Back
1951 Supreme(Cal) 159
HIGH COURT OF CALCUTTA
CHAKRABARTI, DAS GUPTA
DHANAPATI DEVI - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
Criminal Revn. 999 Of 1950
Decided On : JUNE 13, 1951
MONMOHAN MUKHERJI, NALIN CHANDRA BANERJI
Proceedings under Section 363 of the Calcutta Municipal Act for the erection of an unauthorized structure are not criminal proceedings in the strict sense of the term. They do not involve any offense and the person proceeded against is not an accused person.
Headnote:
CALCUTTA MUNICIPAL ACT - SECTION 363 - DEMOLITION ORDER - PROCEDURE - NOTICE TO THE PARTY - DISCRETION OF THE MAGISTRATE - WITHDRAWAL OF PREVIOUS PROCEEDING - EFFECT - SECTION 248, CRIMINAL PROCEDURE CODE - APPLICABILITY.
Fact of the Case:
The petitioner, Dhanapati Debi, constructed two rooms and a staircase on the fourth storey of her building without obtaining the necessary sanction from the Corporation. The Corporation served a notice under Section 365 of the Calcutta Municipal Act and initiated a proceeding under Section 363 for demolition of the unauthorized structures. The petitioner attended a meeting of the Building Committee of the Corporation, where it was decided to withdraw the proceeding and start a fresh one. The petitioner claimed that she was not given an opportunity to be heard before the institution of the fresh proceeding and that the withdrawal of the previous proceeding amounted to an acquittal, barring the second proceeding under Section 403, Criminal Procedure Code.
Finding of the Court:
1. The petitioner was given proper notice of the meeting of the Building Committee and had an opportunity to be heard. 2. The magistrate properly exercised his discretion in making the demolition order, considering the effect of the unauthorized structures on sanitation and ventilation. 3. The withdrawal of the previous proceeding did not operate as an acquittal, as no order of acquittal was passed by the magistrate. 4. Section 248, Criminal Procedure Code, which provides for withdrawal of complaints and acquittal of the accused, is not applicable to proceedings under Section 363 of the Calcutta Municipal Act, as the infringement dealt with by the magistrate is not an offense.
Issues: 1. Whether the petitioner was given an opportunity to be heard before the institution of the fresh proceeding under Section 363 of the Calcutta Municipal Act. 2. Whether the magistrate properly exercised his discretion in making the demolition order. 3. Whether the withdrawal of the previous proceeding amounted to an acquittal, barring the second proceeding under Section 403, Criminal Procedure Code.
Ratio Decidendi: 1. The presumption under Sections 16 and 114 illustration (f) of the Indian Evidence Act, as interpreted by decided cases, is that the petitioner received the notice sent by the Corporation. The petitioner's husband's testimony alone is insufficient to rebut this presumption. 2. The magistrate considered the effect of the unauthorized structures on sanitation and ventilation and balanced the expenditure incurred by the petitioner against the detriment to the sanitation of the place. He properly exercised his discretion in making the demolition order. 3. Section 248, Criminal Procedure Code, is not applicable to proceedings under Section 363 of the Calcutta Municipal Act, as the infringement dealt with by the magistrate is not an offense. The withdrawal of the previous proceeding did not operate as an acquittal, as no order of acquittal was passed by the magistrate.
Final Decision: The Rule is discharged. The interim order stands automatically vacated. The unauthorized structures complained of are to be demolished by the Corporation at the expense of the owner within two months from the date of the judgment.
( 1 ) THIS Rule is directed against an order dated 7-10-1950 passed by the learned Municipal Magistrate, Calcutta whereby he ordered the demolition of certain unauthorised structures erected by the petitioner. The Rule is an open Rule, but of the seven grounds mentioned in the petition, Mr. Banerjee, who appeared for the petitioner urged only three.
( 2 ) THE facts are as follows: The petitioner Dhanapati Debi is the wife of one Banwarilal Rajghorja and the owner of premises No. 10/2 Syed Sally Lane, Calcutta. In or about February 1945 she became desirous of making certain additions to the fourth storey of the building and applied to the Corporation for the necessary sanction. The additions she proposed to make were two rooms in the. fourth storey and a stair case leading from the third storey to the fourth. No sanction was given. On 4-7-1946, a Building Inspector of the Corporation visited the premises, apparently on receipt of some information, and discovered that construction of walls preparatory to the erection of two rooms was proceeding. He immediately caused, a notice under Section 365 of the Calcutta Municipal Act to be served. There is some dispute as regards the manner in which that notice was served, but since nothing turns on that notice, I need not tarry to mention the details of that controversy. In due course, the matter was taken up by the Building Committee of the Corporation and was brought up at a meeting held on 23-12-1947. The petitioner was duly informed of that meeting and a representative of hers attended. It was decided at the meeting that an application under Section 363 of the Calcutta Municipal Act should be made for securing a demolition order and in accordance with that decision, a proceeding was instituted. While that proceeding was pending in the Magistrate's Court, the matter came to be considered once again by the Building Committee, as it seems to have been thought that some irregularity had crept in which made the continuance of the proceeding then pending, inadvisable. Accordingly, another meeting of the Building Committee wag held on 28-6-1949 and at that meeting it was decided to withdraw the proceeding that was pending and start a fresh one. It appears from the Minutes of the meeting which have been exhibited in the case that the irregularity, which weighed on the members of the committee in deciding to withdraw the proceeding that was then pending, was that the name in which the person guilty of the alleged unauthorised construction was being proceeded against, was not the correct name. The petitioner's case is that she received no information of the meeting that was held on 28-6-1949 and accordingly got no opportunity to represent what she had to say against the proposed demolition. It appears that in pursuance of the resolution adopted by the Building Committee at its meeting of the 28th of June, an application was made to the Magistrate on 14-2-1950 for the withdrawal of the proceeding then pending and then on the same day a fresh proceeding was instituted. It will be seen from the dates which I have given that about eight months elapsed between the date on which the Corporation decided to institute a fresh proceeding and the date on which such proceeding came actually to be instituted a not very impressive example of expedition with which public business is transacted by the Corporation.
( 3 ) I may add that in the meantime, in spite of the notice under Section 365 and the proceeding instituted under Section 363 the petitioner completed the unauthorised constructions.
( 4 ) THE Corporation examined four witnesses before the Magistrate while the petitioner examined only her husband. The learned Magistrate, upon a consideration of the oral and documentary evidence adduced before him, came to the conclusion that the Corporation had made out a case for demolition and accordingly he made the order that is complained against.
( 5 ) I have already stated that only thr
