Court distinguishes between demolition orders under S.330 and prosecution under S.332 of the Bengal Municipal Act, affirming distinct legal remedies.

1. This reference made by the Additional Sessions Judge, Agartala, under S.438, Criminal P.C. raises the question about the interpretation of S.330 and S.332 of the Bengal Municipal Act, 1932 , hereinafter called the Act, which has been extended to the Territory of Tripura.

2. The relevant facts can be stated in a few words. The respondent Ratna Prabha raised certain building in the Palace compound at Agartala in violation of the plan approved by the Agartala Municipality. At the instance of the Municipality, Shri Nagendra Nath, its Overseer, moved the Sub-divisional Magistrate, Agartala under S.330 of the Act praying for the demolition of the unauthorised construction. That prayer was opposed by Ratna Prabha on the footing that without compliance with the provisions of S.332 the application made by Shri Nagendra Nath was not maintainable. The Sub-divisional Magistrate accepted that contention as well founded in law and so rejected the application made by the Overseer. Aggrieved by that order, the Overseer moved a revision petition in the Court of the Sessions Judge. The matter came up for hearing before the Additional Sessions Judge, Shri N.M. Paul, who by his order dated 18-2-1969 made reference to this Court recommending that the Magistrate's order should be quashed because the latter had wrongly interpreted S.332 of the Code and that the case should be remanded to him for trial according to law.

3. S.330 bears the marginal heading, "Order for demolition or alteration of buildings in certain cases." Sub-Section (1) provides inter alia that if the Commissioners are satisfied that the erection of any building has been commenced or completed in violation of the sanction given by them or the provisions of law applicable, then they "may, in addition to any prosecution that may be instituted under this Act, apply to a Magistrate and such Magistrate may make an order directing that such erection, alteration, or addition, as the case may be......" shall be demolished by the owner thereof or altered by him to the satisfaction of the Commissioners, or, in the alternative, be demolished or altered by the Commissioners at the expense of the owner. S.339 bears the marginal heading, "Institution of prosecutions for offences referred to in S.330 or S.331," and it reads as under :
"Notwithstanding anything contained in S.532 or S.533 no prosecution for an offence referred to in S.330 or S.331 shall be instituted without the order or consent of the Commissioners at a meeting and the Commissioners before passing such order or giving such consent shall give to the owner or occupier of the building an opportunity of showing cause why such prosecution should not be instituted."

4. In the opinion of the sub-divisional Magistrate, Shri Nagendra Nath had actually moved him for prosecuting Ratna Prabha for the offence described in S.330 and so the applicability of S.332 was attracted. The Additional Sessions Judge on the other hand, held that no prayer for prosecution of Ratna Prabha had been made, that S.330 defines the offences as also prescribes an alternative remedy available to the Commissioners for rectification of the violation of the Municipal laws or the sanction granted by the Commissioners in the matter of construction of buildings, and that Nagendra Nath had approached the Magistrate for help in the matter of getting over the violation by demolishing the offending structure. On careful and close study of the provisions of S.330, S.332, S.532 and S.533 of the Act, I feel satisfied that the view taken by the learned Additional Sessions Judge is sound in law and so must prevail.

5. S.330 defines the offences respecting which prosecution can be launched under S.532 or S.533 and S.332 enjoins that prosecution can