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4. On the 17th of September, 1951, two officers of the Corporation again inspected the premises and thought that there were certain unauthorised encroachments built without sanction. The encroachments concerned were, (1) projecting verandas at first, second, third and fourth floor levels over Phears Lane; (2) a cornice at roof level; (3) projecting verandas at the first, second and third flood levels; and (4) a sloping roof at roof level over, the Corporation Road on the north.

5. As, according to the Corporation, those encroachments had been made without obtaining any sanction, a notice under Section 299 (1) of the Calcutta Municipal Corporation Act, 1923, was served, on the owner on the 22nd of September, 1951, requiring him to remove the encroachments within certain period. As opposite party No. 1 did not comply with the notice, the matter came up to be considered by the Administrative Officer of the Corporation of Calcutta, on the 4th of March, 1952, when an order was made to the effect that if opposite party No. 1 paid encroachment fees and wet-work charges at double the usual rate within a month, the case would be dropped, but if he did not pay, proceedings before a Magistrate would be instituted. No payment was made by opposite party No. 1. Thereafter, on the 2nd of September, 1953, the Corporation instituted the proceedings out of which the present Reference has arisen by an application made before one of the Municipal Magistrates of Calcutta under Section 364 (1) of the Calcutta Municipal Act,

15. For the reasons given above, I agree that the answers to the question referred to the Full Bench, as re-framed, should be as proposed by my learned brothers, Das Gupta and Guha Ray, the terms of which I have already set out.

16. As regards the whole case, for the reasons I have also given, the Rule must be discharged.

K.C. Das Gupta, J.

17. On the 2nd September, 1953, the Corporation of Calcutta made an application before, the Municipal Magistrate, Calcutta, under Section 364 (1) of the Calcutta Municipal Act, 1923, in respect of (1) projecting verandas at 1st, 2nd, 3rd and 4th floor levels over Phears Lane; (2) projecting Verandas at 1st, 2nd and 3rd floor level over the Corporation Road; (3) cornice at roof level over the Corporation Road; and (4) a sloped roof at roof level projecting over the Corporation Road. It was alleged that a notice had been served on the owner of the building to which these projections were attached -- viz., Premises Nos. 70 and 71, Phears Lane, under Section 299 (1) of the Calcutta Municipal Act, 1923, requiring him to remove the same, but had not been complied with. The Corporation prayed for orders on the owner to remove these projections.

19. At the hearing before the Magistrate, only the first two points appear to have been pressed. The Magistrate held that the projecting verandas over the Phears Lane, were constructed more than five years before the initiation of the proceedings, and so the present proceeding was barred in respect of them. He also held that the proceeding was not maintainable in respect of the projecting verandas over the Corporation Road, as in the earlier proceeding in respect of the same under Section 363 (1), the application of the Corporation had been rejected. As regards the projecting cornice, and the projecting sloped roof, the Magistrate passed the following order: ''The cornice at roof level and the sloped roof over the projecting veranda on the 3rd storey on the Corporation Road to the north which are proved to have been constructed without sanction are allowed to stand on payment of encroachment fees and wet-work charges by the opposite party to be assessed by the Corporation within 31st May 1954, failing which Corporation will demolish the said two encroachments by 31st July, 1954, at the cost of the opposite party." We understand that the Corporation did not assess encroachment fee and wet-work charges in accordance with the Magistrate's order, and so the owner also could not make any payment in accordance therewith.

95. In respect of the projecting cornice and the projecting sloping roof, the proceeding is not on the finding of fact by the learned Magistrate barred by limitation. I am clearly of opinion however that in refusing to make an unconditional order of demolition of these, but in ordering that these will be demolished by the Corporation, if the owner did not pay the charges and encroachment fees assessed by the Corporation, the Magistrate exercised a sound discretion.

96. I would therefore discharge the rule.