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1958 Supreme(Cal) 146
HIGH COURT OF CALCUTTA
N.K. SEN, J.
Sreemati Saraswati Santra - Appellant
Versus
Chairman North Barrackpore Municipality – Respondent
Decided on : May 20, 1958
Nirmal Kumar Ganguly, Saroj Chatterji, Sudhansu S.Mukherji,
The construction of a boundary wall without maintaining a clear space of 4 ft. between the building and the contiguous southern building of the neighbor is an unauthorized construction and the Municipality can order its demolition.
Headnote:
BENGAL MUNICIPAL ACT - UNAUTHORISED CONSTRUCTION - DEMOLITION - NOTICE - DOUBLE JEOPARDY - [SECTION 321 (1), 321 (2), 330] - The court held that the construction of a boundary wall without maintaining a clear space of 4 ft. between the building and the contiguous southern building of the neighbor is an unauthorized construction and the Municipality can order its demolition. The court also held that a notice under section 321 (2) and a prosecution under section 330 of the Act on the basis of that notice is valid and does not violate the principle of double jeopardy.
Fact of the Case:
The petitioner, Saraswati Santra, constructed a boundary wall without maintaining a clear space of 4 ft. between her building and the contiguous southern building of her neighbor, Janaki Bauri. The Municipality issued a notice under section 321 (2) of the Bengal Municipal Act and prosecuted the petitioner under section 330 of the Act. The Magistrate ordered the demolition of the wall.
Finding of the Court:
The court found that the petitioner had made the construction in violation of the terms and conditions laid down in the plan and that upon a consideration of all facts and circumstances he should make an order for demolition as prayed for.
Issues: 1. Whether the construction of a boundary wall without maintaining a clear space of 4 ft. between the building and the contiguous southern building of the neighbor is an unauthorized construction? 2. Whether a notice under section 321 (2) and a prosecution under section 330 of the Act on the basis of that notice is valid? 3. Whether the order of demolition violates the principle of double jeopardy?
Ratio Decidendi: 1. The court held that the construction of a boundary wall without maintaining a clear space of 4 ft. between the building and the contiguous southern building of the neighbor is an unauthorized construction because it violates the terms and conditions of the sanctioned plan. 2. The court held that a notice under section 321 (2) and a prosecution under section 330 of the Act on the basis of that notice is valid because it is a procedure provided by the Act to prevent frivolous action being taken against the ratepayer. 3. The court held that the order of demolition does not violate the principle of double jeopardy because the Magistrate may or may not pass the order according to the circumstances of a particular case.
Final Decision: The court discharged the Rule and directed the petitioners to demolish the southern wall of her building to the extent only that the demolition brings her structure in conformity with the sanctioned plan, thus keeping a 4 ft. wide space in between her building and the building of Janaki Bauri, within two months from the arrival of the records to the court below.
1. This is a Rule calling upon the District Magistrate, 24-Parganas and the Chairman, North Barrackpore Municipality to show cause why the order of Sri G. Chatterjee directing the demolition of a certain wall should not be set aside. The case of the Municipality was that the petitioner Saraswati Santra had made an unauthorised construction and completed holding no. 32, otherwise than in accordance with the conditions on which her plan was sanctioned. The unauthorised act was alleged to be not maintaining a clear space of 4 ft. in between her building and the contiguous southern building of her neighbor Janaki Bauri in spite of the notice under section 321 (1) of the Bengal Municipal Act. The Municipality has prosecuted the petitioner for violation of the terms and conditions mentioned in the plan and has also prayed for an order of demolition.
2. The petitioner Saraswati Santra has opposed the claim of the Municipality and has challenged the allegation that a clear space of four feet has not been observed. The learned Magistrate has found as a fact that the petitioner had made the construction in violation of the terms and conditions laid down in the plan and that upon a consideration of all facts and circumstances he should make an order for demolition as prayed for. Several points of law were raised in the court below and also before this court. It is urged that a boundary wall is not subject to any sanctioned plan and therefore the construction of a boundary wall does not authorise the Municipality to ask for its demolition.
This argument seems unreal. If the sanction of the Municipality be a condition precedent to the construction of any building and if any deviation from the sanctioned plan can be visited with an order of demolition, it certainly follows that whatever construction had caused this deviation may be ordered to be removed to keep the construction within the terms sanctioned in the plan. In this particular case it was the construction of the wall that had caused the violation of the terms of the plan. Clearly therefore, that part of the unauthorised construction which is responsible for this violation can be ordered to be removed.
3. It is next contended that a notice under section 321 (2) and a prosecution under section 330 of the Act on the basis of that notice does not apply to the facts of the case. This argument is difficult to understand. Section 321 (2) provides that the Chairman by a written notice should require the owner of the building either to make such alteration as may be specified in the notice or to appear before the Commissioners and show cause why such alterations should not be made. Section 321 (2) reads as follows:
"if, on making any inspection under sub-section (1) the Chairman or other person so authorised finds that the buildings inspected is being or has been erected (a) Subject to the provisions of section 329 otherwise than in accordance with the plans thereof which the commissioners have approved or (b) in such a way as to contravene any of the provisions of this Act or of Schedule VI or of any rule or by-law made in this behalf, the Chairman may, by written notice, require the owner of the building either to make such alterations as may be specified in the notice with the object of bringing the work into conformity with the said plans or provisions, as the case may be or to appear before the commissioners at a meeting and show cause why such alterations should nor be made. "
Sub-sections (3) and (4) provide for giving an opportunity to show cause and to satisfy the Municipality. Section 33 (1) (c) authorises the Municipality to take action in court only after a notice had been issued under section 321. All these precautions have been provided to prevent any frivolous action being taken. This is all to the benefit of the ratepayer. It is not contended that such a notice was not issued. This point raised on behalf of the petitioner therefore fails.
4. Another point raised is
