate and reported in In the matter of The Corporation of Calcutta v. Keshub Chunder Sen 8 C.W.N. 142 (1902). In that case it was merely laid down that the limitation for the prosecution of offence prescribed in sec. 631 (1) has no application to proceedings taken under sec. 449. In that case it was merely laid down that the limitation for the prosecution of offence prescribed in sec. 631 (1) has no application to proceedings taken under sec. 449. It was held by us in a recent case that the words "a Magistrate" in sec. 449 mean any Magistrate having jurisdiction in Calcutta and include a Municipal Magistrate. It appears from page 318 of the last Quarterly Civil List that Babu Priya Nath Mukherjee who tried the present case is not only a Municipal Magistrate but also a Presidency Magistrate and that his powers are not limited to these specified in sec. 629 of the Calcutta Municipal Act. There remains the objection to the Magistrate's order requiring the accused to pay Rs. 400 costs for an adjournment. The accused was not entitled to the adjournment asked for and it was only made conditionally on his paying the costs of the other side. We think it was in the discretion of the Magistrate to make the order in question and that his action was justified by the terms of sec. 344, C.P.C., and was under the circumstances not unreasonable. Finally it has been urged that the legislature could not have intended a Magistrate, whose powers of fining are limited, to exercise the power of demolishing a valuable four-storeyed building. The law is clear and it imposes no limitation according to value. A case might conceivably arise where this Court would be inclined to suggest some middle course to the Municipal authorities. But this is not one of such a nature. The Appellant actuated by a bitter feeling of rivalry and determined to gain his own object proceeded to build with all expedition heedless of the repeated warnings of the Municipality which only required him to wait till the rights of the case had been enquired into. We have found that he knew his true position yet he obstinately pursued his course determined to outwit his rival and perhaps encouraged by former immunity or the example of the paltry fine imposed on Johar Mul in 1894, in the hope that he would get off ultimately on easy terms. He has taken the risk with his eyes open and must he prepared to suffer the full penalty of his misdeeds. He has taken the risk with his eyes open and must he prepared to suffer the full penalty of his misdeeds. Such a house as he has erected is a grave impediment to the sanitation of that part of Burra Bazar, and the evidence clearly shows that it contravenes all rules and is such as never could be sanctioned by the authorities. The result is that we find no reason for disturbing the orders of the Municipal Magistrate and we direct that the appeal be dismissed.