JUDGMENT The judgment of the Court was as follows :–– Bhattacharya, J.: The petitioner Dulal Chandra Dalui has come up with this revisional application against the order of the learned Magistrate directing the demolition of an unauthorized construction made by the petitioner within Bally Municipality in respect of premises no. 27, J.N. Ray Bahadur Street. It is being opposed by the Bally Municipality. The State has also entered appearance although we find no scope for such appearance either under the law or in the facts and circumstances of this case. 2. Before we deal with the points raised by Mr. Roy Chowdhury let us state the relevant facts. The petitioner was convicted under section 333/500 of the Bengal Municipal Act for some unauthorized construction in his premises no. 27 J.N. Roy Bahadur Street. He pleaded guilty and he was sentence to pay a fine of Rs. 50/- and the said fine was paid. Subsequently an application was filed by the Municipality for necessary orders for demolition of the unauthorized structure and the order was passed. 3. It appears from the judgment that it was contended before the learned Magistrate that the accused took up the plea of guilt in the previous case on misconception of law. But the learned Magistrate rejected that plea. Subsequently it was contended before the learned Magistrate that the learned Magistrate had discretion in the matter of passing orders for demolition due to the word 'may' appearing in the relevant provision of law. That contention was not accepted in view of the fact that the learned Magistrate was convinced that it was his duty to pass order for demolition in view of the spirit of the Bengal Municipal Act for the safety of the civic life. 4. Before us Mr. Roy Chowdhury has contended first that in the facts and circumstances of the case, the learned Magistrate ought to have held that the previous order of conviction was bad and that even if that conviction is taken into consideration, the absence of any intimation about the sanction or refusal of the plan submitted by the petitioner from the side of the Municipality has given right to the petitioner to make construction. For this purpose Mr. Roy Chowdhury has relied upon sections 317 to 319 of the Bengal Municipal Act. For this purpose Mr. Roy Chowdhury has relied upon sections 317 to 319 of the Bengal Municipal Act. Section 318 particularly says that within 30 days from the submission of the plan, the Commissioners shall by written order either grant permission conditionally or unconditionally to execute the work or refuse to grant permission. Section 319 says that if within the period prescribed in section 318 the Commissioner have neither granted nor refused to grant permission to execute the work, such permission shall be deemed to have been granted and the applicant may proceed to execute the work, but not so as to contravene any provision of the Act or Schedule VI or Rule or bye law thereto. Mr. Roy Chowdhury has argued that in the present case although after the purchase of the property the petitioner submitted plan for reconstruction or remodeling of the house on 12.7.67, no intimation was given to the applicant regarding that plan, and as such, the petitioner was entitled to start construction. The evidence shows, and there is no dispute that on 12.7.67 the petitioner filed a plan particularly showing that a pantiled roof was to be convened to R. C roof. The witness of the Municipality was cross-examined by the accused in the present proceeding. During cross-examination he said that the plan submitted was not sanctioned by the Municipality. He was not cross-examined as to whether any intimation was sent to the accused or not. Neither did the petitioner adduce any evidence as to whether or not any such intimation was received by him, we cannot presume or surmise on the evidence on record that no intimation was sent to the petitioner. The accused has every right to cross-examine any witness of the Municipality. But he refrained from doing so on the question of intimation or when the plan had been refused Moreover, this point was not taken up in the show cause petition before the learned Magistrate. Therefore, the Municipal authority had no opportunity or occasion to adduce evidence regarding this intimation. Moreover, the petitioner himself admitted his guilt in the previous prosecution started for the construction without sanction of the plan. In this view of the matter, we cannot say that the petitioner did make any construction legally. On the other hand, it appears that there was the illegal construction made by him. 5. Secondly, it has been argued by Mr. Moreover, the petitioner himself admitted his guilt in the previous prosecution started for the construction without sanction of the plan. In this view of the matter, we cannot say that the petitioner did make any construction legally. On the other hand, it appears that there was the illegal construction made by him. 5. Secondly, it has been argued by Mr. Roy Chowdhury that in view of section 330 of the Bengal Municipal Act, at best the Municipality along with the petition for prosecution in the previous case could have prayed for demolition of the unlawful construction by a separate application to be filed along with the complaint. We have gone through the section. We cannot say from the simple language used in that section that the Municipality must, according to law, apply for demolition of any unauthorized construction simultaneously and with the same application for prosecution for unlawful construction. The section says that the Commissioners may start prosecution according to the Act and in addition to that prosecution they may apply to a Magistrate for demolition of unauthorized construction and such Magistrate may make an order directing that such illegal construction may be demolished. From the reading of the provision we are of the view that after the finding of the learned Magistrate that there has been illegal construction and that the accused is guilty in that respect, he may further order for demolition of that unlawful construction on a separate application which may be filed subsequently. There is no bar to the filing of a separate application for such demolition after the conclusion of the prosecution and after the finding that there has been already any unlawful construction. 6. In this connection Mr. There is no bar to the filing of a separate application for such demolition after the conclusion of the prosecution and after the finding that there has been already any unlawful construction. 6. In this connection Mr. Roy Chowdhury contended that when there was a prayer for demolition, as in the present case, it ought to have been filed within six months from the date of knowledge of the illegal construction and for that purpose he has referred us to section 533 of the Bengal Municipal Act which says that no prosecution for an offence under the Bengal Municipal Act shall be instituted without the order or consent of the Commissioners, and no such prosecution shall be instituted except within six months next after the commission of such offence, unless the offence is continuous in nature, in which case the prosecution may be instituted within six months from the date of which the commission or existence of the offence was first brought to the notice of the Chairman. There is also a proviso, but we are not concerned with that. Mr. Roy Chowdhury has submitted before us that when this application was filed beyond six months from the time when the unauthorized construction came to the notice of the Commissioners of the Municipality, it was barred by limitation. Mr. Banerjee appearing for the Municipality has contended that the present proceeding for demolition of the unauthorized construction is not a prosecution and therefore section 533 of the Bengal Municipal Act does not appear to be relevant for our consideration. The section says that no prosecution for an offence under his Act lies as stated in the section. Therefore, the word 'prosecution' refers to a proceeding in respect of an offence committed under the Act. In the present proceeding for demolition we are not concerned with any offence. The offence has been decided in the previous prosecution case where the petitioner was convicted and fined to the extent of Rs. 50/-. The present proceeding is the result of the conviction of the petitioner and the prayer is for demolition of the illegal construction made by the petitioner. We have no doubt to hold that the present proceeding is not a prosecution for any offence under the Act, and therefore, the question of limitation does not arise. 50/-. The present proceeding is the result of the conviction of the petitioner and the prayer is for demolition of the illegal construction made by the petitioner. We have no doubt to hold that the present proceeding is not a prosecution for any offence under the Act, and therefore, the question of limitation does not arise. We may note that the order of conviction was passed on 28.10.68 and the present proceeding for demolition was started on 6.3.69, within a reasonable period after the conviction and finding of the learned Magistrate. The third point raised by Mr. Roy Chowdhury is, therefore, overruled. 7. In the result, the application fails and the Rule stands discharged. The interim order passed is vacated. 8. On the prayer of Mr. Roy Chowdhury, we however allow time for demolition by the petitioner till the end of October, 1977. If it is not removed, it would be done by the municipal authorities, as directed by the learned Magistrate below, at the cost of the petitioner. Mukherjee, J.: I agree.