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Nagendra Nath Vs. Sm. Ratna Prabha Das - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantNagendra Nath
RespondentSm. Ratna Prabha Das
Excerpt:
.....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. ' 4. in the opinion of the sub-divisional magistrate, shri nagendra nath bad actually moved him for prosecuting ratna prabha for the offence described in section 330 and so the applicability of section 332 was attracted. on careful and close study of the provisions of sections 330, 332, 532 and 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. x respectfully agree with the proposition enunciated by the calcutta high court as it clearly flows from plain reading of the relevant sections of..........commissioners at the expanse of the owner. section 332 bears the marginal heading, 'institution of prosecutions for offences referred to in section 330 or 8. 331.' and it reads as under: 'notwithstanding anything contained in section 532 or section 533 no prosecution for an offence referred to in section 330 or section 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 bad actually moved him for prosecuting ratna prabha for the offence described in section 330 and so the.....
Judgment:

R.S. Bindra, J.C.

1. This reference made by the Additional Sessions Judge, Agartala, Under Section 438, Criminal P.C. raises the question about the interpretation of Sections 330 and 332 of the Bengal Municipal Act, 19S2, 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 Section 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 8. 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 Section 332 of the Code and that the case should be remand to him for trial according to law.

3. Section 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 expanse of the owner. Section 332 bears the marginal heading, 'Institution of prosecutions for offences referred to in Section 330 or 8. 331.' and it reads as under: 'Notwithstanding anything contained in Section 532 or Section 533 no prosecution for an offence referred to in Section 330 or Section 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 bad actually moved him for prosecuting Ratna Prabha for the offence described in Section 330 and so the applicability of Section 332 was attracted. That Additional Sessions Judge, on the other hand, held that no prayer for prosecution of Ratna Prabha had been made, that Section 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 Sections 330, 332, 532 and 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. Section 330 defines the offences respecting which prosecution can be launched Under Section 532 or Section 533 and Section 332 enjoins that prosecution can be launched only after taking an order or consent of the Commissioners. It is also provided in Section 332 that the Commissioners can sanction the prosecution after giving the owner or occupier of the offending building an opportunity of showing cause such prosecution should not be instituted. Section 533 prescribes that no prosecution for an offence under the Act or any rule or by-law made in pursuance thereof shall be instituted without the order or consent of the Commissioners, and that no such prosecution shall be instituted except within Six months next after the commission of such offence, unless the offence is continuous in its nature, in which case a prosecution may be instituted within six months of the date on which the commission or existence of the offence was first brought to the notice of the Chairman. It would be evident from the provisions of Sections 330, 332 and 533 that they relate to the commission of the offences and the prosecution of the offenders. However, Section 330, in addition, provides the Municipal Commissioners with an alternative remedy for meeting the situation created by unauthorized constructions, it being that the Commissioners can more the Magistrate for an order directing the offending construction to be either demolished or suitably altered. This remedy is quite distinct from the remedy of prosecution of the persons who offend the Municipal rules and directions respecting the construction of building within the Municipal area. Section 332 which requires an opportunity being furnished to the owner or occupier of the offending building before his prosecution for an offence is launched has no applicability when the alternative remedy provided by Section 330 is availed of by the Commissioners. The provisions of 8. 332 come into play only when the Commissioners contemplate prosecuting the offender in a Court of law for the offences described in Section 330. An application made to a Magistrate Under Section 330 for demolition or alteration of the offending building does not amount to prosecution of the person concerned for the offences defined in that section. The two remedies, one of prosecuting the culprit and the other of demolition or iteration of the building, are quite distinct, there being nothing common between them except the fact that the building had been set up in violation of the law or sanction given. Consequently, if the Commissioner want to pursue the alternative remedy of demolition of the building raised without taking sanction or getting it altered to correspond with the sanctioned construction, they are not bound to follow the procedure prescribed by Section 332,

6. The matter in controversy is not res integra. In the case Ram Kumar v. Bhatpara Municipality : AIR1951Cal311 , it was held that the order of removal of unauthorised structure provided in Section 330 of the Act is quite a distinct order from a prosecution contemplated by Sections 330, 500 and 501. The High Court observed further that the Act makes in Section 330 a clear distinction between an application male to the Magistrate for an order of removal and a prosecution which may take place respecting the same matter. X respectfully agree with the proposition enunciated by the Calcutta High Court as it clearly flows from plain reading of the relevant sections of the Act.

7. As a result, I accept the recommendation made by the Additional Sessions Judge and on quashing the Sub-divisional Magistrate's order dated 12.4-1965 remand the case to him with the direction that he should proceed with it in accordance with the provisions of law.


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