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PETITIONER: NANI GOPAL BISWAS

       Vs.

RESPONDENT: THE MUNICIPALITY OF HOWRAH

DATE OF JUDGMENT: 29/10/1957

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. BOSE, VIVIAN

CITATION:  1958 AIR  141            1958 SCR  774

ACT:        Municipal     Law--Encroachment    caused    by     compound        wall--Structure  not part of main building-Notice to  remove        encroachment headed by wrong Provision of the Municipal Act-        Conviction    under   different    section-Legality-Calcutta        Municipal  Act,  1923 (Bengal III Of  1923),  SS.  299,,300,        488(1)(c).

HEADNOTE:        The  appellant  was convicted by  the  Municipal  Magistrate        under  s. 488, read with s. 299, of the  Calcutta  Municipal        Act,  1923,  and  sentenced to pay a fine  of  Rs.  75,  for        failure to carry out within the specified time the terms  of        a notice served on him under S. 299 of the Act to remove the        encroachment  caused by a compound wall upon  the  road-side        land of the Municipality.  Since the offending structure was        a compound wall and not something which was part and  parcel        of the main building, the offence comes under s. 300 and not        s.  299,  read with s. 488 Of the Act.  The High  Court,  in        revision,  found  that the accused was fully  aware  of  the        nature  of the accusation against him and that there was  no        prejudice  caused to him by the wrong mention of s.  299  in        the  notice in place Of S. 300.  It accordingly altered  the        conviction  into  one under s. 488, read with  S.  300,  and        reduced  the  amount of fine to Rs. 5o as  required  by  the        section.   On appeal to the Supreme Court it  was  contended        for  the appellant that the conviction was bad  because  (1)        the  notice having been headed as under s. 299 of  the  Act,        the conviction under S. 300 was illegal, (2) the requisition        had  not  been  lawfully  made  within  the  meaning  Of  s.        488(1)(c),  and (3) there was substantial prejudice  to  the        appellant  inasmuch as if the conviction were under  s.  299        and        775        not S. 300, read with s. 488, he might have been entitled to        claim compensation :        Held,  that the effective part of the notice made  it  clear        that  the requisition, which was to remove the  encroachment        caused  by  the compound wall, was lawfully made,  that  the        alteration  of the conviction under S. 299 to one  under  s.        300 would not make it illegal and that, on the facts,  there        was no prejudice.

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      Begu v. The King-Emperor, L.R. 52 I.A. 191, relied on.

JUDGMENT:        CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 60  of        1955.        Appeal  from the judgment and order dated the 2nd  February,        1955,  of the Calcutta High Court in Criminal  Revision  No.        1113 of 1954, against the judgment and order dated the  14th        November,  1953, of the Court of the Sessions Judge,  Howrah        in  Criminal  Appeal  No. 185 of 1953, arising  out  of  the        judgment  and  order dated the 8th September, 1953,  of  the        Municipal  Magistrate,  Second Class, Howrah,  in  Case  No.        1407C/1952.        Sukumar Ghose, for the appellant.        B. Sen and P. K. Ghosh (for P. K. Bose), for the respondent        1957.  October 29.  The following Judgment of the Court  was        delivered by        SINHA J.-This appeal on a certificate of fitness granted  by        the  Calcutta  High  Court under Art. 134  (1)  (c)  of  the        Constitution, is directed against the judgment and order  of        a  Single  Judge of that Court in  its  criminal  revisional        jurisdiction,  convicting the appellant under s. 488/300  of        the Calcutta Municipal Act, 1923 (which will hereinafter  be        referred to as the Act), and sentencing him to a fine of Rs.        50,  in  substitution of the order of  conviction  under  s.        488/299 of the Act, of a fine of Rs. 75, passed by the lower        courts.        The  facts found by the courts below which are necessary  to        be  stated for the purpose of this appeal, are  as  follows:        The  appellant  who is the owner of the premises  No.  10/3,        Swarnamoyee  Road, Howrah, encroached upon an area of 57’  x        3’ of the road-side land of the Howrah Municipality to which        the        776        provisions  of  the Act have been extended.  A  notice,  the        terms  of which we shall set out hereinafter, was served  on        the  appellant to remove the encroachment aforesaid, and  as        he  failed to carry out the terms of the notice  within  the        specified  time, the prosecution leading up to this  appeal,        was  instituted before the magistrate who, under s. 531,  is        called ’Municipal Magistrate’.  The Municipal Magistrate who        tried  the appellant in the first instance,  convicted  him,        but  on appeal, the learned Sessions Judge acquitted him  on        the  ground  that the prosecution had been  launched  beyond        three  months which was the prescribed period of  limitation        under  s. 534 of the Act.  The Municipality moved  the  High        Court  of  Calcutta  in its revisional  jurisdiction  and  a        Division  Bench of that Court (J.  P. Mitter and S.  K.  Sen        JJ.),  set  aside the order of acquittal  and  directed  the        appeal  to  be re-heard, after giving  the  Municipality  an        opportunity of formally bringing on record certain  official        documents  showing  the  date  of  the  institution  of  the        complaint.  The relevant documents were proved and exhibited        on  behalf of the prosecution in the Sessions Court and  the        learned  Additional Sessions Judge confirmed the  conviction        and the sentence, and dismissed the appeal.  Thereupon,  the        appellant   moved   the  High  Court   in   its   revisional        jurisdiction.   His  application in revision was  heard  and        disposed of by P.N. Mukherjee J. by his order dated February        2, 1955, which is the subject-matter of this appeal.  Before        him, the appellant as petitioner, urged at the forefront  of        the  arguments, the question of limitation, and the  learned        Judge  took  the view that the matter was now  concluded  in

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      view  of what had taken place in the High Court and  in  the        court of Session in pursuance of the order of remand  passed        by  the  High  Court.  The learned  Judge  agreed  with  the        appellate court that the complaint was not barred.  The High        Court also agreed with the lower courts on their findings on        the merits, that is to say, it affirmed the finding that the        appellant  had  encroached upon the road-side  land  of  the        Municipality.   The High Court accepted the argument  raised        on behalf of the appellant that on the facts found,  namely,        that the        777        offending  structure was a compound wall and  not  something        which  was  a  part and parcel of  the  main  building,  the        offence  if  any, would come under s. 300, and not  s.  299,        read  with s. 488 of the Act.  The High Court  further  took        the  view that as the accused was fully aware of the  nature        of  the  accusation  against him, it  would  not  cause  any        prejudice  to  him if the conviction and the  sentence  were        altered  into  those under s. 300, read with s. 488  of  the        Act, the sentence being reduced to the statutory limit of 50        rupees.  The appellant moved the High Court and obtained the        necessary  certificate from the Bench presided over  by  the        learned  Chief  Justice  who observed,  while  granting  the        certificate:  "It  seems to me to be arguable  and  arguable        with some force that such alteration of the conviction could        not  possibly be correct in law......... It would  therefore        be  arguable  that a notice under section 299  to  remove  a        compound  wall  unattached to any building could  not  be  a        notice  ’lawfully  given’ or a requisition  ’lawfully  made’        within  the  meaning of section 488(1)(c)  of  the  Calcutta        Municipal  Act, 1923.  It appears to me that the  alteration        of the conviction by this Court does raise a question of law        which  makes the case a fit case for further appeal  to  the        Supreme Court."        In  this  Court, the learned counsel for the  appellant  has        placed  at  the  forefront  of  his  arugments  the   points        suggested  in  the portion of the  learned  Chief  Justice’s        order quoted above, but in our opinion, there is  absolutely        no  substance in those contentions.  The alteration  of  the        conviction  from s. 299 to s. 300, read with s. 488  of  the        Act,  was no alteration in the substance of  the  accusation        but  only  in the section more properly  applicable  to  the        facts  found.   A similar question was raised  before  their        Lordships of the Judicial Committee of the Privy Council  in        the  case  of Begu v. The King-Emperor (1).  It  was  argued        before their Lordships that the conviction of the appellants        before  the  Judicial Committee under s. 201,  Indian  Penal        Code,  without  a charge under that section, was  a  serious        departure  from  the  procedure laid down  in  the  Code  of        Criminal Procedure.  In that        778        case  the initial conviction was for murder under s. 302  of        the Indian Penal Code, but the High Court had set aside that        conviction and substituted a conviction under the lesser  s.        201.  After discussing the provisions of ss. 236 and 237  of        the  Code  of Criminal Procedure, their Lordships  made  the        following   observations  which  fully  cover  the   present        controversy        "  A man may be convicted of an offence, although there  has        been no charge in respect of it, if the evidence is such  as        to establish a charge that might have been made."        It  will  be  noticed  that in the  case  before  the  Privy        Council,  the  alteration  was not only in  respect  of  the        section but also of the substance of the accusation, but  as        the  lesser offence under s. 201, had been made out  by  the

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      evidence  led  on  behalf  of  the  prosecution  which   was        primarily  for an offence of murder, their  Lordships  ruled        that  ss.  236  and 237 of the Code  of  Criminal  Procedure        authorize the Court to alter the conviction and the sentence        to  be  passed  in respect of the offence made  out  in  the        evidence.   In  the case in hand, it is  manifest  that  the        facts  sought  to be proved and found by  the  courts  below        remained   the  same  even  after  the  alteration  of   the        conviction  from s. 299 to s. 300, read with s. 488  of  the        Act.  There was, therefore, no illegality in the  alteration        of the conviction under one section to the other.        It was next argued that the notice served upon the appellant        was not lawful within the meaning of s. 488(1)(c)   of   the        Act, which runs as follows:        488(1) Whoever commits any offence by        (a).........................................................        (b).........................................................        (c)  failing to comply with any direction lawfully given  to        him  or any requisition lawfully made upon him under any  of        the said sections, sub-sections, clauses, provisos or rules,        shall  be  punished..................................."        The substantive portion of the notice is in these terms:        "Take  notice that you are hereby required by the  Municipal        Commissioners of Howrah, within        779        thirty  days  from  the date of service of  this  notice  to        remove the encroachment caused by a compound wall  measuring        57’-0"  x 3’-0" upon Swarnamoyee Road attached  to  premises        No.  10/3 and that in default, the provisions of  the  above        Act will be enforced."        This notice is headed as under s. 299 of the Act.  It is  no        -more in controversy, as found by the courts below, that the        offending  part  of the structure comes under s.  300  which        refers to a wall, etc., not being a portion of a building or        fixture, as contemplated in s. 299.  The contention now  has        narrowed down to this that the notice having been headed  as        under  s.  299 of the Act, the conviction under  s.  300  is        illegal, because, it is further argued, the requisition  had        not  been ’lawfully made’.  According to this argument,  the        requisition  would have been ’lawfully made’, if the  notice        had been headed as under s. 300.  Hence, the label given  to        the  notice makes all the difference between  a  requisition        ’lawfully  made’  and  a requisition not so  made.   In  our        opinion, this argument has only to be stated to be rejected.        It is the substance and not the form of the notice that  has        to  be  regarded.  The effective part of the  notice  quoted        above, leaves no doubt in the mind of the parties  concerned        that the requisition is to remove the encroachment caused by        the  compound wall.  As it has not been contended  that  the        appellant  had  not received the notice, and  it  is  common        ground  that the appellant had not carried out the terms  of        the  notice,  there  cannot  be the  least  doubt  that  the        appellant has incurred the penalty under s. 488(1)(c),  read        with   s.   300.    It  must,  therefore,   be   held   that        notwithstanding   the  label  given  to  the   notice,   the        requisition  bad  been lawfully made in the sense  that  the        appellant had made the encroachment complained of, and  that        the Municipality was entitled to call upon him to remove the        encroachment.   The  appellant was bound to  carry  out  the        terms  of  the  requisition, and  as  he  admittedly  failed        therein, he had incurred the penalty of the law.        It   was  next  sought  to  be  contended  that  there   was        substantial prejudice to the appellant inasmuch as if        99        780

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      the conviction were under s. 299 and not s. 300, read   with        s.  488,  he may have been entitled to  claim  compensation.        There are several answers to this contention.  In the  first        instance,  he  himself invited the High Court  to  interfere        with the order of conviction passed by the lower courts.  If        the High Court has set right the technical defect, as it was        bound to do when the matter had been brought to its  notice,        the  appellant  has no just grievance, keeping in  view  the        fact that the amount of fine has been reduced as a result of        the  alteration  in the section.  Secondly, if  he  has  any        rights  to claim compensation in a civil court the  judgment        and  order of the criminal court is wholly  irrelevant;  and        thirdly,   the   prejudice  must  have  reference   to   any        irregularity  in  the trial of the case.  It  has  not  been        shown that the appellant had, in any way, been prejudiced in        the  trial of the case as a result of the alteration in  the        section,  that  is  to say, that he  was  deprived  of  some        opportunity  to make a proper defence to the prosecution  if        the  right  section had been named in the notice or  in  the        charge,  if any.  Nor has he been able to show that  he  was        misled as a result of any such technical error.        Lastly,  it was sought to be made out that  the  prosecution        itself was beyond time.  This contention was attempted to be        made good with reference to the additional evidence  adduced        at  the appellate stage as a result of the direction of  the        High  Court  when  the  case came before  it  on  the  first        occasion,  as mentioned above.  In our opinion, there is  no        substance  in this contention because as pointed out by  the        learned  Additional Sessions Judge, the additional  evidence        placed   before  the  Court  puts  the  matter  beyond   all        reasonable doubt that the complaint had been lodged in  time        before the relevant authority.        In view of these considerations, it must be held that  there        is no merit in this appeal.  It is, accordingly, dismissed.        Appeal dismissed.        781