K.T. Koshi, C.J.
1. This revision is against a conviction under the Madras District Municipalities Act, 1920.
2. In January 1951 the petitioner herein, Smt. P. Kallianikutty Amma, obtained sanction from the Kozhikode Municipality to erect a building in her Ayyarkulam paramba in Ward 2 of the said Municipality. The sanction was communicated to her under date 7-1-1951 and it would appear the building was to be completed within a period of 6 months. The usual verification of the building after its construction, however, took place only in September 1955, when it was found that there was an unauthorised construction of a bath-room.
There was no provision in the approved plan for any bath-room. The Municipal Commissioner therefore issued a notice to the petitioner under date 25-9-1955 inviting her attention to the unauthorised construction of the bath-room and requesting her to submit plan and remit the necessary licence fees within 7 days of the date of receipt of this order failing which the unauthorised construction will be demolished departmentally at her cost and she will also be liable to be prosecuted without any further notice'. The said notice would seem to have reached the petitioner only on 10-11-1955 and on 16-11-1955 she sent a reply thereto stating that the bathroom was in existence some ten years before the new construction was begun, that it formed part of an old building and that the new construction was 'made in place of the demolished portion of the old building. According to her she was not therefore liable to be proceeded against under the provisions of the District Municipalities Act.
The Municipality soon instituted criminal prosecution against the petitioner for non-compliance with the request in the notice issued to her on 25-9-1955. The prosecution purported to be under Section 338 of the Madras District Municipalities Act.
3. The charge-sheet laid before the Special First Class Magistrate, Kozhikode on 1-2-1956 set out the date of offence and nature of offence as follows:
'7 days after 10-11-1855.
Failure to comply with the notice No. El-25470/50 dated 25-9-1955 served on 10-11-1955 by registered post, requiring her to take out permission for the unauthorised bath-room measuring 7' 3' x 6' 3' constructed in Ayyarkulam paramba in ward 2 of the Municipality in contravention to the approved plan and permission.'
4. Section 338 is mentioned in the charge-sheet as the section under which the petitioner was charged. The learned Special First Class Magistrate tried the case summarily, found the petitioner guilty of the offence with which she was charged and sentenced her to pay a fine of Rs. 15/- or in default to undergo simple imprisonment for one month. The revision is directed against the said conviction and sentence.
5. Shri P. C. Balakrishna Menon who appeared before me in support of the revision urged two grounds. These grounds were (1) that the prosecution was not sustainable as Section 338, which occurred in Chapter XVI of the District Municipalities Act, titled 'Procedure and Miscellaneous', had no application to the case inasmuch as there are specific provisions in the Act regulating the construction ot buildings in Municipal areas (Chapter X -- 'Building Regulations' Sections 191 to 217) and the said provisions include provisions to deal with contraventions ot the said regulations etc. and (ii) that assuming Section 338 applied, it did not authorise the Municipality to call upon a person to submit a plan and pay licence fees for any construction already made, much less to prosecute that person for failure to comply with such a notice. In my view both the grounds urged are well grounded and the revision must succeed.
6. The first ground urged in support of the petition was an attempt to apply the maximum generalia specialibus non derogant to the case. The identical question arose for decision before the Madras High Court in Mayandi Chettiar v. Madura Municipality, AIR 1941 Mad 259 (A), before Leach C. J. and Horwill J., in a second appeal arising from a suit claiming damages against the Madura Municipality for demolishing a building unauthorisedly put up by the plaintiff. The Municipality purported to act under Sections 338 and 339 of the Madras District Municipalities Act. The relevant portion of the head-note to that case may usefully be quoted here:--
'Sections 338 and 339 cannot be properly applied in the case of buildings because Section 216 specifically provides what shall be done when there is an infringement of the building regulations. Section 216 applies to a case where a person has completed a building without sanction. Therefore, except in the case of buildings, direct action may be taken under Sections 338 and 339. The completion of a building, as well as the commencement of a building, without municipal sanction are within the scope of Section 216.'
At page 261 of the report the learned Chief Justice who delivered the judgment in that case has stated as follows:
'In our opinion the maxim generalia spccialibus non derogant applies in this case. The effect of this maxim is concisely stated in Halsbury's Laws of England, Hailsham Vol. 31, P. 526 in these words :
Where in the same or a subsequent statute a particular enactment is followed by a general enactment, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment is operative, and the general enactment is taken to affect only those other parts of the particular enactment to which it may properly apply.
Section 338 cannot be properly applied here because Section 218 specifically provides what shall be done when there is an infringement of the building regulations. The fact that the word 'may' is used in Sub-section (1) of Section 216 does not leave it to the option of the executive authority to proceed under Section 216 or Section 338. In Section 338 the word is also 'may'. The executive authority may not deem it necessary to take any action, but if he docs he must proceed according to Section 216.'
7. It has already been indicated that Chapter X of the Act contained what are called Building Regulations and so long as that Chapter contained provisions as to how contraventions thereof should be dealt with, the Municipality cannot have recourse to the general provisions in Section 338 with respect to such contraventions. Pointed attention may in this context be drawn to Sections 205 and 216 occurring in Chapter X and to the penal provisions in Section 313 (Chapter XV -- 'Penalties').
It may also be mentioned that Section 338 deals with the consequences of failure to obtain licences or permissions of the council, or make registration in the Municipal Office, wherever they are necessary or for breach of the same and that Chapter XII (Sections 244 to 285) contains provisions regarding licences, permissions, etc. The question raised by the first ground is elaborately discussed in the decision cited above and without traversing the grounds covered there I hold that the Municipality was not justified in seeking to proceed against the petitioner under Section 338 for any unauthorised construction of a building or part thereof.
8. As indicated earlier I am inclined to accept the argument on the second ground as well. Section 338 reads as follows:
'If under this Act, or any rule, bye-law or regulation made under it, the licence or permission of the council or (executive authority) or registration in the municipal office is necessary for the doing of any act, and if such act is done without such licence or permission or registration, or in a manner inconsistent with the terms of any such licence or permission, then-
(a) the (executive authority) may by notice require the person so doing such act to alter, remove, or, as far as practicable, restore to its original stage the whole or any part of any property, movable or immovable, public or private, affected thereby, within a time to be specified in the notice and further,
(b) if no penalty has been specially provided in this Act for so doing such act, the person so doing it shall be liable on conviction before a Magistrate to a fine not exceeding fifty rupees for every such offence.'
9. This section does not warrant the action which the Municipality took against the petitioner to call upon her to submit a fresh plan and remit licence fees. In respect of matters coming within the purview of the first part of the section, the Executive Authority can under Clause (a) of the section call upon the offending party to have the unauthorised act removed or altered or otherwise undone. Under Clause (b) it is also open to the Executive Authority to prosecute tho offending parly for the unauthorised act, but the requisition served on the petitioner on 25-9-1955 and the prosecution launched for failure to comply with requirement of the notice, are absolutely unwarranted by the section.
The Public Prosecutor argued that the prosecution was virtually under Clause (b) for unauthorised construction but I am afraid that argument has no basis whatever. The charge-sheet, relevant portion of which has been quoted earlier, and the judgment of the lower court would give no countenance whatever to the argument. Column 6 of the relevant entry in tho register of summary trials held before the lower court sets out the offence for which trial was held as:
'Failure to comply with the notice served on. 10-11-1955 requiring her to take out permission for the unauthorised construction of the bath room -- Section 338 M. D. M. Act,'
10. Assuming therefore Section 338 could be applied to the case, the present prosecution is thoroughly unwarranted by the terms of the section,
11. The revision succeeds in the result and Iallow it setting aside the conviction and the sentence the lower court passed against the petitioner.The fine, if paid will be refunded to her.