1. These are two Rules one taken out by Dr. Kartick Chandra Bose who is admittedly the owner of premises No. 45 Amherst Street, and the other taken out by seven other persons who claim to be occupiers of the same premises. The Rules are directed against an order, dated the 29th of June, 1951, passed by the Third Municipal Magistrate of Calcutta, whereby the learned Magistrate directed certain structures to be demolished.
2. It appears that on the 22nd of March, 1949, the Corporation received a letter from one D. K. Dutt who is the owner of premises Nos. 128 and 130 Keshab Sen Street, Calcutta, and by that letter the said D. K. Dutt complained that certain unauthorised structures had been put up at 45, Amherst Street with the result that the access of light and air to the adjacent premises owned by him had been materially affected. Prior to the receipt of this letter, however, the unauthorised structures had already received the attention of the inspecting staff of the Corporation and on the 21st of March, 1949, they had already made a report that certain unauthorised structures, some of which were still in the process of construction, had been detected. Thereupon on the same day, that is to say, on the 21st of March, 1949, a notice under Section 365 of the Calcutta Municipal Act was served on the owner. A notice under Section 363 of the said Act appears subsequently to have been served on the 13th of June, 1949 and the matter came up for discussion at a meeting of the Building Committee held on the 14th of June. Apparently, the matter was adjourned on the 14th of June and final orders by the Administrative Officer were passed on the 25th July. By that order the Administrative Officer directed four of the unauthorised structures to be demolished within three months and added that if that direction was carried out, the proceedings would be withdrawn. The direction was not carried out and consequently proceedings were instituted in the court of the Municipal Magistrate on the 11th of July, 1950.
3. I may pause here to point out that although the order of the, Administrative Officer was passed on the 25th of July, 1949 & only three months time was given to the owner to carry out the directions which would give him time up to the 25th of October, yet the Corporation did not find it possible to institute any proceeding till after nine further months, I have had occasion to comment before on the degree of expedition with which the Corporation transacts public business and this is but another instance of its normal speed.
4. It appears from the order sheet of the learned Municipal Magistrate that on the proceedings being instituted on the 11th July, 1950, he directed general and special notices to be given to the occupiers and to the owner respectively and he fixed the 29th of August, 1950 as the next date of hearing. The notices directed to be issued were notices under Sections 363 of the Act. On the 29th of August, 1950, the owner appeared through his son and, according to the order recorded by the learned Magistrate, on that date some occupiers also appeared. A prayer was made on behalf of the owner for an adjournment till after the Puja holidays in order that he might have sufficient time to file his written statement and, in accordance with that prayer, the case was adjourned till the 14th of November, 1950. More time passed and ultimately a written statement on behalf of the owner was filed on the 3rd of January 1951, but the occupiers seem to have taken no further part in the proceedings. In due course, the parties before the learned Magistrate led evidence; the owner examined his son, whereas the Corporation examined the complainant D.K. Dutt and its building inspector. The learned Magistrate held that the structures were, in fact, unauthorised, as alleged, and that there had been infringements of the building rules. Accordingly, he directed the owner to demolish the same four structures that had been ordered to be demolished by the Administrative Officer and gave the owner one month's time to do so. It was added that in case the owner failed to demolish the structures within the time given, the Corporation would be entitled to demolish them at the expense of the owner within two months of the date of the order. It is against that order that the present Rules are directed.
5. The owner and the occupiers were represented before us by the same learned Advocate and on their behalf four common grounds were taken. It was contended in the first instance that the order passed by the learned Magistrate was bad, inasmuch as no notice under section 363 of the Act had been served either on the owner or on the occupiers; secondly, that the learned Magistrate had clearly misread the evidence; thirdly, that the learned Magistrate had failed to consider, as he ought to have done, the propriety of applying the alternative provisions of Section 493 of the Act and imposing a fine on the owner; and lastly, that in any event the proceedings were time-barred, inasmuch as the offending structures had been completed more than five years before the institution of the proceedings.
6. I shall take these grounds in the reverse order.
7. The plea that the proceedings were time-barred was taken for the first time before this Court. Nothing was said about it in the written statement filed on the 3rd of January, 1951, nor was anything said by the son of the owner who deposed in the case. Under the proviso to Section 363 (2) of the Act, the onus of proving that the work concerned was done more than five years previously lies on the owner. Far from discharging that onus, in the present case the owner did not even take that plea at any stage of the proceedings before the learned Magistrate. Indeed, if his own statements in the petition before this court are to be accepted, the structures were completed in 1946 & even if they were completed on the first day of that year, the proceedings instituted on the llth of July 1950 would be obviously within time. But it is not necessary to decide the matter as an issue of fact in the present Rules. Since the plea involves issues of fact and since under the provisions of the statute it has to be taken and established by evidence by the owner, it cannot possibly be open to him to take it for the first time in an application revision to this Court. The first ground taken in support of the Rules must accordingly fail,
8. I have no hesitation in holding that the ground taken as regards the omission of the learned Magistrate to consider the provisions of Section 493 of the Act is wholly unmeritorious and unsubstantial. Building rules framed by an urban Municipality are intended to secure a reasonable provision of light and air and of means of access to buildings which may newly be put up and to preserve such provision for old buildings in the proximity of which such new structures may be erected. They are further intended to ensure adequate facilities for sanitation and to achieve and maintain a certain degree of architectural harmony in the locality. If any structures are erected in violation of the building rules, these objects will, in most cases, be defeated and whenever any offending structures are detected, the obviously right course is to take steps for their demolition. It cannot be right to compound transgressions of this kind with the imposition of a mere fine, because once the authorities start making exceptions in applying the rules, they would not know where to stop and once the public come to know that the only consequence of erecting unauthorised structures would be a liability to pay a small fine, one might find this city, as I have said elsewhere, filled up with structures, indiscriminately built, under the notion that it was possible to buy up the right of infringing the building rules by paying a small fine. There may be, I concede, some very exceptional cases where the infringement has been of so trivial and technical a character that the imposition of a small fine will meet the needs of the case, but, speaking generally, where substantial infringements have taken place and the Corporation has though fit to institute proceedings for demolition, it cannot be right to allow the offending structures to stand and let the offender off with only a fine.
9. Apart from that, it seems to me to be a mistake to suppose that Section 493 of the Act does not contemplate demolition. That section provides for fines of two kinds, a fine of a lump sum and also a daily fine which is to be paid for each day during which the offence is continued after the first day. Obviously, the object of framing a provision for a double fine of that kind is to make it expensive for the offending builder to maintain the structures concerned and to compel him by the pressure of the monetary penalty to pull them down as quickly as possible.
Again, as it appears to have been pointed out in certain decisions and as is clear from the Act itself, the provisions of Sections 363 and 493 of the Act are mutually exclusive, for the first section says that where the Corporation has instituted proceedings under Section 493 of the Act, no application shall be made under that section and similarly Section 493 provides that where an application has been made under Section 363 or Section 364 of the Act, no proceedings shall be instituted under that section. It follows, to my mind, as clearly as possible that once the Corporation has started proceedings under Section 363 of the Act and where the proceedings under that section are before the Magistrate, it cannot be open to the Magistrate himself to convert the proceedings into proceedings under Section 493: So to do would be clearly to violate the provisions of the statute. On the other hand, while the Magistrate cannot substitute proceedings under Section 493 for proceedings under Section 363 of the Act, he can, it would appear, both impose a fine and require the offending owner to demolish the structure concerned. That course is warranted by Section 536 of the Act which lays down that when under the Act or under any rule qr by-law made thereunder, any person is liable in respect of any unlawful work-
(a) to pay a fine, and (6) to be required to demolish the work, the Magistrate may, in his discretion, and subject to the provisions of Sections 363, 364 and 493 of the Act, direct the said person to pay the fine and also to demolish the work. What the true import of the qualification 'subject to the provisions of Sections 363, 36-1 and 493' is, I need not pause to consider in these Rules. Suffice it to say, that while the Act seems to authorise, 'prima facie' at least, both imposition of a fine ,and an order for demolition, it certainly does not authorise the substitution of proceedings under Section 493 for proceedings under Section 363 of the Act. This ground must also therefore fail.
10. The next ground urged by the learned Advocate for the petitioners was that the learned Magistrate had clearly misread the evidence in the case. I am bound to say that the complaint of the petitioners in this regard is in a sense justified. In the course of his order the learned Magistrate states that the son of the owner had admitted that, except one or two items, all the structures were 'unauthorised'. What the witness had, in fact, stated, however, is that except one or two items' 'all works are authorised'. How the Magistrate could have fallen into that curious error, it is not easy to understand. I do not, however, think that this error has, in any way, prejudiced the owner or led to any failure of justice, because according to; the evidence of the same witness, the structures had to be constructed hurriedly for giving shelter to refugees and therefore no sanction could be taken. A similar statement has been made in paragraph 8 of the owner's petition to this Court.
I may add that in the written statement filed on behalf of the owner it was not stated that any sanction had been taken for the structures objected to and all that was said was that those had to be constructed expedttiously and that in the course of the 'speedy construction', there might have occurred 'a little infringement of the building rules'. The case thus made both in the written statement and in the petition to this Court is that the structures are unauthorised in the sense that no sanction therefor had been taken, but, on the other hand, no substantial infringement of the building rules had been committed. The case made in the written statement and that made in the owner's petition to this Court 'are the same except that 'a little infringement' in the written statement has become 'no infringement' in the petition. While, therefore, the petitioners are right in contending that the learned Magistrate had misread one part of the evidence of the owner's son, I do not think, in view of the case made by the owner himself, both in the written statement and in the petition to this Court and in the other part of the evidence of the son, that any miscarriage of justice has occurred by reason of that error alone.
11. The last ground is to the effect that no notice under Section 163 (363?) of the Act was served either on the owner or on the occupiers. It will be convenient to take the owner and the occupiers separately.
12. So far as the owner is concerned, there cannot be the slightest doubt that all notices under Section 363 of the Act were served upon him. Section 363 does not, in terms, provide for the service of any notice and all that it says is that before applying to a Magistrate for a demolition order, the Corporation, must give the owner an opportunity of being heard and, further, that the Magistrate shall not make any order without giving the owner and the occupier full opportunity of adducing evidence and of being heard in his defence. It has, however, been held by this Court that the only possible means of giving the opportunity contemplated by the section is service of a notice. As has been seen from the provisions of Section 363 of the Act to which I have already referred, two notices at two different stages are contemplated by the section. The first notice is notice of the proceeding before the Corporation itself and the only person entitled to that notice is the owner. The second notice is to be given by the Magistrate and that notice is to be given both to the owner and to the occupier.
So far as the first notice is concerned, there is on the file a return of service relating to that notice and it bears on it a signature of some one who had received the notice on behalf of the owner. The minutes of the meeting of the Corporation refer to the fact that the owner had been invited to attend and it is perfectly clear from the record of the proceedings that representations were made on the owner's behalf. There can thus be no doubt that the notice contemplated by the first part of Section 363 of the Act and relating to the proceedings before the Corporation was, in fact, served on the owner, Dr. Kartic Chandra Bose. So far as the second notice is concerned, namely, the notice of the proceedings before the Magistrate, there can equally be no question that it was served, for the owner responded to the notice, appeared before the Magistrate, asked for an adjournment, duly filed a written statement and ultimately led evidence in his defence. How in those circumstances it could ever be contended or pleaded that no notice under Section 363 of the Act had been served on the owner, it is impossible to see. The affidavit in support of the petition to this Court is affirmed by one Radha Kanta Banerjee who describes himself as an officer of the owner. It is stated in paragraph 4 of the petition that no notice under Section 363 of the Act was served upon the owner and the person affirming the petition states that the fact is true to his knowledge. As I have already pointed out, both the notices under Section 363 were in fact served and it could not be a fact that no service of a notice under that section had taken place.
In any event, it is impossible to see how anybody except the owner himself could ever affirm truthfully that the fact that no notice under Section 363 was served upon him was true to his knowledge. Surely, Radha Kanta Banerjee had not been sitting constantly by the side of the owner during all the 24 hours of the day from the time the proceedings were instituted up to the date that they came to an end. In answer to an enquiry from Rs. Mr. Sinha, the learned Advocate for the petitioner, stated that he had, in fact, received his instructions from the owner himself, but the officer who had affirmed the petition was present and that Mr, Sinha himself was responsible for the form in which the affirmation had been expressed. All that I need point out is that the result has been to make Radha Kanta Banerjee swear a false affidavit and once can only regret that greater care is not bestowed on drafting affidavits which are to be used in this Court.
13. For the reasons I have already given, there is no substance in the complaint that no notice under Section 363 of the Act was served upon the owner. The position with regard to the occupiers is, however, different. I have already pointed out that on the 29th of August, 1950, certain occupiers appeared before the learned Magistrate & joined with the owner in praying for an adjournment. The Corporation, therefore, had notice that some persons were claiming to be occupiers. In paragraphs 4 and 9 of the owner's petition to this Court, as also in other paragraphs, it is clearly stated that portions of the premises concerned are occupied by tenants.
The whole of the petition upon which the second Rule was issued is based on a claim made by seven persons that they have been in occupation of portions of the premises concerned on payment of rent since 1947. In spite of this clear notice that certain persons are claiming to be occupiers of the premises in question, the Corporation has not filed any affidavit in opposition, nor has it denied in any other way that the claim that certain portions of the premises are tenanted is unfounded. Broadly stated, the position is that there is a statement by the petitioners in both the Rules that there are some occupiers in portions of the premises and there is no denial by the Corporation. In those circumstances it is impossible not to hold that besides the owner, there are certain occupiers who are interested in resisting the proposed demolition and who are entitled to be heard in their defence under the provisions of Section 363 of the Act.
14. It was, however, contended on behalf of the Corporation that no one was entitled to a notice under Section 363 of the Act, merely because he was in physical occupation of the premises concerned, if his name was not entered in the Assessment Register. Reference in support of that contention was made to Section 144 (3) of the Act which lays down that no owner or occupier, whose name is not entered in the Assessment Book, shall be entitled to object that any bill or notice or warrant etc., has not been made out in his own name.
The identical argument was advanced in the case of -- 'Ashutosh Sarkar v. Corporation of Calcutta', 48 Cal W N 170 and it was repelled by a Bench constituted of two Judges, one of whom had very special experience of matters relating to the Corporation of Calcutta. Apart from authority, the section, in my view, is perfectly clear. It mentions the word 'occupier' 'simpliciter' and does not speak of an occupier whose name has been entered in the assessment book. Under the definition of 'occupier', as given in Section 3(48) of the Act, 'occupier' includes any person for the time being paying or liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which the word is used. It is not necessary to quote the rest of the definition. According to the petitions in the present cases, the occupiers concerned are in occupation oh payment of rent. They thus come clearly within the defintion, if their case is true and it is not possible to hold that they are not entitled to be heard for the reason that their names are not borne on the Assessment Register.
15. It was next contended by the learned Advocate on behalf of the Corporation that the occupier contemplated by Section 363 of the Act was 'the occupier of the structure to be so demolished' and, consequently, the occupiers in the present case could not be entitled to a notice under the section in view of the fact that the structures to be demolished were, in some cases at least, mere staircases. Now, it is perfectly true that if a certain building is proposed to be demolished, occupiers of another building are not entitled to notice under Section 363. What I understood the learned Advocate, to say was that in the case of the staircases at least, it could not be said that anybody was in occupation. It is only necessary to point out that the offending structures are, according to the Corporation, six in number and the third item in the list is 'a three-storied building and verandah with R. T. roof and gangway at first floor level'. If the whole of the three-storied building was constructed without sanction and in infringement of the building rules and if there are occupiers in the premises, it is reasonable to presume that they, or some of them at least, are occupiers of that building. Besides, it appears to me that if the stairs of any building are proposed to be demolished, it is not possible to say that the occupiers of that building are not in occupation of the stairs and therefore they are not entitled to be heard under Section 363 of the Act. It is in the very nature of things impossible that anybody should occupy the stairs in the sense of living on them.
But if the stairs are in a building which is occupied, the occupiers must necessarily use the staircase for reaching their rooms or for going out from them and they are obviously in possession or occupation of the stairs in the only form of occupation of which stairs are susceptible. I do not, therefore, think that it can rightly be contended that simply because the occupiers of a building are not squatting on the staircase all the time, they are to be regarded as not occupiers in respect of the staircase and are to be held not to be entitled to any notice under Section 363 of the Act, if the stairs are proposed to be demolished. Where an entire building occupied by certain people is sought to be demolished, there can be no question that the occupiers are affected. Where a portion is sought to be pulled down, the test must always be whether the occupiers are likely to be affected in the enjoyment of the portion of which they are in occupation. If they are likely to be affected, they are clearly entitled to notice under Section 363 of the Act.
16. I must add, however, that premises No. 45, Ahmerst Street seem to cover a fairly large area amounting to one bigha, ten cottas, twelve chhataks and three square feet of land, On the premises appear to stand a number of rambling structures connected by gangways or otherwise and it is not too clear to us which portion is in occupation of the occupiers and whether they are likely to be affected if, for example, items 1 and 2 which are stairs or item 4 which comprises re-inforced concrete posts and re-in-forced concrete framework in the fourth storey or any other item is demolished. This is a matter which will have to be gone into by the learned Magistrate and one can only hope that adequate assistance from both the Corporation and the owner and the occupiers will be forthcoming,
17. It was thirdly contended by the learned Advocate for the Corporation that certain of the occupiers having, in fact, appeared, it could not rightly be said that they had not been given an opportunity to adduce evidence or to be heard in. their defence and that therefore the non-service of notice under Section 363 of the Act could not be made a ground for challenging the learned Magistrat's order. Reference was made to the 'fact that, according to the learned Magistrate's note recorded on the 29th of August 1950, some occupiers appeared before him on that day. It is true that according to that note, some occupiers appeared, but there is nothing to show who they were or if any of the present occupiers appeared on that date. Even if some of them appeared, others did not and there is no material on which one can possibly hold that those who did not appear were represented by those who did. It is therefore not possible to throw out the objection of the occupiers merely on the ground that, according to the learned Magistrate's note, some occupiers who have not been identified appeared before him on the 14th of November 1950.
18. It was lastly contended by the learned Advocate for the Corporation that a general notice to the occupiers had been given in the present case and that the service of that notice was sufficient compliance with Section 363 of the Act. Reference was made to the decision in the case of -- 'Ashutosh' Sarkar v. Corporation of Calcutta', 48 Cal W N 170 to which I have already referred and it was contended that it was on the basis of the observations made in that decision that the Corporation had devised the form of a general notice which, had been used in the present case. The service of such a notice, it was further contended, was authorised and justified by Section 504(c) of the Act.
19. I have no doubt in my mind that Section 504(c) of the Act cannot be said to apply in terms to any notice to be given by the Magistrate. That section appears in Chapter XXXVII of the Act which deals with procedure and it is perfectly clear from the terms of the section itself that it refers to notice which is required by the Act to be given by the Corporation. For example, Clause (a) refers to the service of a notice or a document on one or several owners or occupiers when 'it is not in the opinion of the Corporation practicable to serve the document on every one of them'. There are several other indications in different parts of the section as also in sections preceding and following it from which it is perfectly clear that what the whole chapter contemplates are notices to be given by the Corporation. Their Lordships in the case of -- 'Ashutosh Sarkar v. Corporation of Calcutta', 48 Cal W N 170 did not say that a notice under Section 504(c) could be given for the purposes of Section 363 of the Act and were careful only to say that some notice in the manner of a notice under that section could at least be given.
Assuming that in a case where the Corporation, after making the best efforts in that behalf, cannot discover who the occupiers are or every individual occupier (is?) or where the. serving officer fails to effect service on each one of them, it may be permissible to issue a general notice in the form of a notice under section 504(c), still, before a notice can be issued in that form, it is clear that the methods laid down in Clauses (a) and (b) of the section must first be exhausted. There is nothing to show in this case, and indeed it is not claimed, that any attempt was made to serve the occupiers in the manner prescribed by either Clause (a) or Clause (b) of Section 504 and that that attempt failed. In no view of the section or of general principles could it be said that the Magistrate would be justified in adopting at once and even at the beginning the method prescribed by Clause (c) of section 504. I may further point out that even if the form of a notice under Section 504(c) could be said to have been properly adopted in the present case, the notice itself was clearly insufficient, for in the column for 'the unauthorised works complained of', all that was inserted was 'erection of staircase from ground floor to first floor level On the north side etc.'
As I have already stated, the offending structures complained of are six in number and at least four of them were proposed to be demolished. The general notice mentioned only one of them. It is thus clear that even the notice were not to be held defective for the reason that it was a general notice, it is bound to be held defective for the reason that on account of the limited nature of its contents, it could not serve as sufficient or adequate notice of the proposed demolition against which the occupiers were required to show cause. The issue of the general notice, such as was issued in the present case, cannot therefore be held to have been a sufficient compliance with Section 363 of the Act.
20. It is only fair to observe that Section 363 seems to place the Corporation in an unenviable position, particularly in respect of large buildings or mansions which may be very populously tenanted. It appears to have been contended in certain cases that the section did not really intend a notice to be given to an occupier who was not the owner, because it spoke of giving an opportunity to the owner and the occupier of being heard 'in his defence'. The argument was that if two persons, namely, the owner and an occupier who was not the owner, were contemplated, the section could not have used the word 'his', but would have used the word 'their'. This argument appears to have been advanced in the case of --Gobinda Charan v. Corporation of Calcutta', 53 Cal WN 813 but was not accepted, although the infelicitous language in which the section is expressed was commented on.
I may further point out that, grammatically, . if two persons were intended, the correct mode of expression would be not 'the owner and occupier' but 'the owner and the occupier'. At the same time, one cannot overlook the fact that in the first part of the section where the owner alone is contemplated, the section mentions him alone, for it is said there that the Corporation may proceed after giving 'the owner' an opportunity of being heard. It the owner alone was contemplated even in the second part of the section which refers to the magisterial proceedings, it .is not clear why the word 'occupier' should have been added there. In that state of the language in which the section is expressed, I am not prepared to depart from the construction already adopted in several cases decided by this Court and would prefer to follow the settled law that the section contemplates both the owner and the occupier. How in a case where hundreds of families occupy a mansion and where the name of not one of them is borne on the assessment book, the Corporation is to ascertain who the occupiers are, it- is not for us to say. It may be that the Magistrate will be right in requiring the owner to state who the occupiers are. But, obviously, if the owner omitted to mention the name of any occupier, the person so left out would not be bound by the omission and would not lose his right to be heard in his defence, if he could make out that he was in fact an occupier. This is a matter to which legislative attention may have to be directed.
21. So far as the present case is concerned, Mr. Sinha who appears for the petitioners in both the cases, that is to say, for both the owner and the occupiers, assures us on behalf of both that the only occupiers of the premises concerned are the seven petitioners in Criminal Revision Case No. 851 of 1951 namely 1. Narendra Nath Bose, 2. Aswini Kumar Das, 3. Jatindra Nath Bose, 4. Rampada Ghose, 5. Hirendra Nath Bose, 6. Bhaskar Roy and 7. Utpal Bose. Mr. Sinha further informs us on behalf of both the owner and the occupiers above named that there are no sub-tenants under the occupiers. This statement having been made on behalf of both the owner and the occupiers will be binding on all of them.
22. We are further of opinion that it is unnecessary in the present case that the learned Magistrate should issue notices under Section 363 of the Act at this stage. All that the section provides is that the occupiers are entitled to an opportunity of adducing evidence and of being heard in their defence. The occupiers are before Rs. They are aware that a proceeding is pending before the learned Magistrate and thus they have had notice of the proceeding. On their behalf Mr. Sinha very fairly agrees that it is unnecessary that formal and individual notices should any longer be served upon them and that they will be prepared to enter appearance before the learned Magistrate on a date fixed by us.
23. In the result we set aside the order of the learned Magistrate, dated the 29th of June, 1951 and send the case back to him to be reheard in accordance with the directions given below and in accordance with law, the directions being (here his Lordship gave certain directions, which are not necessary for the purposes of this report--Ed.).
24. The Rules are accordingly made absolute and the learned Magistrate is directed to rehear the case from the stage reached by him at the conclusion of the evidence given at the original hearing, and complete the hearing after giving the occupiers an opportunity of adducing evidence and being heard in their defence in accordance with the directions given above.
25. Let the record be sent down with the least possible delay so that it may reach the court below before the 28th February next.
26. I agree.