1. This Rule has been obtained by the petitioners against an order passed by Sri N. K. Ghose, Municipal Magistrate, Calcutta, whereby the petitioners have been directed to pay a fine of Rs. 100 each, the fine purporting to have been inflicted under Section 493, Calcutta Municipal Act.
2. The facts briefly are as follows: On 15th September 1948, the Corporation of Calcutta filed an application before the aforesaid Municipal Magistrate under Section 363, Calcutta Municipal Act. The Corporation prayed for the demolition of certain structures constructed at 43 Netaji Subhas Road on the ground that these constructions were made without the sanction of the Corporation and also on the ground that the constructions infringed certain bye-laws framed for buildings under the Calcutta Municipal Act. It was stated in the petition that the Corporation detected this unauthorised building on 10th January 1948. Before the learned Magistrate the persons complained against, that is to say, the present petitioners adduced evidence to show that none of the building regulations had been infringed and the Municipal Magistrate has found in favour of the petitioners on this point.
3. Next, the petitioners took up the position that the constructions had been made more than five years prior to this petition and that therefore no demolition order could be passed. The evidence on this point was not believed by the learned Magistrate and he has held that the building was constructed in 1945, that is to say, within three years of the application and therefore the Corporation was not barred from applying for its demolition. The learned Magistrate also found that the building bad been made without the sanction of the Corporation. All these finding are now not challenged.
4. The learned Magistrate after arriving at these findings has held that the unauthorised construction has not injured or in any way affected the rights of the neighbouring owners. I may mention here that these proceedings were initiated pursuant to letters written to the Corporation by one Kashi Nath Mallik, witness No. 4 for the Corporation. He complained that his rights regarding air and light have been affected as a. result of this unauthorised construction. The learned Magistrate has dealt with this point and has found that the unauthorised building could not possibly affect the rights of this witness regarding light and air inasmuch as his building is mostly a one-storied one and this unauthorised construction was built on the top of the third floor of the petitioners' building. This finding also is not challenged and indeed it could not be challenged.
5. After arriving at these findings the learned Magistrate took up for consideration what order he should pass in view of the fact that the building was without sanction. He says that having regard to all the circumstances of this case he saw no reason to demolish the building as it affected nobody's rights, but he added that as the building was unauthorised, he should dispose of the proceedings under Section 493, Calcutta Municipal Act and relying on that section he fined the petitioners in the manner stated above.
6. On behalf of the petitioners, it was argued that no fine under Section 493, Calcutta Municipal Act could be passed by reason of the provisions of Section 634 of the aforesaid Act which says that no person shall be liable to punishment for any offence under this Act or any rule or bye-law made thereunder unless complaint of such offence is made before a Magistrate within three months next after he commission of the offence or if such date is not known, after the date on which commission or existence of such offence was first brought to the notice of the Corporation or the Executive Officer. He points out that in this case if the proceedings are considered to be one under Section 493, Calcutta Municipal Act, the learned Magistrate had no power to inflict any fine on the petitioner because the proceedings were started more than three months after 10th January 1948 when according to the petition of the Corporation itself the offence was detected. He points out further that from the letters put in it is clear that the offence was brought to the notice of the Corporation long prior to 10th January 1948, as it was brought to the notice of the City Architect on 24th August 1945 by Kashi Nath Mallik.
7. On behalf of the opposite party, it is contended that Section 534 of the aforesaid Act has no application as these were, not proceedings under Section 493 but proceedings under Section 363 of the aforesaid Act. Learned counsel pointed out that Section. 534 of the said Act dealt with punishment for an offence and that therefore it related to proceedings under Section 493 which deals with the infliction of a fine and not with the proceedings under Section 363 which deals with a mandatory injunction to demolish a building. He contended therefore that Section 534 of the Act had no application. He further contended that the learned Magistrate was wrong in dealing with the case under Section 493 of the Act. I am of opinion that the contention of learned counsel that Section 534 does not relate to proceedings under Section 363 but to proceedings under Section 493 of the Act is sound; but if these proceedings are considered to be proceedings under Section 363, then it follows that no fine can be inflicted under the provisions of Section 493. So, in any case the order of fine passed by the learned Magistrate cannot be upheld. Learned counsel accepts this position and he suggests that the case should be sent back to the Municipal Magistrate with a direction that he should deal with it under the provisions of Section 363, Calcutta Municipal Act.
8. In my opinion, having regard to the law as it stands, the Magistrate had no jurisdiction to treat the application as being one under Section 493 of the Act. This has been clearly laid down by the Chief Justice in the case of Farrukh Sayer alias Mannoo Miah v. The Corporation of Calcutta, in Criminal Revision No. 285 of 1948. In Section 863 there is a proviso that where the Corporation have instituted proceedings under Section 493, no application shall be made under Section 863. There is a similar proviso in Section 493 which says that where an application has been made under Section 363 or Section 864, no proceedings shall be instituted by the Corporation under Section 493. The proceedings having been instituted under Section 363 of the Act it was not open to the learned Magistrate to convert the proceedings to one under Section 493. If the parties could not do so, I do not see bow the learned Magistrate could do so. The learned advocate for the petitioners referred to the case of Corporation of Calcutta v. Bangshidhar : AIR1938Cal36 which he said supported the view that the Magistrate had the power to convert proceedings under Section 363 to proceedings under Section 493 although the parties themselves could not do so. I have been through the case and I find that this is what was argued before Biswas J. but Biswas J. did not express any definite opinion on the point. He expressly says so in the judgment. There is therefore only the case decided by the Chief Justice on this point and having regard to the decision in that case and the express words in the provisos of Sections 363 and 493, I am of opinion that the learned Magistrate had no jurisdiction to invoke the aid of Section 493 of the Act in these proceedings. To hold that a party could not invoke the aid of Section 493 and that the Magistrate could do so seems to me on the face of it to be illogical.
9. The learned Magistrate was induced to do this by reason of the conduct of both the parties in this matter. The learned lawyer for the Corporation in his argument stated that 'the defendant should be penalised. The Court may pass an order of demolition or impose a penalty under Section 493.' This was the conclusion of the argument of the lawyer for the Corporation. Thereafter the learned Magistrate passed an order that the case should be put up for judgment on 1st June 1949. Prior to that date on 24th May 1949 a petition was put in by the present petitioners asking the Court to treat the case as one under Section 493 if the Court held the view that the unauthorised structures were made within five years prior to the institution of this case. No order was passed on this petition, but in the judgment the learned Magistrate seems to have accepted the views expressed by the lawyers of both parties that he had power to deal with this application either in accordance with the provisions of Section 363 or in accordance with the provisions of Section 493. As I have said before the Magistrate bad no power to do this. He should have dealt with the application as it was made, that is to say, dealt with it in accordance with the provisions of Section 368.
10. The next question which arises is what order should be passed in this case. The order for fine obviously cannot stand and it is hereby set aside. The application having been made according to the provisions of Section 363 it must be dealt with in accordance with those provisions. The learned Magistrate in the major portion of his judgment has dealt with the petition on the footing that it was a petition for action under Section 363 but it is only at the time of considering what final order he should pass the learned Magistrate said that the fine under Section 498 would be the proper order to pass inasmuch as the building was unauthorised. He held however in the main part of his judgment that no ground had been made out for demolition of the structures. Learned counsel for the Corporation argues that having regard to all the circumstances of this case the case should be sent back to the learned Magistrate and he should be asked to treat it with sole reference to Section 363. He contended that the learned Magistrate refrained from passing an order of demolition because he thought that he had some other power of punishing the petitioner, namely, the power of fining the petitioners namely, under Section 493. He suggested that this was the reason why the learned Magistrate did not order demolition. I have been through the judgment and I am of opinion that this contention is not sound. The learned Magistrate did not refuse to order demolition because he thought be could fine the petitioners. He refused to order demolition on the ground that the structure harmed nobody and that it was just and equitable that demolition should not be ordered. This is what he says:
'I consider where no infringement of the building rules is involved and where as in this case no adjoining owner has been affected, it will be just and equitable for the Court not to make an order of demolition. I, therefore, allow the unauthorised structure to remain.'
11. Thereafter he goes on to say that this is a proper case where a fine should be passed under the provisions of Section 493. Another contention of learned counsel was that under the provisions of Section 363 the Magistrate had no option. Once he found that the building was without the sanction of the Corporation, he was bound to order its demolition and he said that the word 'may' appearing in Section 363, should be construed as 'shall'. In my opinion, this contention cannot be supported and it is against two decisions of two Benches of this Court in cases under the old Calcutta Municipal Act, Section 449. The words of Section 449 of the old Act and Section 363 of the present Act so far as this matter is concerned are exactly the same. In both these cases, it was held that the magistrate was not bound to order a demolition even if he found that a building is unauthorised or that it infringed the building rules but that he had a discretion in the matter. I refer to the case of Abdul Samad v. Corporation of Calcutta, 33 Cal. 287: (3 Cr. L. J. 211) and to the case of Chuni Lal Dutt v. Corporation of Calcutta, 34 Cal. 341: (4 Cr. L. J. 408). In both these cases it was held that the magistrate had a discretion in the matter and he could refuse demolition if he thought it would be against equity and justice. In the latter case it was also decided that this Court on revision had the power to exercise all the powers which the Magistrate had and that it is open to this Court either to order demolition or to prohibit demolition if such demolition had been ordered by the learned Magistrate. In this connection I would refer to the observations made by the learned Judges in the case of Chuni Lal Dutt v. Corporation of Calcutta, 34 Cal. 341 at p. 344. I therefore hold that I have jurisdiction to decide whether there should be demolition or not. Upon the evidence which has been adduced I am of opinion that there should be no demolition. The building was constructed so far back as 1945 and it is quite clear from the correspondence between Kashi Nath Mallik and the City Architect that the Calcutta Corporation was apprised of this unauthorised building on 24th of August 1945. The Corporation did nothing during all these years and it was not until 15th September 1948, that they started these proceedings. Where a party is allowed to be in possession of a building for such a period, with full knowledge of the Corporation it seems to me to be unfair and unjust to direct the party to demolish the building especially as the building has not infringed any of the building bye-laws of the Corporation and has not affected adversely any rights of the neighbours. I do not think therefore that there is any necessity for me to send this case back to the Municipal Magistrate for considering whether there should be an order for demolition or not. I hold in agreement with him that the facts would not justify an order of demolition. As the Corporation chose to proceed under Section 363 there can be no other punishment inflicted on the petitioners.
12. Having regard to what has been said above I set aside the order of fine and make this rule absolute. The fine, if paid shall be refunded.