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Aditendra Nath Mitter and ors. Vs. Bhupati Bhusan Sen Gupta - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1936Cal373,166Ind.Cas.457
AppellantAditendra Nath Mitter and ors.
RespondentBhupati Bhusan Sen Gupta
Excerpt:
- .....calling upon the chief presidency magistrate of calcutta as well as upon the chairman of the calcutta improvement trust to show cause why the convictions and sentences under section 171, calcutta improvement act, passed upon the petitioners should not be set aside. the offence complained of was that the accused had put up structures in premises nos. 14 to 23, jackson lane, calcutta, without the permission of the improvement trust and without an agreement as required by section 63 (8), improvement trust act. the question is whether the accused have infringed the provisions of section 171, which lays down that:if any person, without the permission of the chairman required by section 63, sub-section (8) erects, re-erects, or adds to any wall (exceeding ten feet in height) or building.....
Judgment:
ORDER

Jack, J.

1. This rule was issued calling upon the Chief Presidency Magistrate of Calcutta as well as upon the Chairman of the Calcutta Improvement Trust to show cause why the convictions and sentences under Section 171, Calcutta Improvement Act, passed upon the petitioners should not be set aside. The offence complained of was that the accused had put up structures in premises Nos. 14 to 23, Jackson Lane, Calcutta, without the permission of the Improvement Trust and without an agreement as required by Section 63 (8), Improvement Trust Act. The question is whether the accused have infringed the provisions of Section 171, which lays down that:

If any person, without the permission of the chairman required by Section 63, Sub-section (8) erects, re-erects, or adds to any wall (exceeding ten feet in height) or building which falls within the street alignment or building line of a projected public street shown in any plan sanctioned by the Local Government under the said section shall be punishable.

2. The grounds on which this rule is supported are (1) that there has been no reerection of any building within the street alignment and (2) that in any case there has been no reconstruction or re.erection according to the plan Ex. 15, which the accused submitted. After the previous plan had not been accepted, this was the plan which was submitted by the accused as one according to which he proposed to construct a new building. As regards the first point it turns on the meaning of the word 're-erect.' It is claimed by the petitioner that the word 're-erect' is to be interpreted according to the meaning of that word in the Calcutta Municipal Act of 1899. In Section 3, Clause (39) of that Act it is laid down that the expression 're-erect' when used with reference to a building includes the reconstruction of a building after more than one-half of its cubical extent has been taken down or burnt down or has fallen down. It is argued that as the Calcutta Improvement Act of 1911 is a subsequent Act, and since the Improvement Trust and the Calcutta Corporation were working hand in hand, the same meaning should be attributed to the word by the Improvement Act as that put upon it in the Municipal Act. On the other hand, it is pointed out that there is no definition of the word 're-erect' in the Improvement Act, but in Section 2 it is stated that certain expressions, namely, drain, public street and street alignment, have the same meaning as in certain clauses of Section 3, Calcutta Municipal Act, the inference being that had the intention been to give any special meaning to the word 're-erect,' it would have been mentioned amongst the definitions in Section 2, Improvement Act, and that otherwise the meaning should be the ordinary meaning of the word, and that it was for the Court to decide whether in fact what had been done amounted to re-erection. I think there is considerable force in this argument.

3. In the absence of any definition of the word 're-erect,' I think it should have its ordinary meaning. Otherwise there was no reason, if it was intended that 're-erect' should be used in any other meaning than its ordinary meaning, why it should not have been defined in the Act itself. If then, it is used in its ordinary meaning, the finding of the Presidency Magistrate is that there has been re-erection in this case and the judgment shows that there has in fact been a considerable amount of re-erection, though it is admitted by the opposite party that if the meaning of re-erection in the present case coincided with the definition of the word as given in the Municipal Act, the work done would not amount to reerection. In this view of the matter, the first contention of the petitioners fails. Then as regards the second contention, the charge is constructing structures in premises Nos. 14 to 23, Jackson Lane, without the permission of the Improvement Trust. It was not construction according to one plan or the other, and if it is found that the accused actually constructed structures on the premises in question, they come under the Act since it appears that no sanction was given to the erection of any structure on the premises whether according to one plan or the other. The petitioner has pointed out that according to the evidence, no construction has been made according to the plan, Ex. 15. But it cannot be said, in view of the findings, that there has been no re-erection. It was open to the petitioner to contend before the Presidency Magistrate that what had been actually done did not amount to re-erection. But in view of the findings that in fact there was re-erection of the building, this contention must also fail.

4. Another ground that the petitioners urge is that the sentence is much too severe. In this connection it is argued that under Section 171 the fine may extend to Rs. 500, whereas in this case the fines imposed on the five petitioners will amount in all to Rs. 750 and that therefore it is illegal. Under Section 171 any person who erects a building without sanction is liable to a fine of Rs. 500. So that where more than one person joined in erecting a building, they are clearly each liable to a fine extending to Rs. 500. There is therefore nothing illegal in the amount of the fine. On the other hand, it has been pointed out that these proceedings have been pending for about a year and in view of the conduct of the petitioners, the fine is not too severe. Considering the fact that the petitioners have no doubt been able to utilize these buildings erected without sanction for the period of a year, I see no reason to interfere with the decision of the Presidency Magistrate who is in a better position to assess the amount of the fine than this Court sitting in revision. The Rule is, accordingly, discharged.


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