AMULYA RATAN CHOUDHURY Vs. MUNICIPAL COMMISSIONERS, BONGAON MUNICIPALITY

JUDGEMENT

(1.) This Rule is against an order dated January 3, 1969, passed by Sri R. N. Samaddar, Magistrate, First Class, Bongaon, district 24 -Parganas, directing the opposite party Petitioner Amulya Ratan Choudhury to demolish the impugned construction as having been constructed in clear violation of the directions given in the sanctioned plan under Sec. 330(l)(i) of the Bengal Municipal Act, 1932, in case No. C/456 of 1959.

(2.) The facts leading on to the Rule are chequered but can be put in a short compass. The case for the first -party opposite party No. 2, the Vice -Chairman, Bongaon Municipality, is, inter alia, that the second -party Petitioner Amulya Ratan Choudhury and his mother Sm. Sarojini Bala Choudhury had purchased a land on plot No. 719 of mouza Bongaon, P.S. Bongaon, within the municipal limits of the town of Bongaon, in front of the 'Bangasree' cinema hall, and started a masonry construction in 1959 at the site without submitting any application to the Municipality for sanctioning the requisite plan; the facts came to the knowledge of the Municipality, and Sri K. P. Bhowmick, the Chairman, by his letter dated March 23, 1959, directed the above -mentioned second -party Petitioners to stop the construction of the building pending the submission of a building and site plan by them and the approval thereof in terms of Sec. 317 of the Bengal Municipal Act, 1932. An application for sanction was thereafter submitted and the plan was sanctioned fraudulently, as alleged, on a suppression of material facts on March 25, 1959. The conditions which were imposed by the Chairman while sanctioning the plan, namely, to keep an open space of 4 ft. on the road -side and 2 ft. each on either side, were not conformed to by the second -party Petitioners and they continued the construction of the building in violation of the aforesaid conditions. They were, accordingly, directed to stop any further construction by a letter from the Chairman dated June 13, 1959, but the Petitioners proceeded to construct the building in defiance of the directions given by the Chairman, who went on leave, and Sri J. B. Bala, the Vice -Chairman, who took charge of the office of the Chairman in accordance with the provision of Sec. 54 of the Bengal Municipal Act, informed the Police and the Sub -Divisional Magistrate, Bongaon, and as a result there was an order for maintaining status quo. The Chairman in the meanwhile rejoined his duties and visited the place along with the Vice -Chairman and others and issued thereafter a notice under Sec. 333(1) of the Bengal Municipal Act upon the second -party Petitioners on July 21, 1959, and prayed on the following day before the learned Sub -Divisional Magistrate, Bongaon, under Sec. 330 of the Bengal Municipal Act, 1932, for necessary orders being passed for demolishing the impugned construction, and case No. C/441 of 1959 was started. Notices were issued upon the Petitioners, but on December 30, 1959, the case was filed by the learned Sub -Divisional Magistrate on a prayer made by the Chairman because his election was set aside. The Vice -Chairman Sri J. B. Bala, thereafter took over charge of the works of the Chairman and on August 1, 1959, he submitted a fresh petition before the learned Sub -Divisional Magistrate, Bongaon, under Sec. 330 of the Bengal Municipal Act, 1932, praying for demolition of the illegal construction made by the Petitioners and the present proceeding, being case No. C/456 of 1959, were started thereupon. The case on behalf of the Petitioners, inter alia, is that there has been no violation of the sanctioned plan as alleged or at all in constructing the building in question to warrant the present proceedings ; that the building in question consists essentially of shop rooms and, accordingly, does not come within the category of dwelling house or domestic building provided for in Sch. VI of the Bengal Municipal Act, 1932, and, therefore, the present proceedings are unwarranted and untenable ; that the terms and conditions which were imposed by the Chairman, Bongaon Municipality, in sanctioning the plan are arbitrary and without jurisdiction ; that neither the Chairman nor the Vice -Chairman of the Municipality had obtained any authority from the Commissioners of the Bongaon Municipality to lodge the present proceedings against the Petitioner and, as such, the learned Sub -Divisional Magistrate had erred in taking cognizance ; that the petition under Sec. 330 of the Bengal Municipality Act, 1932, by the Vice -Chairman having been filed during the pendency of the petition filed by the Chairman over the same subject -mater and the earlier petition having been disposed on December 30, 1959, the learned Magistrate should not have re -opened the same question once over again ; that the Bongaon Municipality had not framed any bye -laws for the purported violation whereof the Petitioner could be prosecuted ; that the person really interested in the prosecution is a private complainant, namely Khagendra Nath Basu, the Manager of Bangasree cinema house and it was at his instance that the ball was set rolling ; and that in any event there should be no total demolition of the premises in question in view of the facts and circumstances of the case. The case, thereafter, had a chequered career and ultimately came to the file of Sri R. N. Samaddar, Magistrate, First Class, Bongaon, for being tried under Sec. 330 of the Bengal Act XV of 1932. Nine witnesses were examined on behalf of the first party -opposite parties and eight on behalf of the second -party Petitioners while one Court witness was examined in the case and several documents were proved in course of the trial, as a result whereof the learned trying Magistrate by his order dated January 3, 1969, passed the order of demolition as referred to above under Sec. 330(l)(i) of the Bengal Municipal Act, 1932. This order has been impugned and forms the subject -matter of the present Rule.

(3.) Mr. Surendra Nath Basu (Sr.), Advocate (with Mr. Satyendra Chandra Sen, Advocate), appearing in support of the Rule on behalf of the Petitioner Amulya Ratan Choudhury, made a five -fold submission. The first contention of Mr. Basu is that the proceedings having been instituted against joint owners, the ultimate order that was passed for demolishing the entire structure has been bad in law and improper. The second contention advanced by Mr. Basu is about a purported non -conformance to the material provision of Sec. 332 of the Bengal Municipal Act, 1932, because the complaint was not lodged by the Commissioners in a meeting. Mr. Basu next contended that the learned Magistrate has materially erred in his interpretation of the provision of Sch. VII of the Bengal Act XV of 1932, in not considering that the same applies to dwelling houses and not to shops, which the impugned constructions ultimately are. The fourth submission of Mr. Basu is that a notice under Sec. 321 of the Bengal Municipal Act, 1932, is the sine qua non of a prosecution under Sec. 331 of the said Act and the same having not been conformed to, the resultant proceedings stand vitiated. The fifth and the last submission of Mr. Basu is that, in any event, in view of the facts and circumstances of the case and the nature of the construction, it is expedient in the interests of justice that the learned Magistrate should have considered as to whether any partial demolition of the same was possible and the failure on his part to take the same into consideration and pass necessary directions for the same, has resulted in a failure of justice. In this context, Mr. Basu pinpointed the expression 'or so much thereof as contained in Sec. 330 of the Bengal Municipal Act, 1932, and contended that some meaning must be given thereto to give effect to the intention of the Legislature in that behalf. Mr. Devaprosad Chaudhuri, Advocate, appearing on behalf of the opposite party No. 2, the Vice -Chairman of Bongaon Municipality, has joined issue. Mr. Chaudhuri has contended that the first submission made on behalf of the Petitioner centering round the purported institution of a proceeding against joint owners and the ultimate order passed therein for demolition of the entire house, is more technical than real and is even ruled out by the averments made in the petition upon which the present Rule was obtained. Mr. Chaudhuri referred to the admission made on behalf of the Petitioner in para. 2 of the petition before this Court in this connection that his mother had died on July 1, 1968, much before the impugned order was passed. With regard to the second contention raised by Mr. Basu, Mr. Chaudhuri submitted that the same is misconceived inasmuch as the complaint in the instant case was lodged by the Vice -Chairman of the Municipality, and in view of the provisions of Ss. 51 to 54 of the Bengal Act XV of 1932 the said objection is not maintainable in law or on merits. The third submission of Mr. Basu, according to Mr. Chaudhuri, does not stand on a better footing inasmuch as the said argument overlooks the definitions of a 'dwelling house' and of a 'house' as provided for in Sec. 3, Sub -sections (15) and (22) respectively. Mr. Chaudhuri contended in this context that the said definition is a complete answer to the objection raised on behalf of the Petitioner and there is no cloud on the question as was sought to made out. Mr. Chaudhuri next submitted that the fourth contention of Mr. Basu is also unwarranted and untenable inasmuch as the Legislature never intended that the provision of Sec. 321 of the Bengal Act XV of 1932 are in any way the condition precedent for instituting a proceeding under Sec. 330 of the said Act and to hold so would be circumscribing the intention of the Legislature unnecessarily. With regard to the fifth and the last submission of Mr. Basu, Mr. Chaudhuri contended that this, in fact, is a construction which was carried out in blatant disregard of the provisions of the Municipal Act and in spite of the notices served from time to time upon the delinquent and, in fact, the matter is a serious one because even the plan that was sanctioned was not sanctioned properly leaving much room for doubt as to how the same could have been obtained and even the conditions mentioned therein have been observed only in their breach. The second branch of Mr. Chaudhuri's contention in this behalf was that the construction is of such a nature that no fruitful purpose would be served by directing remand for ascertaining as to whether it was possible to avoid a complete demolition of the entire structure.