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Ram Kumar Shaw Vs. Bhatpara Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1116 of 1949
Judge
Reported inAIR1951Cal311
ActsBengal Municipal Act, 1932 - Section 330
AppellantRam Kumar Shaw
RespondentBhatpara Municipality
Appellant AdvocatePurnendu Sekhar Basu, Adv.
Respondent AdvocateS.S. Mukherjee, Adv.
Excerpt:
- .....the previous goomti existed more than six months before the application by the municipality to the magistrate, the municipality could not ask the magistrate to pass an order of demolition. as a fact the magistrate held on the evidence that there was previously a smaller goomti more than six months before the application but that was removed and this new goomti, a bigger one, had been erected only a short while before the application and very much within six months. he, therefore, ordered the demolition of this new goomti.2. on revision the additional district magistrate upheld the order of the magistrate. then the present rule was obtained.3. it is urged by mr. basu appearing on behalf of the petitioner that as demolition was a form of punishment we should take it that this order of.....
Judgment:

K.C. Chunder, J.

1. This is a petition in revision by one Ram Kumar Shaw who was ordered by the Sub-Divisional Magistrate of Barrackpore to demolish a goomti which was said to have been erected on municipal land without necessary sanction. The contention of the Municipality was that this goomti was raised within six months. A previous smaller goomti having -been raised the Municipality directed the petitioner to remove the same and he complied with that order but subsequently he put up this goomti where he was, it seems, carrying on a shop. This was a larger goomti. The petitioner's contention was that this was the previous goomti referred to by the Municipality which was still in existence and the previous goomti existed more than six months before the application by the Municipality to the Magistrate, the Municipality could not ask the Magistrate to pass an order of demolition. As a fact the Magistrate held on the evidence that there was previously a smaller goomti more than six months before the application but that was removed and this new goomti, a bigger one, had been erected only a short while before the application and very much within six months. He, therefore, ordered the demolition of this new goomti.

2. On revision the Additional District Magistrate upheld the order of the Magistrate. Then the present Rule was obtained.

3. It is urged by Mr. Basu appearing on behalf of the petitioner that as demolition was a form of punishment we should take it that this order of demolition was on a prosecution by the Municipality and therefore Section 532, Bengal Municipal Act, which requires prosecution within six months, applied and as in the present case action was taken more than six months after the erection of the goomti, the order of removal was bad.

4. It is quite immaterial whether erection of an unauthorised structure is an offence or not or whether an order of removal is one in the nature of a punishment. The Bengal Municipal Act in Section 330 makes a clear distinction between an application made to the Magistrate for an order of removal and any prosecution which may take place over the same matter. Prosecutions in a majority of cases are provided for in Sections 500 and 501 and other sections of the aforesaid Act. The order of removal is provided in Section 330 and it is quite a distinct order from a prosecution. There is no time limit fixed in the Act for such an application under Section 330 of the aforesaid Act. Therefore the contention that there is a time limit of six months cannot stand. We have already pointed out that on facts also this contention cannot be supported as was pointed out by the Magistrate.

5. Under the circumstances the Rule is discharged.

Sen, J.

6. I agree.


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