17 November 1955
Supreme Court


Case number: Appeal (crl.) 60 of 1954






DATE OF JUDGMENT: 17/11/1955


CITATION:  1956 AIR  110            1955 SCR  (2) 995

ACT: Calcutta Municipal Act, 1923, (Bengal Act III of 1923),  ss. 363,  488  and Rule 62 of  Schedule  XVII-Prior  proceedings taken by Corporation of Calcutta under s. 488 read with Rule 62  of  Schedule  XVII  -Whether a  bar  to  the  subsequent proceedings  under  s.  363 of  the  Act  -Inconvenience  to neighbours-Whether   relevant  for  making  an   order   for demolition  under s. 363 of the Act-Proceedings on the  same facts  competent  to be taken under two  different  sections providing different penalties-Whether distinct  proceedings- Word  "may"  in s. 363 of the Act,  whether  means  "shall"- Discretion  vested  in  the Magistrate  under  s.  363-Order passed  by  on authority entrusted with discretion  to  pass such  order-When liable to be interfered with by the  appel- late Court.

HEADNOTE: The  Corporation  of Calcutta is not precluded  from  taking proceedings under s. 363 of the Calcutta Municipal Act, 1923 by  reason  of its having taken  proceedings  prior  thereto under s. 488 of the Act read with Rule 62 of Schedule XVII. The question of inconvenience to neighbours is not  relevant for the purpose of deciding whether an order for  demolition should be made under s. 363 of the Act. When  the  Legislature  provides  that  on  the  same  facts proceedings could be taken under two different sections  and the  penalties provided in those sections are not the  same, it  obviously  intends  to  treat  them  as  distinct,  and, therefore,  where  no question under s. 403 of the  Code  of Criminal  Procedure  arises,  proceedings  taken  under  one section cannot be treated as falling within the other. The word.  "may" in s. 363 of the Act does not mean  "shall" and the Magistrate has under that section discretion whether he should pass an order for demolition or not. It  is  a well-settled principle that when  the  legislature entrusts  to an authority the power to pass an order in  its discretion an order passed by that authority in exercise  of that discretion is, in general, not liable to be  interfered with  by an appellate court, unless it can be shown to  have been  based on some mistake of facts or  misapprehension  of the principles applicable thereto. In the present case, however, the orders of the courts below



were based on mistakes and misdirections and therefore could not be supported. But  the Supreme Court did not think this to be a  fit  case for an order for the demolition of the buildings in view  of certain  special circumstances, viz, (1) though s.,  363(2), which directs that no appli- 126 996 cation for demolition shall be instituted after the lapse of five  years  from the date of the work, did not,  in  terms, apply  as the proceedings had been started in time,  it  was nearly five years since the building bad been completed  and the interests of the public did not call for its demolition, and (2) the appeal came on a certificate granted under  art. 134(1)(c)  with  a  view to obtaining the  decision  of  the Supreme Court on certain questions of importance. Abdul  Samzad v. Corporation of Calcutta ([1905]  I.L.R.  33 Cal. 287), referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 60  of 1954. Appeal under Article 134(1)(c) of the Constitution of  India from  the Judgment and order dated the 19th January 1954  of the Calcutta High Court in Criminal Revision No. 865 of 1953 arising  out of the Judgment and Order dated the 29th  April 1953 of the Court of Third Municipal Magistrate, Calcutta in Case No. 108-A of 1951. N.   C. Chatterji, (S.  K. Bose and Sukumar Ghose, with him) for the appellant. G.   P.  Kar,  (A.  K. Mukherjee and D. N.  Mukherjee,  with him) for the respondent. 1955.  November 17.  The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-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 section 363 of  the  Calcutta Municipal Act, 1923, hereinafter referred to as the Act, for demolition of certain constructions on the ground that  they had  been  erected without the previous  permission  of  the authorities  and in contravention of the prescriptions  laid down in the building rules. 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 masonry  structures were being constructed on the fifth storey of that house.  A notice  under section 365 of the Act was immediately  served on  the respondent directing him to stop  forthwith  further con- 997 structions  pending an application to the  Magistrate  under section   363  of  the  Act.   What  followed   thereon   is graphically  described by the learned Chief Justice  of  the High  Court  in 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 section 365 (3) of the  Act, -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 was 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  construc- tion  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 section 488 read  with Rule  62  of  Schedule XVII  charging  the  respondent  with constructing two rooms in the fifth storey 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. While the proceedings under section 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 Schedule XVII, 998 and  decided  to  take  action  under  section  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 section 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 he  had  a discretion  under  section  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 constructions  being on the fifth storey 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  pro- ceedings under section 488, an order for demolition would be to penalise him twice over for the same offence. Against  this order, the appellant preferred a  revision  to the  High  Court  of  Calcutta.  That was  heard  by  K.  C. Chunder, J. He agreed with the Magistrate that under section 363  the  court  had a discretion whether  it  should  order demolition  or  not, and that as the Corporation  had  taken proceedings under section 488 and was content to have a fine imposed on the respondent for breach of Rule 62, it would be unjust  to permit it thereafter to start  proceedings  under section  363  for the further relief of  demolition  of  the building.  He also commented on the undue ,delay on the part of  the Corporation in taking out the application, and  took into  account the fact that no complaint had  been  received from  the  locality.   In  the  result,  he  dismissed  the- revision. The  appellant applied under article 134(1)(c) for leave  to appeal to this Court.  Chakravarti, C. J. and



999 S.  R. Das Gupta, J. who heard this application,  considered that  two questions of general importance arose on which  it was desirable to have the decision of this Court, viz.,  (1) whether   the   Corporation  was   precluded   from   taking proceedings  under section 363 of the Act by reason  of  its having taken proceedings prior thereto under section 488  of the Act read with Rule 62 of Schedule XVII, and (2)  whether the question of inconvenience to neighbours was relevant for the  purpose  of deciding whether an  order  for  demolition should  be  made  under  section  363  of  the  Act.    They accordingly granted leave under article 134 (1)(c), and that is how the appeal is now before us. The  first  question that arises for  our  determination  is whether the present proceedings under section 363 are barred by  reason of the application which was filed under  section 488.   It is conceded that there is nothing express  in  the statute enacting such a bar, but it is contended that it  is to  be implied from the proviso to section 363  that  "where the  Corporation have instituted proceedings  under  section 493,  no  application  shall be made  under  this  section". Admittedly,  the appellant instituted no  proceedings  under section 493; but it is argued that proceedings under section 488  substantially  fall within section 493,  and  that  the proviso  should therefore be held to be  applicable.   Under section  493,  if  the  erection  of  any  new  building  is commenced  without  obtaining the writen permission  of  the Corporation, the owner of the building shall be liable to  a fine  which  may  extend up to Rs. 500.  Then,  there  is  a proviso  that  where  an application  had  been  made  under section  363, no proceeding shall be instituted  under  this section.  This corresponds to the proviso to section 363 set out above, and reading the two provisions, it is clear  that the   proceedings  under  the  two  sections  are   mutually exclusive.  Now, the contention of the respondent is that  a prosecution  under  section  488 for breach of  rule  62  of Schedule  XVII is, in essence, a prosecution  under  section 493(a),  and  that, therefore, the proviso  to  section  363 becomes applicable.  We are 1000 unable to agree with this contention.  When the  Legislature provides  that on the same facts proceedings could be  taken under  two different sections and the penalties provided  in those  sections  are not the same, it obviously  intends  to treat  them as distinct, and, therefore, where  no  question under section 403 of the Code of Criminal Procedure  arises, proceedings  taken  under one section cannot be  treated  as falling within the other.  The penalty prescribed in section 488 for breach of rule 62 of Schedule XVII is fine up to the limit of Rs. 200, whereas the penalty provided for the  same offence under section 493(a) is fine which may extend to Rs. 500.   It  will  not therefore be  in  consonance  with  the intention of the Legislature to hold that proceedings  under section  488 are in substance the same as proceedings  under section  493, so as to be subject to the disability  enacted in  the  proviso to section 363.  If the  intention  of  the Legislature  was  that proceedings taken under  section  488 read  with rule 62 of Schedule XVII should  bar  proceedings under section 363, it could have said so expressly as it did with  reference to proceedings taken under section 493.   To accede to the contention of the respondent would be to  read into  section  363  limitations which are not  to  be  found there.  We cannot accept such a construction. It  was  next argued by learned counsel for  the  respondent that  it  was  open to the Corporation  to  have  asked  for



demolition  of the building in the proceedings taken  by  it under  section  488, and as it did not ask for  it  and  was content  with the imposition of fine, it was precluded  from claiming  that  relief  in the  present  proceedings.   This argument is based on section 536, which is as follows: "When  under  this  Act  or under any  rule  or  bylaw  made thereunder any person is liable, in respect of any  unlawful work,- (a)  to pay a fine, and (b)  to be required to demolish the work, a  Magistrate  may,  in his discretion and  subject  to  the provisions  of  sections 363, 364 and 493, direct  the  said person to pay the fine and also to demolish the work". 1001 In  his  order  dated 9-4-1954, the  learned  Chief  Justice expressed a doubt whether the Corporation could apply for  a demolition  order,  when instituting  an  application  under section 488 for breach of Rule 62 of Schedule XVII.  We  are inclined to share this doubt.  What Rule 62 prohibits is the erection  of a building without permission, and  under  that Rule,   the  breach  is  complete  when  the  erection   has commenced, without reference to whether the construction  is being  carried  on or completed.  A question  of  demolition cannot  therefore arise with reference to a breach  of  Rule 62.  It can arise only when the construction of the building is carried on or completed otherwise than in accordance with the  terms  of  the permission or in breach of  any  of  the provisions  of  the  Act or the rules.  Now,  in  the  table annexed  to  section  488,  while a breach  of  Rule  62  of Schedule XVII is made punishable with fine which may  extend to Rs. 200, there is no similar provision with reference  to breach  of  Rules 3, 14, 25 and 32 of  that  Schedule.   But there  is,  instead, a provision that when  a  direction  is asked for under section 363(1) for demolition, an order  can be passed imposing fine which may extend to Rs. 250.   Under that  section,  it should be noted, an  application  for  an order for demolition can be made on three grounds, viz., (1) that  the  erection of building has been  commenced  without permission,  (2)  that it has been carried on  or  completed otherwise   than  in  accordance  with  the  terms  of   the permission, or (3) that it has been carried on or  completed in  breach  of the provisions contained in the  Act  or  the rules.  But there is this difference between an  application based  on ground No. 1 aforesaid and one founded on  grounds Nos.  2  and 3, that while a question of  demolition  cannot arise  with reference to the former when the charge is  com- mencement or the construction without permission and at that stage  no question of demolition of, a building  necessarily arises, it does arise as regards the latter. Therefore, when an  application is made under section 488, whether an  order could  be made under section 536 for demolition will  depend on the ground on which it is founded.  And, where, as in the 1002 present   case,  the  application  was  based   solely   and exclusively  on  a breach of Rule 62 of  Schedule  XVII,  no order  could have been passed for demolition  under  section 536.   It  is immaterial for the present  purpose  that  the building had been completed when the order was passed on 11- 4-1951  on  the application under section 488,  because  the power  to  pass an order under section 536 would  depend  on what the charge as actually laid in the petition was and not on what it might have been. But  even if the Magistrate had the power under section  536 to order demolition of the building, we cannot hold that the appellant  is precluded from asking for such an order  under



section 363 merely by reason of the fact that the Magistrate had  failed  to  pass  such  an  order,  or  even  that  the Corporation  did  not ask for it in the  prior  proceedings. There is no question of the application of any principle  of constructive  res  judicata,  and there is  nothing  in  the statute which bars the appellant from claiming relief  under section 363.  We cannot therefore uphold the contention that the  appellant  is  precluded in any  manner  by  the  prior proceedings  taken  under section 488 from  instituting  the present petition under section 363. In  this view, the point for decision is whether  the  order passed  by  the  Municipal Magistrate and  affirmed  by  the learned  Judge in revision is open to attack on the  merits. The  respondent  contends  that  the  Magistrate  has  under section 363 a discretion whether he should pass an order for demolition or not, and that this Court should not in  appeal interfere  with the exercise of that  discretion  especially when  it has been concurred in by the High Court.  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 1003 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.  That was the construction put in  Abdul Samad  v. Corporation of Calcutta(’) on section 449  of  the Calcutta  Municipal  Act,  (Bengal Act III  of  1899)  which corresponds  to section 363 of the present Act  on  language which  is,  so far as the present matter is  concerned,  the same.  in re-enacting the present section in the same  terms as  section 449 of Bengal Act III of 1899, it must be  taken that the legislature has accepted the interpretation put  on them  in  Abdul  Samad  v.  Corporation  of  Calcutta(1)  as correctly representing its intention.  It should accordingly be  held  that the word ’may’ in section 363 does  not  mean "shall’,  and that the Magistrate has under that  section  a discretion whether be should pass an order for demolition or not. Then the question is whether the exercise of that discretion by the courts below is open to review by this Court.  It  is a well-settled principle that when the legislature  entrusts to  an  authority  the  power  to  pass  an  order  in   its discretion, an order passed by that authority in exercise of that discretion is, in general, not liable to be  interfered with  by an appellate court, unless it can be shown to  have been based on some mistake of fact or misapprehension of the principles applicable thereto.  The appellant contends  that the   orders  under  appeal  are  based  on   mistakes   and misapprehensions,  and are therefore liable to be  reversed, and  that contention must now be examined.  The  grounds  on which the orders of the courts below are based are (1)  that there  has  been  considerable  delay on  the  part  of  the appellant  in  moving  in the matter, (2)  that  as  in  the proceedings taken under section 488 the respondent has  been fined,  an order for demolition was not called for, and  (3) that  the breach of the building rules has not  resulted  in any  inconvenience  to the public, nor has  there  been  any complaint  from  the residents of the locality  about  this. The materials placed before us do not show



(1)  [1905] I.L.R. 33 Cal. 287. 127                             1004 that  there  has  been any great delay on the  part  of  the appellant,  The  learned Judge has stated that  the  present proceedings  for  demolition were taken  subsequent  to  the imposition  of  fine on 11-4-1951 in the  proceedings  under section  488.   This is a mistake.   The  proceedings  under section  363  bad been commenced as early as  February  1951 when   notice  was  issued  to  the  respondent  under   the provisions  of that section, and the petition  was  actually filed in court on 4-4-1951.  It is true that the proceedings were pending for nearly two years before the Magistrate, but as  observed  by  the learned Chief Justice,  far  from  the Corporation  being  responsible for it, it appears  to  have been the victim of delay on the part of the respondent. Both  the courts below have mainly based their order on  the fact  that the, Corporation having taken  proceedings  under section   488  and  a  fine  having  been  imposed  on   the respondent,  it would be unjust to impose a further  penalty for  the same offence by way of demolition.  The  assumption on  which this reasoning rests is that the charge  on  which the present proceedings have been taken is the same as  that on  which the petition under section 488 was laid.  But,  as already  pointed out, that is not correct.  The  proceedings under section 488 were taken for erecting a building without permission   whereas  the  present  proceedings  are   taken substantially for breaches of the building rules, which  are quite  independent  of  the charge under Rule  62,  and  the respondent is therefore not punished twice over for the same default.  The learned Judge observes that this was not a fit case  for  exercising  the  discretion  in  favour  of   the appellant,  because in the prior proceedings  under  section 488,  it  did not ask for an order for demolition,  nor  was such  an  order made by the Magistrate.  That  is  obviously with  reference  to  section 536 which we have  held  to  be inapplicable  to  the present case.  Moreover  ,  when  that section enacts that the Magistrate could both impose a  fine and order demolition of the building, that clearly indicates that  the  fact that a fine has been imposed should  not  by itself and with- 1005 out  more,  be  taken  as  sufficient  ground  for  refusing demolition. The courts below were also influenced by the fact that there was  no complaint from the neighbours about the erection  of the building.  It must be remembered that the building rules are  enacted  generally for the benefit of the  public,  and where  those  rules have been violated and  proceedings  are taken  for  an order for demolition of  the  building  under section 363, what has to be decided is whether the  breaches are of a formal or trivial character, in which case the  im- position of a fine might meet the requirements of the  case, or  whether they are serious and likely to affect  adversely the  interests  of  the public, in which case  it  would  be proper  to pass an order for demolition.  Whether there  has been  a  complaint  from the public would  not  as  such  be material for deciding the question, though if there was one, it  would  be a piece of evidence in  deciding  whether  the interests  of  the  public have suffered by  reason  of  the breaches. The  position, therefore, is that the orders of  the  courts below are based on mistakes and misdirections, and cannot be supported.   The  conduct of the respondent  in  adopting  a hide-and-seek  attitude in completing the  constructions  in



deliberate defiance of the law calls for severe action.   It would  be most unfortunate, and the interests of the  public will  greatly  suffer, if the notion were to  be  encouraged that  a person might with impunity break the building  rules and put up a construction and get away with it on payment of fine.   All this would be good justification for  making  an order for demolition.  But then, it is now nearly five years since the building was completed, and though section  363(2) which  directs that no application for demolition  shall  be instituted after a lapse of five years from the date of  the work does not, in terms, apply as the proceedings have  been started in time, we do not feel that after the lapse of  all this  time,  an order for demolition is called  for  in  the interests of the public.  We also take into account the fact that the orders in question would not have come before Us in the normal course by way of appeal, 1006 were it not that the appellant desired that the decision  of this  Court  should  be obtained  on  certain  questions  of importance,  and  that  purpose has  been  achieved.   On  a consideration of all the circumstances, we do not think that this  is  a fit case in which we should pass  an  order  for demolition.   We  should,  however,  add  that  we  find  no justification for the strictures passed on the appellant  by the court below. In the result, the appeal is dismissed.