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-and he continued there till 10-11-1950, on which date the respondent wrote to the Corporation that he would not proceed further with the construction. The police watch was thereupon withdrawn on the respondent paying Rs. 40 being the charges payable therefor. On 7-12-1950 the Inspector again inspected the premises, and found that the construc- tion was being proceeded with, and had a constable posted again for watch. On 13-12-1950 the appellant lodged a complaint before the Magistrate under section 488 read with Rule 62 of Schedule XVII charging the respondent with constructing two rooms in the fifth storey without obtaining permission. Section 488(1)(a) enacts that whoever commits any offence by contravening any provisions of any of the sections or rules of the Act mentioned in the first column of the table annexed thereto, shall be punished with fine as specified in the said table. Rule 62 provides that the erection of a new building shall not be commenced unless and until the Corporation have granted written permission for the execution of the same. The complaint was heard on 11-4- 1951. The respondent pleaded guilty, and was fined Rs. 200. While the proceedings under section 488 were pending before the Magistrate, the Corporation would appear to have examined the nature of the constructions put up by the respondent, and found that they contravened Rules 3, 14, 25 and 32 of Schedule XVII, and decided to take action under section 363. They accordingly issued a notice to the respondent to show cause why action should not be taken under that section. The respondent appeared by counsel on 13-2-1951, and after hearing him, the appellant decided on 6-3-1951 to move the court for an order under section 363, and the petition out of which the present appeal arises, was actually filed on 4- 4-1951. There was delay in serving the respondent, and after he was actually served which was on 17-9-1951, the case underwent several adjournments, and finally on 29-4- 1953 the Magistrate passed an order dismissing the petition. There was no dispute that the building rules had been contravened. The Magistrate, however, held that he had a discretion under section 363 whether he should direct demolition, and that this was not a fit case in which an order should be made for demolition, because the constructions being on the fifth storey could not obstruct light and air and thereby inconvenience the neighbours, and there was no complaint from the residents of the locality, and that as the respondent had already been fined in pro- ceedings under section 488, an order for demolition would be to penalise him twice over for the same offence. Against this order, the appellant preferred a revision to the High Court of Calcutta. That was heard by K. C. Chunder, J. He agreed with the Magistrate that under section 363 the court had a discretion whether it should order demolition or not, and that as the Corporation had taken proceedings under section 488 and was content to have a fine imposed on the respondent for breach of Rule 62, it would be unjust to permit it thereafter to start proceedings under section 363 for the further relief of demolition of the building. He also commented on the undue ,delay on the part of the Corporation in taking out the application, and took into account the fact that no complaint had been received from the locality. In the result, he dismissed the- revision.

In this view, the point for decision is whether the order passed by the Municipal Magistrate and affirmed by the learned Judge in revision is open to attack on the merits. The respondent contends that the Magistrate has under

section 363 a discretion whether he should pass an order for demolition or not, and that this Court should not in appeal interfere with the exercise of that discretion especially when it has been concurred in by the High Court. Now, the language of section 363 is that the Magistrate may pass an order for demolition of the building, and though the word 'may' might in some contexts be construed as meaning 'shall', that is not the sense in which it is used in section 363. We agree with the respondent that section 363 does not require that when a building is shown to have been erected without permission or completed otherwise than in accordance with the terms of the permission or in breach of the building rules, an order for its demolition should be made as a matter of course. In our opinion, it does give the Magistrate a discretion whether he should or should not pass such an order. That was the construction put in Abdul Samad v. Corporation of Calcutta(') on section 449 of the Calcutta Municipal Act, (Bengal Act III of 1899) which corresponds to section 363 of the present Act on language which is, so far as the present matter is concerned, the same. in re-enacting the present section in the same terms as section 449 of Bengal Act III of 1899, it must be taken that the legislature has accepted the interpretation put on them in Abdul Samad v. Corporation of Calcutta(1) as correctly representing its intention. It should accordingly be held that the word 'may' in section 363 does not mean "shall', and that the Magistrate has under that section a discretion whether be should pass an order for demolition or not.

that there has been any great delay on the part of the appellant, The learned Judge has stated that the present proceedings for demolition were taken subsequent to the imposition of fine on 11-4-1951 in the proceedings under section 488. This is a mistake. The proceedings under section 363 bad been commenced as early as February 1951 when notice was issued to the respondent under the provisions of that section, and the petition was actually filed in court on 4-4-1951. It is true that the proceedings were pending for nearly two years before the Magistrate, but as observed by the learned Chief Justice, far from the Corporation being responsible for it, it appears to have been the victim of delay on the part of the respondent. Both the courts below have mainly based their order on the fact that the, Corporation having taken proceedings under section 488 and a fine having been imposed on the respondent, it would be unjust to impose a further penalty for the same offence by way of demolition. The assumption on which this reasoning rests is that the charge on which the present proceedings have been taken is the same as that on which the petition under section 488 was laid. But, as already pointed out, that is not correct. The proceedings under section 488 were taken for erecting a building without permission whereas the present proceedings are taken substantially for breaches of the building rules, which are quite independent of the charge under Rule 62, and the respondent is therefore not punished twice over for the same default. The learned Judge observes that this was not a fit case for exercising the discretion in favour of the appellant, because in the prior proceedings under section 488, it did not ask for an order for demolition, nor was such an order made by the Magistrate. That is obviously with reference to section 536 which we have held to be inapplicable to the present case. Moreover , when that section enacts that the Magistrate could both impose a fine and order demolition of the building, that clearly indicates that the fact that a fine has been imposed should not by itself and with-

The position, therefore, is that the orders of the courts below are based on mistakes and misdirections, and cannot be supported. The conduct of the respondent in adopting a hide-and-seek attitude in completing the constructions in deliberate defiance of the law calls for severe action. It would be most unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break the building rules and put up a construction and get away with it on payment of fine. All this would be good justification for making an order for demolition. But then, it is now nearly five years since the building was completed, and though section 363(2) which directs that no application for demolition shall be instituted after a lapse of five years from the date of the work does not, in terms, apply as the proceedings have been started in time, we do not feel that after the lapse of all this time, an order for demolition is called for in the interests of the public. We also take into account the fact that the orders in question would not have come before Us in the normal course by way of appeal, were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and that purpose has been achieved. On a consideration of all the circumstances, we do not think that this is a fit case in which we should pass an order for demolition. We should, however, add that we find no justification for the strictures passed on the appellant by the court below.