HRISHIKESH DUTT Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) This rule is directed against the order of the Police Magistrate of Howrah, dated 20th December 1939 under which he convicted the petitioner, Hrishikesh Dutt, of an offence under Section 365(1), Calcutta Municipal Act, as extended to Howrah, read with Section 488 of the Act. The case for the prosecution was to the effect that the petitioner had been directed by the municipal authorities on 19 February 1939 to cease work in connexion with the construction of a verandah which he was building to the south of his premises situated at 65, Lakshman Das Lane, Howrah. The petitioner ignored this notice and continued the building operations with the result that he was prosecuted as stated above. The petitioner's main contentions before the learned Magistrate seem to have been that he did not violate any of the building regulations of the Municipality and that, in any event, inasmuch as the Commissioners had passed no orders with reference to his application to erect the building, which was submitted to them on 15 February 1938 he was entitled to assume that the requisite written permission had been granted to him having regard to the provisions of Rules 57 and 58 of Schedule 17 annexed to the Act.

(2.) The learned Magistrate came to a finding of fact to the effect that it had not been established that the petitioner Hrishikesh Dutt had violated any of the building rules under the Municipal Act. He held however that the petitioner had disobeyed the notice which was served on him under Section 365(1) of the Act for the purpose of prohibiting him from proceeding with the building work and, in these circumstances, the learned Magistrate found him guilty under Section 365 read with Section 488 of the Act and sentenced him to pay a fine of Rs. 60 with costs amounting to Rs. 3-12-0, or, in default to suffer simple imprisonment for one month. On behalf of the petitioner it has been urged in this case that his conviction is illegal as the order which was issued against him on 19 February 1939 under Section 365(1) of the Act cannot be regarded as a valid order because an order of this nature can only be issued in circumstances to which reference is made in Section 363 of the Act. With reference to this Section it is pointed out that, in view of the finding of fact at which the learned Magistrate arrived with regard to the alleged non-compliance with the building rules, the petitioner could only be convicted under Section 361 read with Section 488 of the Act if he had proceeded with his building operations without having obtained the written permission of the Municipality. In this connexion it is, however, argued that, as the Municipality passed no orders with reference to the petitioner's application within 15 days of the receipt thereof, be became entitled to the benefit of the presumption raised in Rule 58 of Schedule 17 of the Act, under which it is provided that: If within the period prescribed by Rule 57, the Commissioners have neither granted nor refused to grant permission to execute any work, such permission shall be deemed to have been granted.

(3.) The main point for consideration, therefore, in connexion with this matter is whether, having regard to the presumption raised by Rule 58, the order in respect of which the petitioner has been prosecuted can be regarded as a valid order. At this stage it will be convenient to mention certain admitted facts connected with the proceedings relating to this case. Prior to the submission to the Municipality of his application, dated 15 February 1938, some difficulties had occurred between the petitioner and the Municipality in connexion with the erection of the new premises at 65 Lakshman Das Lane, Howrah, more particularly in connexion with construction of a privy. It would appear that thereafter the petitioner, on 15th February 1938, applied to the Municipality for formal permission to erect certain new buildings at the above-mentioned address and with this application he submitted plans as required by Rule 52 of Schedule 17. The application had no connexion with the privy with regard to which difficulties had occurred previously, but the plans included specifications for the erection of verandahs to the north and south of the new building. After receipt of the application ia the municipal office, orders were passed on 18 February 1938 to the effect that the petitioner should be asked to expose the foundations of the building in order that they might be inspected. This requisition appears to have been duly issued and the municipal authorities were informed on 22 February, 1938 that the foundations were ready for inspection. The inspection took place on 24 February 1938. A further inspection took place on 12 March and, on 23 March 1938, the petitioner was informed that his application, dated 15th February 1938, could not be granted on account of certain objections which were set forth in detail in the Commissioner's letter. In the beginning of the following year, namely on 10th January 1939, the petitioner's case came before the Building Committee of the Howrah Municipality, but it appears that, in spite of the refusal contained in the Commissioners letter dated 23 March 1938, the petitioner continued building operations with the result that a notice under Section 365(1) of the Act was served on him on 19 February 1939, and as stated above, it has been found by the learned Magistrate that he violated this order.