1955 Supreme(SC) 106

SUPREME COURT OF INDIA
17th November, 1955
VENKATARAMA AYYAR AND IMAM, JJ.
Corporation of Calcutta, Appellant
Versus
Mulchand Agarwala, Respondent.
Criminal Appeal No. 60 of 1954.
Advocates appeared
Mr. N. C. Chatterji, Senior Advocate (Mr. S. K. Bose and Mr. Sukumar Ghose, Advocate, with him), for Appellant, Mr. G. P. Kar Senior Advocate (Mr. A. K. Mukherjee and Mr. D. N. Mukherjee, Advocates, with him), for Respondent.

Headnote:Calcutta Municipal Act, 1923, Sections 363, 365, 488, 493, 536 - Interpretation-Construction of building without permission of Corporation - Discretion of Magistrate to order demolition -In which cases to be exercised- Interference by the appellate Court is exercise of discretion-Pr~nciples-Delay in demolitionEffect. Corporation not applying for demolition in the first instance -Principles of constructive res judicata not applicable for subsequent application.

       On 28th October, 1950, the Corporation of Calcutta discovered that the respondent was putting up new masonry structure on the fifth storey of his house without necessary sanction. A notice under section 365 of the Calcutta Municipal Act, 1923 was immediately served on him directing him to stop forthwith further constructions pending an application to the Magistrate. under Section 362 of the Act. On 13th December, 1950 the appellant Calcutta Corporation lodged a complaint before the Magistrate under Section 488 read with Rule 62 of Schedule XVII of the Act charging the respondent with constructing two rooms in the 5th storey without obtaining permission.! The respondent pleaded guilty, and was fined Rs. 2001-.

       While the proceedings under Section 488 of the Act were pending before the Magistrate Corporation on examination found that the construction put up by the respondent contravened Rules 3, 14,25 and 32 of Schedule XVII and moved the Court on 4th April, 1951 for an order under Section 363. The Magistrate dismissed the petition on the ground 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 construction being on 5th storey could not obstruct light and air and thereby inconvenience to the neighbours, and that there was no complaint from the residents of the locality, and that as the respondent had already been fined in proceedings under Section 488, an order for demolition would be to penalise him, twice over for the same offence. A revision to the High Court against the order of the Magistrate was dismissed. Leave for appeal under Art. 134(1)(c) was granted, as it was considered that two questions of general importance arose on which it was desired to have the decision of the Supreme Court. vi-e-. (1) Whether the Corporation was precluded from taking proceedings 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.

       Held: (1) The proceedings under Sections 363 and 493 are mutually exclusive. But a prosecution under section 488 for breach of Rule 62 of schedule XVII is not a prosecution under section 493(a) of the Act, and proceedings under Section 488 are not in substance the same as proceedings under section 493, and consequently proceedings taken under section 488 read with Rule 62 [of Schedule XVII do not bar proceedings under Section 363.

       (2) It is doubtful whether the Corporation could apply for a demolition order, when instituting an application under Section 488 for breach of Rule 62 of Schedule XVII. What Rule 62 prohibits is the erection of a building without permission and under that rule, the breach

       1.Section 488(1) of the Act enacts that whoever commits any offence by contraveniDg any provisions of any of the sections or rules of the Act, mentioned in the first column of the table annexed thereof 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 sanction of the same. 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. Under Section 363, an application for an order for demolition can be made on three grounds, vi,;:;. (I) that the erection of the 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 Rules. But there is this difference between an application based on ground No. 1 aforesaid and one forwarded on grounds Nos. 2 and 3 that while a question of demolition cannot arise with reference to the construction without permission, 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, whereas in the 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.

       (3) Even if the Magistrate had the power under section 536 to order demolition of the building, it cannot be held that the Corporation 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 Corporation for claiming relief under Section 363.

       Section 363 does give the Magistrate a discretion whether he should or should not pass an order of demolition.1

       The question is whether the exercise of that discretion by the Courts below is open to review by the Supreme 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. On the facts of the case, the orders of the courts below are based on mistakes and misdirections, and cannot be supported.

       (5) After lapse of five years it will not be in the interest of the public to make an order for demolition, though Section 363(2) does not apply to the present case. - Article 134-lnterference by Supreme Court with exercise of discretion by a competent authority.

       See under "Calcutta Municipal Act, 1923" at p. 176 ante. - Sections 403, 429 and 539-Interference by Supreme Court with exercise of discretion by a competent authority - Calcutta Municipal Act, 1923, Ss. 363 and 488. - Section II-Constructive res judicata.

       Held :3. Even if the Calcutta Corporation does not ask for the demolition of the building in the proceeding taken by it under S. 488 of the Calcutta Municipal Act, 1923, and is content with the imposition of fine, it is not precluded from claiming that relief under S. 363 of the Act. There is no question of the application of any principle of

       1.A will.

       2.A.I.R. 1919 P.C. 27 : 50 I.C. 812.

       3.For facts of the case, see pp. 177, 178 ante constructive res judicata and there is nothing in the statute which bars the Corporation from claiming relief under S. 363 of the Act.