Skip to content


Hrishikesh Dutt Vs. Municipal Commissioner - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal292
AppellantHrishikesh Dutt
RespondentMunicipal Commissioner
Excerpt:
- .....that it had not been established that the petitioner hrishikesh dutt had violated any of the building rules under the municipal act. he held however that the petitioner had disobeyed the notice which was served on him under section 365(1) of the act for the purpose of prohibiting him from proceeding with the building work and, in these circumstances, the learned magistrate found him guilty under section 365 read with section 488 of the act and sentenced him to pay a fine of rs. 60 with costs amounting to rs. 3-12-0, or, in default to suffer simple imprisonment for' one month. on behalf of the petitioner it has been urged in this case that his conviction is illegal as the order which was issued against him on 19th february 1939 under section 365(1) of the act cannot be regarded as a.....
Judgment:
ORDER

Edgley, J.

1. This rule is directed against the order of the Police Magistrate of Howrah, dated 20th December 1939 under which he convicted the petitioner, Hrishikesh Dutt, of an offence under Section 365(1), Calcutta Municipal Act, as extended to Howrah, read with Section 488 of the Act. The case for the prosecution was to the effect that the petitioner had been directed by the municipal authorities on 19th February 1939 to cease work in connexion with the construction of a verandah which he was building to the south of his premises situated at 65, Lakshman Das Lane, Howrah. The petitioner ignored this notice and continued the building operations with the result that he was prosecuted as stated above. The petitioner's main contentions before the learned Magistrate seem to have been that he did not violate any of the building regulations of the Municipality and that, in any event, inasmuch as the Commissioners had passed no orders with reference to his application to erect the building, which was submitted to them on 15th February 1938 he was entitled to assume that the requisite written permission had been granted to him having regard to the provisions of Rules 57 and 58 of Schedule 17 annexed to the Act.

2. The learned Magistrate came to a finding of fact to the effect that it had not been established that the petitioner Hrishikesh Dutt had violated any of the building rules under the Municipal Act. He held however that the petitioner had disobeyed the notice which was served on him under Section 365(1) of the Act for the purpose of prohibiting him from proceeding with the building work and, in these circumstances, the learned Magistrate found him guilty under Section 365 read with Section 488 of the Act and sentenced him to pay a fine of Rs. 60 with costs amounting to Rs. 3-12-0, or, in default to suffer simple imprisonment for' one month. On behalf of the petitioner it has been urged in this case that his conviction is illegal as the order which was issued against him on 19th February 1939 under Section 365(1) of the Act cannot be regarded as a valid order because an order of this nature can only be issued in circumstances to which reference is made in Section 363 of the Act. With reference to this Section it is pointed out that, in view of the finding of fact at which the learned Magistrate arrived with regard to the alleged non-compliance with the building rules, the petitioner could only be convicted under Section 361 read with Section 488 of the Act if he had proceeded with his building operations without having obtained the written permission of the Municipality. In this connexion it is, however, argued that, as the Municipality passed no orders with reference to the petitioner's application within 15 days of the receipt thereof, be became entitled to the benefit of the presumption raised in Rule 58 of Schedule 17 of the Act, under which it is provided that:

If within the period prescribed by Rule 57, the Commissioners have neither granted nor refused to grant permission to execute any work, such permission shall be deemed to have been granted.

3. The main point for consideration, therefore, in connexion with this matter is whether, having regard to the presumption raised by Rule 58, the order in respect of which the petitioner has been prosecuted can be regarded as a valid order. At this stage it will be convenient to mention certain admitted facts connected with the proceedings relating to this case. Prior to the submission to the Municipality of his application, dated 15th February 1938, some difficulties had occurred between the petitioner and the Municipality in connexion with the erection of the new premises at 65 Lakshman Das Lane, Howrah, more particularly in connexion with construction of a privy. It would appear that thereafter the petitioner, on 15th February 1938, applied to the Municipality for formal permission to erect certain new buildings at the above-mentioned address and with this application he submitted plans as required by Rule 52 of Schedule 17. The application had no connexion with the privy with regard to which difficulties had occurred previously, but the plans included specifications for the erection of verandahs to the north and south of the new building. After receipt of the application ia the municipal office, orders were passed on 18th February 1938 to the effect that the petitioner should be asked to expose the foundations of the building in order that they might be inspected. This requisition appears to have been duly issued and the municipal authorities were informed on 22nd February 1938 that the foundations were ready for inspection. The inspection took place on 24th February 1938. A further inspection took place on 12th March and, on 23rd March 1938, the petitioner was informed that his application, dated 15th February 1938, could not be granted on account of certain objections which were set forth in detail in the Commissioner's letter. In the beginning of the following year, namely on 10th January 1939, the petitioner's case came before the Building Committee of the Howrah Municipality, but it appears that, in spite of the refusal contained in the Commissioners letter dated 23rd March 1938, the petitioner continued building operations with the result that a notice under Section 365(1) of the Act was served on him on 19th February 1939, and as stated above, it has been found by the learned Magistrate that he violated this order.

4. The question whether or not the petitioner has been properly convicted depends to a very large extent upon the correct interpretation of Rules 56 and 57 of Schedule 17, Rule 56 is the main rule which indicates the procedure which should be adopted by the Commissioners on the receipt of a building application under Rule 52, and Rule 57 lays down the conditions under which the Commissioners may grant or refuse permission in connexion with these applications. The general scheme of the rules relating to this matter, which are set forth in Schedule 17 to the Act is to the effect that, as soon as an application under Rule 52 is received by the Commissioners, it should be carefully examined in order that it may be ascertained at the earliest possible date whether (a) any further information is required with reference to the application, or (b) it is necessary to formulate objections to the applications, which may be taken thereto on account of any prima facie non-compliance with the building rules. In this connexion, it is provided by Rule 56(1) that all information and documents which it may be found necessary to require and all objections which it may be found necessary to make before deciding whether permission to erect a new building should be given, shall be respectively required and made in one requisition and the applicant shall be apprised thereof at the earliest possible date.

5. It is argued by Mr. Basu that Sub-rule 56(1) should be read separately from the remaining sub-rules of Rule 56 for the purpose of conferring upon the Commissioners a general residuary power to issue requisitions at any time when they may require further information to enable them to reach a decision. The learned advocate therefore contends that recourse may be had to this sub-rule for the purpose of making these requisitions even after the procedure laid down in the remaining sub-rules of Rule 56 has been exhausted. With this contention I am unable to agree. In my view, Sub-rule (1) is clearly intended to be read with the remaining sub-rules of Rule 56 for the purpose of prescribing certain general conditions which must govern all requisitions and objections which it may be found necessary to make in connexion with applications for the erection of new buildings. In order that the applicant may not be unduly harassed the rule enjoins that only one initial requisition shall issue (of which the applicant shall be apprised at the earliest possible moment) and that this requisition shall mention all the points on which further information and documents are required and all objections which the Commissioner may find it necessary to formulate. It is also provided that any such requisition which it may be necessary to make must be issued within fifteen working clays after the receipt of the application under Rule 52 for permission to execute the work.

6. Thereafter, the subsequent procedure in respect of requisitions for information and documents differs slightly from that which has been prescribed in the case of objections. It is only if the information or documents furnished in connexion with a requisition are, in the opinion of the Commissioners, incomplete or defective, that under Sub-rule (3), within fifteen working days after the receipt of this defective information, they may require further information or documents to be furnished. If the party from whom information is sought fails to furnish it within three months it is provided by Sub-rule (4) that his application should be refused. After the receipt of the information it must of course be considered by the Commissioners but, in view of the provisions of Rule 57(1), the Commissioners must make up their minds within fifteen days after the receipt of any information or documents or further information or documents, which may be requisitioned under R 56, whether they are prepared to grant or refuse permission to erect the building in respect of which the application has been made. If they fail to issue a written order in the terms of the latter part of Rule 57(1) within the abovementioned period, it is provided by Rule 58 that the requisite permission shall be deemed to have been granted.

7. As regards objections which the Commissioners may wish to take with regard to an application under Rule 52, the procedure to be followed is to some extent similar to that which has been prescribed in cases in which further information is required by the Commissioners. For instance, it has been provided in Rule 56 that such objections must be taken not later than a date within fifteen days of the receipt of the application. If such objections are taken, but there is no compliance on the part of the applicant with the requisition within three months, the Commissioners are empowerd to refuse the application. It would appear however that the applicant is at liberty at any time within three months of the date of the requisition to show cause against any objection which may have been put forward and it will then be the function of the Commissioners to decide whether they have been satisfied or not with reference to the objection. No precise period has been prescribed by the rules within which the Commissioners must come to a formal decision as to the validity of the objection after cause has been shown by the applicant, but it is clear from the provisions of Rule 57(1) that, if the Commissioners wish to grant permission conditionally or unconditionally to execute the work or decide to refuse to grant the permission, they must issue a written order to this effect within fifteen days of the date of their decision. On failure to issue such order within the prescribed period the petitioner will be deemed under Rule 58 to have obtained the requisite written permission to erect his building.

8. If it is not found necessary to call for any further information or documents or to formulate any objections, the written order to which reference is made in the latter part of Rule 57(1) must issue within fifteen days after the receipt of the application under Rule 52. In this connexion, it is argued by Mr. Basu that the period of fifteen days which is prescribed by Rule 57 must refer to working days. With this contention I agree. Under Rule 56 the Commissioners are allowed a period of fifteen working days after the receipt of the application, within which they may call for information or formulate objections, and it cannot therefore have been the intention of the Legislature that the presumption raised by Rule 58 should arise before the last day allowed to them for the purpose of issuing the necessary requisitions. It follows therefore that the period of 15 days mentioned in Rule 57 must be used as meaning 'working days' in the same sense in which this expression has been used in Rule 56. Rule 57 contains no express provision on the point whether the order of the Commissioners, in order to be valid, must be communicated to the petitioner, but having regard to the particular emphasis which is laid on the expression 'grant permission' in Rules 57 and 58 it Would appear to have been the intention of the framers of the rules that as soon as the Commissioners have come to a decision on this point, their order must be communicated to the petitioner and the presumption raised under Rule 58 will become operative if the order is not communicated to the applicant within fifteen working days of the date of the decision.

9. In connexion with the matter which is now under discussion, it is a question of some importance whether the requisition to the petitioner to expose his foundations, which was dated 18th February 1938, can be regarded as a requisition for information or as an objection. Mr. Basu on behalf of the Municipality strenuously contends that this requisition should be regarded as relating to an objection raised by the Commissioners with reference to the building application and, in this view, he contends that the Commissioners were not restricted by any time limit as regards the date by which they should come to a decision with reference to the objection. Having regard to the nature of this particular requisition, I do not think it can be said that it amounted to anything more than a requisition for information with regard to the nature of the building which it was proposed to erect and the foundations thereof. It certainly cannot be said that it formulated any objection which might be maintained with reference to the building rules contained in Schedule 17 and, on this point therefore I am not prepared to accept Mr. Basu's argument.

10. The learned advocate for the Municipality then puts forward an alternative argument to the effect that, even if it be assumed that the requisition, dated 18th February, was a requisition for information, the presumption which arises under Rule 58 did not come into operation. In this connexion, he contends, that an inference should be drawn that a further requisition for information must have issued under Rule 56(3) some time between 24th February and 12th March when the second inspection took place. In this view he argues that, as the calendar shows that the second inspection took place within fifteen working days of the first inspection, and, as the order of refusal, dated 23rd March, was issued well within a period of 15 days from 12th March, it would follow that the Municipality took all the necessary steps within the periods required by Rules 56 and 57 and therefore the order of refusal, dated 23rd March must be regarded as effective. This argument is ingenious but it cannot be accepted. There are no materials of any description on the record which would justify an inference to the effect that the Municipality regarded the information supplied to them at the time of the first inspection as incomplete or defective within the meaning of Rule 56 (3) or that the Commissioners issued any requisition for further information under that sub-rule. Further, there is no evidence with regard to the nature of the further information (if any) which was supplied at the time of the second inspection on 12th March.

11. The obvious intention of the Legislature in enacting Rules 56 and 57 was to ensure that all business connected with applications for the erection of new buildings should be transacted expeditiously and it is necessary that these rules should be strictly interpreted. In this view of the law, it could not have been intended, merely by holding an inspection before the expiry of the statutory period of fifteen working days without the issue of any requisition for further information, that the Commissioners should acquire a right to an extension of the time within which they must issue the prescribed written order under the latter part of Rule 57(1). The intention of the Legislature is that the Municipality should follow strictly the mandatory procedure laid down in Rules 56 and 57 and this they failed to do in the present case. It follows therefore that the Commissioners should have communicated their decision with regard to this matter to the petitioner not later than fifteen working days after 24th February 1938. As a matter of fact, they did not intimate their refusal of the petitioner's application until 23rd March 1938, by which date the petitioner had already obtained the benefit of the presumption raised in Rule 58 by reason of which it must be presumed that permission by written order to erect his proposed new building had already been granted to him.

12. In view of the abovementioned considerations it is clear that the Commissioners had no authority to issue an order under Section 365(1), Calcutta Municipal Act, in order to stop the progress of the petitioner's building work. An order to stop the progress of work under that Section can only be issued in cases in which work is proceeding unlawfully in the manner indicated in Section 363 of the Act. In view of the terms of Rule 58 of Schedule 17 it must be deemed that an unconditional written permission had been granted to the petitioner to proceed with the work in connexion with his proposed new building in accordance with the specifications submitted with his application under E. 52, provided he did not contravene any of the provisions of the Act or of any rules or bye-laws made thereunder. The learned Magistrate has expressly found that there had been no such contravention. No question arose of any illegality under Sub-section (2) or (3) of Section 363. It therefore follows that Section 363 had no application in this case and that the work in connexion with the erection of the petitioner's building was not being carried on unlawfully within the meaning of Section 365.

13. It has been faintly urged on behalf of the opposite party by Mr. Basu that the petitioner cannot now claim the benefit of the presumption raised by Rule 58 having regard to the fact that, after the order of refusal, dated 23rd March 1938, was communicated to him, he submitted his application to the building committee of the Municipality and thereby agreed to all intents and purposes to abide by their decision. Although it is admitted that the petitioner's application came before the building committee of the Municipality on 10th January 1939 there is no evidence on the record from which it can be inferred that it was at his instance that the matter came before the committee in this way. In any case however a right had certainly accrued to him to continue his building operations having regard to the provisions of Rules 57 and 58 and it follows that, if he continued those building operations after a belated refusal of his application by the Municipality, he would commit no criminal offence if he disregarded any illegal stop order -which the Commissioners might issue against him. The learned advocate for the Municipality in effect wishes to contend that the petitioner is at liberty to waive his right to immunity in respect of a criminal prosecution in the circumstances of the present case, but this is an argument which I am not prepared to accept.

14. Having regard to the considerations set forth above I am of opinion that the conviction of the petitioner under Section 365 read' with Section 488, Calcutta Municipal Act, is-illegal. The conviction is therefore set aside and the rule is, accordingly, made absolute. The fine and the costs, if already paid, will be refunded.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //