CORPORATION OF CALCUTTA Vs. MULCHAND AGARWALA

JUDGEMENT

(1.) This is an appeal against the judgment of the High Court of Calcutta affirming the order of the Municipal Magistrate whereby he dismissed an application filed by the appellant under S. 363 of the Calcutta Municipal Act, 1923, hereinafter referred to as the Act, for demolition of certain constructions on the ground that had been erected without the previous permission of the authorities and in contravention of the prescription laid down in the building rules.

(2.) The respondent is the owner of house No. 36, Armenian Street, Calcutta. On 28-10-1950 the Building Inspector of the Corporation discovered that some new masonary structures were being constructed on the fifth storey of that house. A notice under S. 365 of the Act was immediately served on the respondent directing him to stop forthwith further constructions pending an application to the Magistrate under S. 363 of the Act. What followed thereon is graphically described by the learned Chief Justice of the High Court is his order dated 9-4-1954 granting leave to appeal to this Court, as a hide-and-seek game. On receipt of the notice, the respondent stopped the work for a few days, and thereby lulled the Building Inspector into the belief that no further constructions would be made. When the Inspector ceased to inspect the premises daily, the respondent resumed the work, and on 7-11-1950 when the Inspector came again on the scene, he found that the construction was being proceeded with. A police constable was then posted for watch under S. 365 (3) of the Act, and he continued there till 10-11-1950, 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 The police watch thereupon withdrawn on the respondent paying Rs. 40 being the charges payable therefor.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 construction 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 S. 488 read with R. 62 of Sch. XVII charging the respondent with constructing two rooms in the fifth story 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.

(3.) While the proceedings under S. 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 Sch. XVII, and decided to take action under S. 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 S. 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 the had a discretion under S. 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 construction being on the fifth story 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 proceedings under S. 488 an order of demolition would be to penalise him twice over for the same offence.