The Judgment of the Court was as follows:

B.C Mitra, J.:— This appeal arises out of a judgment and order of Sinha, J., dated February 16, 1959, discharging the rule nisi issued on March 18, 1958.

1. The facts out of which this appeal arises are that premises No. 84A Beniatolla Street previously formed part of No. 84 Beniatolla Street. Prior to 1925 the said premises No. 84 Beniatolla Street belonged to the predecessors in title of the Appellants. A suit was filed in 1939 for partition being Suit No. 30 of 1939. A preliminary decree for partition was passed by, consent of parties on November 24, 1951. By this decree the appellants were allotted the front portion of No. 84 Beniatolla Street which has since been numbered as 84A Beniatolla Street. The co-sharers of the appellants were allotted the back portion which is now numbered as 6A, Barwaritolla Lane. In 1948 the Appellant No. Yudhisthir Kumar Dutta, applied to the Corporation of Calcutta for sanction of a plan for a building at No. 84 Beniatolla Street, though in fact it was intended to be a building at No. 84A Beniatolla Street. This application was rejected. Thereafter on or about May 28, 1948, a fresh application was made for sanction of another building plan also at No. 84 Beniatolla Street. This plan was sanctioned and numbered as 105. It was described as an “Additional Plan”, of premises No. 84 Beniatolla Street. A three storied building was constructed oh the basis of this sanction. But the building as constructed was not in accordance With the plan, from which considerable deviations were made.

2. The plan was sanctioned on or about June 9, 1948, and on October 20, 1948 a letter was sent to the City Architect of the Corporation complaining about unlawful construction. The structure thereafter was inspected on behalf of the Corporation and a police picket was posted. Upon an undertaking given by the owners, the police picket was withdrawn, but this withdrawal was followed by further construction. Thereafter there were other complaints from adjoining owners. The District Building Surveyor inspected the disputed premises sometime on or about October 21, 1948, and this inspection was followed by a notice under S. 363 of the Calcutta Municipal Act. 1923, requiring the owner to stop unauthorised works. On or about October 29, 1948, another plan in respect of the disputed premises was submitted and this plan was sanctioned by the Corporation on or about December 11, 1948, subject to the condition that portions marked ‘A’, ‘B’, ‘C’, ‘D’ on the plan, in the third storey, be cancelled and a free gift of two feet of land on the east of the premises be made to the Corporation and the wet work charges and other charges…be paid. The departmental recommendation for demolition of unauthorised structures was placed before the Special Officer on March 10, 1949. The matter was again placed before the Special Officer on April 15, 1949, along with the sanctioned plan. The proposal for demolition of the unauthorised construction was considered by the Special Officer on April 15, 1949, in the presence of parties and the complainants. The Special Officer passed an order whereby it was provided that if the conditions imposed by the Administrative Officer in sanctioning the plan were complied with and portions marked ‘A’, ‘B’, ‘C’, ‘D’ on the plan were demolished along with the portions not sanctioned, within two months, the case would be withdrawn and in default, a case would be lodged before the Municipal Magistrate. Accordingly, on default being made, a complaint was filed before the Municipal Magistrate who however by his order allowed the structures to remain. Against this order of the Municipal Magistrate an application by way of revison was made in this Court, but Chunder, J., dismissed the same. This was followed by an application under Art. 226 of the Constitution and Sinha, J., by his judgment dated July 21, 1954, made the rule issued in the said application absolute, and directed the issue of a Writ in the nature of Mandamus requiring the Corporation to revoke the sanction granted to plan No. 105 and also the permission to build in accordance therewith and to proceed according to law in dealing with or sanctioning the said plan, if the respondents 2 to 6 in the said application still required it to be sanctioned or asked for permission to build in accordance therewith. An injunction was also issued restraining the respondents Nos. 2 to 6 in that application from making any further construction. There was no appeal from this order of Sinha, J., and the order for revocation of sanction became final.

3. On June 6, 1955, the Commissioner issued a notice to show cause under S. 414 of the Calcutta Municipal Act, 1951, for demolition of the unauthorised structures. On December 30, 1955, the Appellants filed a revised plan. This revised plan, according to the Appellants, is on the same lines as the plan, the sanction of which had been directed to be revoked by the said order of Sinha, J. On January 28, 1958, the Commissioner of the Corporation made an order for demolition of the unauthorised structures and on March 18, 1958, an application was moved and a rule nisi was obtained calling upon the respondents to show cause why the demolition order dated January 28, 1958, and the order revoking the sanction of the plan should not be set aside and why the respondents should not forbear from giving effect to the demolition order. On February 16, 1959, Sinha, J., made an order dismissing this application and discharging the rule issued. This appeal is directed against this order of Sinha, J.

4. Appearing for the Appellants, Mr. R.C Deb argued that the Municipal Magistrate had considered the question of demolition under S. 363 of the Calcutta Municipal Act, 1923, and he had declined to make an order for demolition of the structure and allowed the same to remain. The Corporation had applied to this Court in its Criminal Revisional Jurisdiction, against, the said order of the learned Magistrate and Chunder, J., had rejected the said application. That being so, Mr. Deb argued, that the question of demolition had been finally concluded and it was not open to the Commissioner to issue a notice under S. 414 of the Calcutta Municipal Act, 1951, for demolition of the structure. This notice is dated June 6, 1955. By this notice the owner of premises No. 84A Benia-tolla Street was required to show cause within a week from the date of service of the notice why such erection, alteration or other works should not be demolished and if there was failure to comply with the requisition contained in the notice, the Commissioner proposed to demolish the structure after giving seven days' notice to the owners and occupiers thereof. Mr. Deb further argued that Sinha, J., was not concerned with the question of demolition of the structure and indeed he had made no order directing the Corporation to demolish the same. The question of demolition, Mr. Deb argued, had been finally concluded by the said order of the Municipal Magistrate and also by the order made by this Court in its Criminal Revisional Jurisdiction. That order is binding on all parties including the Corporation, who could not reopen the question of demolition by the said notice of June 6, 1955, nor could the Commissioner pass an order for demolition on January 28, 1958, notice of which was given to the appellants on February 4, 1958. Mr. Deb referred to the terms of the first notice dated February 22, 1949, under S. 363 of the Calcutta Municipal Act, 1923, and compared the terms of this notice with the second notice dated June 6, 1955, and argued that the terms of the two notices were almost identical and the grounds of infringement mentioned in the two notices were also the same. He submitted that the learned Magistrate had considered these very grounds of complaint and the specific alleged infringements of the building rules, and after having considered them the Magistrate had used the discretion, which undoubtedly he had under S. 363 of the 1923 Act, and in exercise of such discretion had thought it fit to allow the building to remain.

5. Mr. Deb next contended that under S. 363 of the 1923 Act, the Magistrate may make an order directing demolition or alteration of the structure. Mr. Deb argued that the word ‘may’ conferred upon the Magistrate a discretion which had been exercised in favour of his clients. The Magistrate was not bound to make an order for demolition. He might, after taking into consideration all the circumstances, permit the structure to remain as it was, without demolition or alteration. In support of this contention he referred to a decision of the Supreme Court in Corporation of Calcutta v. Mulchand Agarwala, (1) (1956) S.C.A 96. In that case the effect of S. 363 of the 1923 Act regarding demolition of structures alleged to have been erected without previous permission was considered and the meaning and effect of the word ‘may’ was held to be as follows: “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.” Relying upon this decision Mr. Deb argued that the Magistrate was not bound to make an order for demolition and that he had a discretion in the matter which he had exercised in favour of the appellants.

6. Mr. Deb next referred to another decision of the Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs, (2) A.I.R 1962 S.C 1893, in support of his contention that the order made by the Magistrate could not be ignored by the Commissioner of Corporation of Calcutta. In that case the Collector of Customs had filed a complaint before a Magistrate for violation of the Imports and Exports (Control) Act, 1947. The learned Presidency Magistrate discharged all the accused under s. 253 of the Code of Criminal Procedure, holding that no prima facie case had been made out against any of them. Two revision applications were filed against the order in the High Court and Chunder, J., set aside the orders of discharge made by the learned Presidency Magistrate and remanded the cases for fresh disposal. After remand, the Presidency Magistrate heard the matter and discharged one of the parties. Against this order of discharge the Collector of Customs filed a revision application to this Court in its Criminal Revisional Jurisdiction. This revision application was dismissed and on a construction of section 5 of the Sea Customs Act it was held that the said section penalised only contravention of an order made under the Act, but did not penalise the contravention of the conditions of licence issued under the Act. It was argued that the declaration made by this Court under section 5 of the Sea Customs Act, was binding on all the authorities or Tribunals within the territorial jurisdiction of this Court and the Collector of Customs had no jurisdiction to ignore the said order and proceed with a fresh enquiry in direct contravention of the law declared by this Court. The Supreme Court held that the law declared by this Court was binding on all authorities or tribunals under its superintendence and with that they could not ignore it either in initiating a proceeding or deciding a right involved in such a proceeding. Mr. Deb contended that the order made by the Municipal Magistrate and also by this Court in revision was binding on the Commissioner of the Corporation.

7. In our opinion Mr. Deb's contentions on this aspect of the case are sound. Undoubtedly the Magistrate had a discretion in making an order for demolition or in refusing to make one. And the order of the learned Magistrate as upheld by this Court is binding on all authorities and tribunals over which this Court exercises powers of superintendence. This proposition however has not been contested by Mr. S. Roy who appeared for the added respondents Nos. 3, 4 and 5. Mr. Roy argued that although the Magistrate, who was a Judicial Officer, had a discretion in the matter under s. 363 of the 1923 Act, the Commissioner acting under s. 414 of the 1951 Act had no such discretion, in exercising the same powers, which were transferred to the Commissioner. We shall, deal with Mr. Roy's contentions later.

8. Mr. Deb referred to another decision of a Division Bench of this Court in Basanta Kumar Das… v. Corporation Of Calcutta…Opposite Party., (3) 38 C.W.N 280. In that case the meaning and effect of the word ‘may’ in S. 363 and Rule 65 of Schedule XVII of the 1923 Act came up for consideration and it was held that the word ‘may’ conferred a discretion upon the Magistrate. We accept Mr. Deb's contention that the word ‘may’ in S. 363 of the 1923 Act conferred a discretion upon the Magistrate.

9. Mr. S. Roy on the other hand contended that the word ‘may’ in S. 363 of the 1923 Act conferred a discretion on the Magistrate who was a Judicial Officer. But he urged that the powers which were exercised by the Municipal Magistrate under S. 363 of the 1923 Act have been transferred to the Commissioner under S. 414 of the 1951 Act. The Commissioner is an executive or administrative officer and therefore, Mr. Roy argued, ‘may’ in S. 414 could not be regarded or treated as conferring any discretion upon the Commissioner and it should be treated to mean ‘must’. He argued that S. 414 of the 1951 Act conferred upon the Commissioner of the Corporation a discretion coupled with a duty and therefore the word ‘may’ should be construed to mean ‘must’. The Commissioner, according to Mr. Roy, had no discretion in the matter of ordering a demolition, once he is satisfied that the erection of a building has been commenced or is being carried on or completed without permission or is being carried on or completed in breach of any provision contained in the Act or any rules or by-laws thereunder. In support of this contention Mr. Roy referred to the decision of the Supreme Court in The State Of Uttar Pradesh v. Jogendra Singh , (4) A.I.R 1963 S.C 1618. In that case the Supreme Court was considering the effect of the word ‘may’ as used in Sub-rule (2) of Rule 4 of the U.P Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. It was held that the word ‘may’ was capable of meaning ‘must’ or ‘shall’ in the light of the context and that where & discretion is conferred upon a public authority coupled with an obligation, the word ‘may’ which denotes discretion should be construed to mean a command. The effect of this decision, in our opinion, is that whether the word ‘may’ means ‘must’ or ‘shall’ or whether it confers a discretion should be judged with reference to the context, in which the word ‘may’ has been used and in the context in which the word ‘may’ was used in the said Rule, the Supreme Court held that it meant ‘must’. We should; also point out that the obligation of the Commissioner to make an order for demolition would arise only if he is satisfied that a building has been erected or construction is being carried on without permission. It is not an absolute obligation, but an obligation conditional upon the happening of certain events.

10. Mr. Roy also referred to the decision in In Re: Bowman (5) (1932) 2 K.B 621. In that case a clearance order was made by a local authority under the English Housing Act, 1930, by which it was required that certain buildings to which it related were to be vacated in a less number of days from the date on which it would become operative than the period of 28 days from that date as required by the Act. The order was confirmed by the Minister of Health with certain modifications. It was held that the mistake in the number of days having been rectified by the Minister it could not be said that the requirement of the Act as to the number of days was not complied with. In our opinion this decision has no application to the instant case now before us either in law or in facts.

11. Mr. Roy also referred to another decision of the Supreme Court in Budhan Chbwdhry v. The State of Behar, (6) (1955) 1 S.C.R 1045. In that case the Supreme Court considered the validity of section 30 of the Code of Criminal Procedure. It was argued that Art. 14 of the Constitution had been violated as the appellant was tried by a section 30 Magistrate who followed the warrant procedure which was different from the procedure followed by a Court of Sessions. The grievance of the appellant was that a trial before the Sessions Judge was more advantageous to the accused, in that he gets the benefit of commitment proceedings before a Magistrate and then a trial before the Sessions Judge with the aid of a Jury or Assessors. It was on these facts that the Supreme Court held that judicial decision must of necessity depend on the facts and circumstances of each particular case and what might superficially appear to be an unequal application of law might not amount to a denial of equal protection of law, unless there was present an element of intentional discrimination. In our opinion these observations of the Supreme Court on which Mr. Roy relied have no application to the instant case now before us.

12. It was next urged by Mr. Roy that the conduct of the appellants has to be looked into. He argued that if the Commissioner of the Corporation has not complied with the order of Sinha, J., in considering the plan submitted by the appellants, the latter might apply for execution of the order or if the order has been violated, they should apply for committal of the Commissioner for contempt of Court. But they have no right to apply for issue of a Writ under Art. 226 of the Constitution for violation of the order of Court. The duty imposed upon the Commissioner to consider the building plan submitted by the appellants, was not a duty imposed by a statute, but a duty imposed by an order of Court and therefore a Writ under Art. 226 of the Constitution could not be issued to compel obedience to an order of Court. Mr. Roy argued that if it was held that a writ could be issued in aid of the appellants in this matter, then in every case a Writ is to be issued, if the terms of a decree or any other order of Court were not carried out by the party against whom the decree or order was made. We cannot accept this contention of Mr. Roy. The application under Art. 226 was made by the appellants not to enforce obedience to the order of Sinha, J., but to compel the Commissioner of the Corporation to act according to the terms of S. 414 of the Calcutta Municipal Act, 1951. The order sought for by the appellant was an order directing the respondents to withdraw, set aside or cancel the notice dated June 6, 1955, under S. 414 of the 1951 Act and also to set aside or cancel the order of demolition dated January 28, 1958. The order made by Sinha, J., on July 21, 1954, directing revocation of sanction of the plan had already been given effect to by the Commissioner and it was only because effect was given to that order that the notice dated February 4, 1958, incorporating therein the order dated January 28, 1958 for demolition of the structures was issued by the District Building Surveyor.

13. The next point urged by Mr. Deb was that S. 414 of the 1951 Act was not retrospective but prospective in its effect. The structure, Mr. Deb contended was completed in 1948 and the detection of the unauthorised construction took place in October, 1948. The sanction ef the plan Ne. 105 of 1948 was given on June 9, 1948, and under the 1923 Act the sanction lapsed on the expiry of three years from the date of sanction. Mr. Deb argued that the Calcutta Municipal Act, 1923, was repealed by S. 2(1) of the 1951 Act. That being so, he argued that the notice dated June 6, 1955, under S. 414 of the 1951 Act could not be issued by the Corporation, nor could the Commissioner pass the order for demolition on January 28, 1958, purporting to act under 1951 Act.

14. Mr. Roy contended that S. 414 of the 1951 Act was retrospective in operation as S. 2(2) of the Act provides that every permission or sanction granted under the 1923 Act, shall so far as it is in force at the commencement of this Act, be deemed to have been passed or granted or issued under the 1951 Act. He argued that the sanction of the plan No. 105 must be treated to be a sanction under the 1951 Act and under Rule 63 of Schedule XVI of the 1951 Act the Commissioner had the power to cancel the permission to erect a building if he was satisfied that such permission was granted by reason of any material misrpersentation or fraudulent statement. In this case, Mr. Roy argued, Sinha, J., had already held that the sanction was obtained by misrepresentation or fraudulent statement made by the applicant for sanction and an order for revocation of the sanction had also become final, and therefore Mr. Roy contended, that S. 414 was retrospective in operation and the Commissioner of the Corporation was justified in making an order for demolition under the 1951 Act. He further contended that in so far as S. 414 of the 1951 Act deals with procedural matters and also is for the benefit of the public, it is retrospective in operation. In support of this contention Mr. Roy relied upon the judgment of G.K Mitter, J., in Suit No. 4847 of 1952— Noorjehan v. Jasodalal Bysack (7) (unreported). This question, namely, whether section 414 of the 1951 Act is retrospective in operation was also considered in another decision of this Court in Subhasini Nandy v. Corporation of Calcutta, (8) 59 C.W.N 776, in which Chakravarty, C.J, held that it was impossible to regard section 414 of the 1951 Act as incorporating merely a procedural provision. But the decision however turned on the terms of section 8(e) of the Bengal General Clauses Act which provides that where a Bengal Act repeals any enactment, then unless a different intention appears, the repeal shall not affect any legal proceduring or remedy in the respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment and any such legal proceeding or remedy may be instituted or punishment imposed as if the repealing Act had not been passed.

15. In this case however it is not necessary for us to express any opinion on the question whether S. 414 is retrospective in operation. Sinha. J., in his judgment, dated July 21, 1954, has held “that the respondents Nos. 2 to 6 have gone on constructing inspite of everything that the neighbours can do or the Corporation could be induced to undertake. In fact, further construction has had to be stopped by an injunction issued herein.” So far as we are concerned there is a finding by this Court that construction of the building was carried on after the 1951 Act came into operation, and also that such construction was in violation of the provisions of the Act and the rules or bylaws made thereunder.

16. It is now to be seen if the Commissioner of the Corporation of Calcutta has acted in compliance with the requirement of S. 414 of the 1951 Act in making the order of demolition dated January 28, 1958. On a plain reading of the section, it is abundantly clear, that it confers upon the Commissioner the power to pass an order for demolition of any unauthorised erection or alteration or to show cause why such erection, alteration or addition should not be demolished. Therefore the section itself, in terms confers upon the Commissioner a power either to order demolition, or to issue a show cause notice as to why the order for demolition should not be made. In our opinion the section does not provide that the Commissioner must make an order for demolition in every case where he is satisfied that any erection, alteration or addition of any building has been made or is being carried on in contravention of the Act or the rules made thereunder. While on the one hand the section confers upon the Commissioner the power to make an order for demolition, on being satisfied about any unauthorised construction, the section at the same time confers upon him, the power to issue a notice to show cause on the party, why an order for demolition should not be made. The Commissioner can adopt either of two alternative courses as provided in the section. The Section does not not require that the Commissioner must make an order for demolition on being satisfied that an unauthorised structure has been erected or unauthorised construction is being carried on. It clearly contemplates an alternative course being followed by him, namely, the issue of a notice to the party concerned to show cause as to why an order for demolition should not be made.

17. But the procedure followed by the Commissioner in this case and the action he took are curious. On June 6, 1955, he had issued a notice calling upon the owner of the premisse to show cause within a week from the date of service of the notice why the erection, alteration or addition should not be demolished. He therefore did not proceed to make an order for demolition on being satisfied that an unauthorised construction was being carried on or was completed. But having issued that notice calling upon the party to show cause, the action taken by him thereafter is entirely inconsistent with the issue of the notice by him to show cause. He heard the party's lawyers and thereafter in the order he recorded: “The Commissioner being a creature of statute, has no discretion to condone the unauthorised structure but to take action under the provisions of section 414 of the Act. Thereafter, it is imperative that the unauthorised structure complained of should be demolished.” It is quite evident that although he heard the objections of the party, he proceeded on the footing that he had no discretion in the matter but that he must make an order for demolition. This makes it quite plain that he totally failed to exercise the discretion which the law has conferred upon him and which he purported to exercise. He conducted the enquiry and heard the objections of the parties, not for the purpose of exercising the discretion which the Act has conferred upon him, and which he purported to exercise, but solely for the purpose of giving effect to a decision already arrived at by him, namely, to make an order for demolition. In our opinion the Commissioner has entirely failed to exercise the discretion which S. 414 has conferred upon him. He proceeded to hear the objection with his mind already made up to give effect to his predetermined decision to make an order for demolition of the structure. The was a total failure on his part to exercise the discretion which the statute requires him to exercise.

18. There remains only to refer to another decision relied upon by Mr. Deb in Hopkins v. Smethwick Local Board of Health, (9) 24 Q.B.D 713, in which it was held that where a building had been erected in contravention of the by-laws of the local board of health, it could not be pulled down without giving the owner an opportunity of showing cause why it should not be pulled down.

19. Dealing with the question if the act of the local authority was a judicial act, Wills, J., held: “In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him 51: and as the local board is the only tribunal that can make such an order its act must be judicial act, and the party to be affected should have a notice given him; and there is no notice, unless notice is given of time when, and place at which the party may appear and show cause.” In other words an order for demolition of a building by a local authority is a judicial act and not an administrative or executive act, and being a judicial act, the owner of the building should be given an opportunity of showing cause why the order of demolition should not be made. But in the instant case now before us that opportunity was given. A notice to show cause why the demolition order should not be made was issued. But having issued the notice and having heard the representations made on behalf of the owners, the Commissioner proceeded on the basis that he had no discretion in the matter and must therefore make an order for demolition of the structure. In making the order in the manner it was done, the Commissioner entirely failed to exercise the discretion which law has enjoined. The order for demolition made by him on January 28, 1958, cannot for that reason, be sustained.

20. For the reasons mentioned above, this appeal is allowed and the judgment and order of Sinha, J., dated February 16, 1959, are set aside. Let a Writ or order be issued directing the respondent No. 1 and the respondent No. 2, to withdraw or cancel the order of demolition made by the respondent No. 1 on January 28, 1958. The respondent No. 1 will be at liberty to deal with the matter according to law. Each party to bear its own costs, in this court and also in the trial court.

Bose, C.J:— I agree.

S.N.G