CHAIRMAN, KALIMPONG MUNICIPALITY Vs. R.M. PROSAD

JUDGEMENT

(1.) The Chairman of the Kalimpong Municipality with the special leave of the Court under Sec. 417(3) of the Code of Criminal Procedure filed this appeal against the acquittal of the Respondent in a case under Sec. 501 of the Bengal Municipal Act. The short allegation against the accused in the case was that he was the owner of a four -storied building within the Kalimpong municipal area and that without the sanction of the Municipality he started construction and also completed the construction of a fifth storey above the fourth storey. The defence in the case was that the construction was in effect an addition to the building and that as the building rules framed by the Kalimpong Municipality do not provide for any sanction for construction, which is an addition to an existing building, no offence could have been caused by the construction, which is the subject -matter of the charge under Sec. 501 of the Bengal Municipal Act in the case.

(2.) The learned Magistrate held that although the building rules of the Municipality might not have made any specific provision for material additions and alterations to existing buildings, there is Sec. 326 of the Bengal Municipal Act which would make such additions or alterations without the sanction an offence, and in this view of the matter he convicted the accused and sentenced him to pay a line of Rs. 500, in default, to suffer simple imprisonment for two months.

(3.) The accused took an appeal to the Sessions Judge, who found that Sec. 326 of the Bengal Municipal Act had not been made applicable to the Kalimpong Municipality by an appropriate order of the State Government under Sec. 312 of the Act. As, according to the learned Sessions Judge, the building rules of the Municipality do not make provision for obtaining sanction to additions to and alterations in buildings and as the impugned construction according to him was nothing but a material addition to the building, the mischief of Sec. 501 of the Act would not be attracted to the case. On this finding he set aside the order of conviction and sentence made by the learned Magistrate and acquitted the accused. It is the propriety of this order of acquittal which is the subject -matter of the present appeal.