Corporation Of Calcutta vs Mulchand Agarwalla
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 60 of 1954
Decision Date: 17 November, 1955
Coram: VENKATARAMA AYYAR J., Syed Jaffer Imam
In this case the Supreme Court of India, sitting on 17 November 1955, heard a petition filed by the Corporation of Calcutta against Mulchand Agarwalla. The judgment was authored by Justice Syed Jaffer Imam, who also constituted the bench along with Justices Aiyyar, T. L. Venkatarama and Justice Syed Jaffer Imam. The parties are identified as petitioner – the Corporation of Calcutta – and respondent – Mulchand Agarwalla. The decision is reported in the citations 1956 AIR 110 and 1955 SCR (2) 995. The statutory framework relied upon is the Calcutta Municipal Act, 1923 (Bengal Act III of 1923), specifically sections 363 and 488 together with Rule 62 of Schedule XVII.
The Court examined several questions. First, whether the Corporation of Calcutta was barred from instituting fresh proceedings under section 363 of the Act because it had previously initiated proceedings under section 488 read with Rule 62 of Schedule XVII. Second, whether the inconvenience of neighbours could be taken into account when deciding whether to order demolition under section 363. Third, whether the same set of facts could support distinct proceedings under two different statutory provisions that prescribed different penalties, and consequently whether such proceedings should be regarded as separate. Fourth, the meaning of the word “may” in section 363 – whether it implied a mandatory duty (“shall”) or retained discretion for the Magistrate. Finally, the Court considered the extent to which an order passed by a Magistrate exercising discretionary authority under section 363 could be interfered with by an appellate court.
The headnote summarised the Court’s findings. It held that the Corporation of Calcutta was not pre‑cluded from bringing a proceeding under section 363 merely because it had earlier acted under section 488 with Rule 62. The inconvenience of neighbours was held to be irrelevant to the decision of whether a demolition order should be made under section 363. The Court observed that when the legislature permits two separate sections to be invoked on the same facts and prescribes different penalties, it intends those provisions to operate as distinct remedies; therefore, absent a question under section 403 of the Code of Criminal Procedure, a proceeding under one section cannot be said to fall within the other. The word “may” in section 363 was interpreted as retaining discretion rather than imposing an absolute duty, so the Magistrate may or may not order demolition. The Court reiterated the settled principle that an appellate court may not disturb a discretionary order of a lower authority unless it is shown
In reaching its decision, the Court observed that the proceedings had been commenced within the period prescribed by law, that almost five years had passed since the building was completed, and that the public interest did not require demolition of the structure. The Court also noted that the appeal was filed on a certificate granted under article 134(1)(c) of the Constitution, with the purpose of obtaining a Supreme Court ruling on several questions of importance. The Court referred to the decision in Abdul Samzad v. Corporation of Calcutta ([1905] I.L.R. 33 Cal. 287) as relevant authority.
This appeal arose from criminal appeal number 60 of 1954, filed under article 134(1)(c) of the Constitution of India. The appellant sought review of the judgment and order dated 19 January 1954 of the Calcutta High Court in criminal revision number 865 of 1953, which itself arose from the judgment and order dated 29 April 1953 of the Third Municipal Magistrate, Calcutta, in case number 108‑A of 1951. Counsel for the appellant presented the case, while counsel for the respondent represented the opposite side. The judgment was delivered on 17 November 1955 by Justice Venkat Rama Ayyar.
The matter concerned an application filed under section 363 of the Calcutta Municipal Act, 1923, seeking demolition of certain constructions because they had been erected without prior permission and in violation of the building rules. The respondent owned house number 36, Armenian Street, Calcutta. On 28 October 1950 the Corporation’s Building Inspector discovered new masonry work being undertaken on the fifth storey of that house and immediately served a notice under section 365 of the Act directing the respondent to halt all further construction pending an application to the Magistrate under section 363.
The High Court’s order dated 9 April 1954 described the subsequent conduct as a “hide‑and‑seek” game. After receiving the notice, the respondent stopped work for a few days, leading the Inspector to believe that no further construction would occur. When the Inspector reduced the frequency of his inspections, the respondent resumed the work. On 7 November 1950 the Inspector returned to the site and found that construction was continuing, prompting the posting of a police constable under section 365(3) to keep watch. The constable remained in place until 10 November 1950, when the respondent wrote to the Corporation stating that he would not proceed further. The police watch was withdrawn after the respondent paid a charge of Rs 40.
Nevertheless, on 7 December 1950 the Inspector again inspected the premises and observed that construction was still being carried out. Consequently, a police constable was posted again to maintain a watch over the site.
After a constable had again been posted for watch, the appellant filed a complaint before the Magistrate on 13‑12‑1950 invoking section 488 read with Rule 62 of Schedule XVII and alleging that the respondent had constructed two rooms on the fifth storey without obtaining the required permission. Section 488(1)(a) stipulated that any person who committed an offence by contravening any provision listed in the first column of the annexed table would be liable to a fine as specified in that table. Rule 62 required that no new building could be erected unless the Corporation had first granted written permission for its execution. The Magistrate heard the complaint on 11‑4‑1951; the respondent pleaded guilty and was ordered to pay a fine of Rs 200. While those proceedings were still pending, the Corporation examined the respondent’s construction and concluded that it violated Rules 3, 14, 25 and 32 of Schedule XVII. Consequently, the Corporation decided to pursue action under section 363 and served a notice on the respondent asking why demolition proceedings should not be instituted. The respondent appeared through counsel on 13‑2‑1951, and after hearing the appellant, the Corporation resolved on 6‑3‑1951 to move the court for an order under section 363. The petition that gave rise to the present appeal was filed on 4‑4‑1951. There was a delay in serving the respondent; the actual service took place only on 17‑9‑1951, after which the matter was adjourned several times. Ultimately, on 29‑4‑1953 the Magistrate issued an order dismissing the petition. The Magistrate found no dispute that the building rules had been breached, but held that he possessed a discretionary power under section 363 to decide whether to order demolition. He concluded that demolition was not warranted because the construction on the fifth storey could not obstruct light or air, no neighbours had complained, and the respondent had already been fined under section 488, making a demolition order a double penalty for the same offence. The appellant challenged this order by filing a revision before the High Court of Calcutta. Justice K. C. Chunder heard the revision and concurred with the Magistrate, emphasizing that the court’s discretion under section 363 did not compel a demolition order, particularly when the Corporation had already pursued penalty proceedings under section 488 for the breach of Rule 62. He also remarked on the Corporation’s undue delay in filing the application and noted that no complaint had been received from the locality, and therefore dismissed the revision.
It was noted that no complaint had been received from the neighbourhood. Accordingly, the revision petition was dismissed. The appellant then sought leave to appeal to the Supreme Court under article 134(1)(c). The application for leave was heard by the Chief Justice and another Justice. While considering the application, the Court observed that two matters of general importance required its determination. The first matter concerned whether the Corporation was barred from initiating proceedings under section 363 of the Act because it had earlier instituted proceedings under section 488 of the Act together with Rule 62 of Schedule XVII. The second matter concerned whether the inconvenience to neighbours should be taken into account when deciding whether a demolition order should be made under section 363. After reviewing these issues, the Court granted leave under article 134(1)(c), and therefore the present appeal is before this Court.
The initial issue for determination is whether the present proceedings under section 363 are prohibited because an application had previously been filed under section 488. Both parties agree that the statute does not expressly provide such a bar, but the respondent argues that the proviso to section 363 implies a prohibition where the Corporation has already instituted proceedings under section 493. Although the appellant did not commence proceedings under section 493, the respondent maintains that the proceedings brought under section 488 essentially fall within the ambit of section 493, and thus the proviso should apply. Section 493 provides that if a new building is erected without the Corporation’s written permission, the owner may be fined up to rupees five hundred. The same provision contains a proviso stating that where an application has been made under section 363, no further proceeding shall be instituted under section 493. By reading the two provisions together, it appears that the two proceedings are intended to be mutually exclusive. The respondent therefore contends that a prosecution under section 488 for breach of Rule 62 of Schedule XVII is, in substance, a prosecution under section 493(a), making the proviso to section 363 applicable. The Court, however, cannot accept this argument. When the Legislature provides that, on the same facts, proceedings may be taken under two different sections and prescribes different penalties for each, it intends the provisions to operate as distinct remedies. In the absence of any question arising under section 403 of the Code of Criminal Procedure, a proceeding under one section cannot be treated as falling within the other. The penalty under section 488 for breach of Rule 62 is a fine not exceeding rupees two hundred, whereas the penalty for the same breach under section 493(a) may reach rupees five hundred. Consequently, it would be contrary to the legislative intent to treat the two sections as identical or to extend the limitation in the proviso to section 363 to cover proceedings under section 488.
The Court observed that the maximum fine that may be imposed under section 488 for a breach of rule 62 of Schedule XVII is limited to Rs 200, whereas the fine that may be imposed for the same offence when charged under section 493(a) may extend to Rs 500. Consequently, it would be contrary to the legislative intent to treat a proceeding under section 488 as if it were essentially the same as a proceeding under section 493, and then to subject such a proceeding to the limitation set out in the proviso to section 363. The Court explained that if the legislature had intended that a proceeding under section 488, read with rule 62 of Schedule XVII, should preclude a proceeding under section 363, it would have expressed that intention expressly, just as it had done with reference to proceedings under section 493. To accept the respondent’s contention would therefore require reading into section 363 a restriction that does not appear in its wording, and the Court could not adopt such a construction.
The respondent’s counsel further argued that the Corporation, having instituted proceedings under section 488, could have applied for a demolition order at that stage, and because it chose only to accept the fine and did not seek demolition, it should now be barred from seeking demolition relief in the present suit. That argument relied on section 536, which provides that when a person is liable for an unlawful work, a magistrate, in his discretion and subject to sections 363, 364 and 493, may order the person both to pay the fine and to demolish the work. The Court noted that the Chief Justice, in an order dated 9‑April‑1954, had expressed doubt as to whether the Corporation could seek a demolition order when it had filed an application under section 488 for a breach of rule 62. The Court shared that doubt. Rule 62 specifically prohibits the erection of a building without prior permission; the breach is deemed to have occurred at the moment construction commences, irrespective of whether the building is later completed or left unfinished. Accordingly, a question of demolition does not arise from a breach of rule 62 alone. Demolition can be ordered only when the building has been erected or completed in violation of the terms of the permission, or in breach of any other provision of the Act or its rules.
The Court then examined the table annexed to section 488, which prescribes a fine of up to Rs 200 for a breach of rule 62, but contains no comparable provision for breaches of rules 3, 14, 25 and 32 of the same schedule. By contrast, section 363(1) provides that when a demolition direction is sought, a fine of up to Rs 250 may be imposed. The Court pointed out that an application for demolition under section 363 may be made on any of three grounds: (1) that the building was erected without permission; (2) that the building was erected or completed contrary to the terms of the permission; or (3) that the building was erected or completed in violation of the Act or its rules. The Court concluded that, because the present application under section 488 was based solely on a breach of rule 62, no demolition order could be lawfully issued under section 536.
In this case, the Court explained that an application for demolition could be based on three different grounds. The first ground was that the erection of the building had been commenced without any permission. The second ground was that the building had been erected or completed in a manner that did not follow the terms of the permission that had been granted. The third ground was that the construction had been carried on or completed in breach of any provision contained in the Act or in the applicable rules. The Court observed a distinction between an application founded on the first ground and one founded on the second or third grounds. When the charge concerned the commencement of construction without permission, the question of demolition did not arise at that stage because the building was not yet completed and therefore could not be demolished. Conversely, when the charge related to construction that had been carried on or completed in violation of the permission terms or of the statutory provisions, the matter of demolition could indeed arise.
The Court further held that, when an application was made under section 488, the possibility of issuing a demolition order under section 536 depended on the specific ground on which the application was based. In the present matter, the application had been filed solely on the basis of a breach of Rule 62 of Schedule XVII. Consequently, the Court concluded that no demolition order could be issued under section 536 because that provision was not applicable to a case founded only on the breach of Rule 62. The Court noted that it was irrelevant that the building had been completed at the time the order was passed on 11‑April‑1951, since the power to order demolition under section 536 depended on the nature of the charge actually pleaded in the petition, not on any subsequent development of facts.
The Court also addressed the argument that, even if the Magistrate possessed the authority under section 536 to order demolition, the appellant should be barred from seeking a demolition order under section 363 because the Magistrate had previously failed to do so, or because the Corporation had not asked for such an order in the earlier proceedings. The Court found that no principle of constructive res judicata applied, and that nothing in the statute prohibited the appellant from invoking relief under section 363. Accordingly, the Court declined to uphold the contention that the prior proceedings under section 488 precluded the present petition under section 363.
Finally, the Court turned to the issue of whether the order passed by the Municipal Magistrate and affirmed by the learned Judge on revision could be challenged on its merits. The respondent argued that the Magistrate exercised discretionary power under section 363 to decide whether to issue a demolition order, and that the Court of Appeal should not interfere with that discretion, especially after the High Court had concurred. The Court examined the language of section 363, which states that the Magistrate “may” pass an order for demolition. Although the word “may” can sometimes be interpreted as mandatory, the Court determined that in this context it conveyed discretion rather than a compulsory duty. Thus, the Court agreed with the respondent that section 363 granted the Magistrate the discretion to decide whether or not to order demolition.
In the present matter the Court explained that the provision does not compel an automatic demolition order simply because a building has been erected without permission, completed contrary to the terms of the permission, or constructed in breach of the building rules; rather, the provision gives the Magistrate a genuine discretion to decide whether to issue such an order. The Court referred to the construction adopted in Abdul Samad v. Corporation of Calcutta, which interpreted section 449 of the Calcutta Municipal Act (Bengal Act III of 1899) in a manner that corresponds to the language of section 363 of the present Act. By reenacting section 363 in the same terms as section 449, the legislature was understood to have accepted the interpretation given in Abdul Samad v. Corporation of Calcutta as correctly reflecting its intention. Consequently, the Court held that the word “may” in section 363 should not be read as “shall”; it confers a discretionary power on the Magistrate to either pass or refrain from passing a demolition order. The Court then turned to the question of whether the exercise of that discretion by the lower courts could be reviewed. It reiterated the well‑settled principle that when the legislature entrusts an authority with discretionary power, an order made in the exercise of that discretion is generally not subject to interference by an appellate court, except where the order is shown to be based on a mistake of fact or a misapprehension of the applicable principles. The appellant argued that the orders appealed from were indeed founded on such mistakes and misapprehensions and therefore should be set aside, and the Court indicated that this contention required examination. The lower courts had based their orders on three grounds: (1) that the appellant had delayed considerably in moving the matter; (2) that, under the earlier proceedings under section 488, the respondent had been fined and thus a demolition order was unnecessary; and (3) that the breach of the building rules had caused no public inconvenience and no complaint had been received from local residents. The Court found that the material placed before it did not demonstrate any substantial delay on the part of the appellant. The learned Judge had previously stated that the demolition proceedings were initiated after the fine imposed on 11‑April‑1951 in the section 488 proceedings, but the Court identified this as an error. In fact, the proceedings under section 363 had been commenced as early as February 1951 when a notice was issued to the respondent under that provision, and the petition was filed in court on 4‑April‑1951. While it was true that the proceedings remained pending for a considerable period, the Court noted that this delay could not be attributed to the Corporation but was rather due to the respondent’s conduct.
The proceedings had been pending for nearly two years before the Magistrate, but, as observed by the learned Chief Justice, the delay was attributable not to the Corporation but to the respondent. Both lower courts based their orders on the reasoning that because the Corporation had initiated action under section 488 and a fine was imposed on the respondent, demolition as an additional penalty would be unjust. That reasoning rested on the assumption that the present proceedings were founded on the same offence for which the earlier section 488 petition had been lodged. However, as previously pointed out, this assumption is inaccurate because the two sets of proceedings address distinct violations. The action under section 488 concerned the erection of a building without obtaining required permission, whereas the current action under section 363 seeks demolition for breaches of the building rules that are unrelated to Rule 62. Consequently, the respondent is not being punished twice for the same default, as the two offences are separate in nature. The learned judge noted that this case was not suitable for exercising discretion in favour of the appellant because the earlier section 488 proceedings neither requested nor obtained a demolition order from the Magistrate. That observation is linked to section 536, which we have previously held to be inapplicable to the circumstances of the present case. Moreover, section 536 provides that a Magistrate may impose both a fine and an order for demolition, indicating that the existence of a fine does not, by itself, constitute a sufficient reason to refuse demolition. The lower courts were also swayed by the absence of any complaint from neighbours regarding the building’s erection. It must be remembered that building regulations are enacted primarily for the public benefit, and when these regulations are breached, the deciding factor is whether the violations are minor or serious. If the breaches are merely formal or trivial, a fine may adequately address the situation; if they are serious and likely to adversely affect public interests, demolition becomes appropriate. Whether any member of the public has lodged a complaint is not determinative, although such a complaint, if present, would serve as evidence of public harm. Accordingly, the orders of the lower courts rest on errors and misdirections and therefore cannot be upheld clearly. The respondent’s conduct, characterized by a hide‑and‑seek approach to completing construction in deliberate defiance of the law, warrants severe action.
The Court noted that severe action was warranted because it would be most unfortunate and would seriously damage the public interest if a principle were allowed to develop whereby a person could disregard building regulations, erect a structure illegally and escape liability merely by paying a fine. The Court explained that such a situation would provide a strong basis for ordering the demolition of the offending building. However, the Court observed that nearly five years had passed since the construction in question had been completed. Although Section 363(2) of the governing statute provides that an application for demolition may not be filed after five years from the date of the work, the Court held that this provision did not bar the present proceedings because the demolition application had been lodged within the prescribed time limit. Nevertheless, the Court expressed the view that, even after the passage of five years, ordering demolition would no longer serve the public interest in the present circumstances. The Court also took into account that the orders under consideration would not have reached it in the ordinary course of appellate review; they were brought before the Court only because the appellant sought a decision on certain important questions, a purpose which the Court found had now been achieved. After weighing all of these factors, the Court concluded that the case was not suitable for an order of demolition and further held that the lower court’s punitive directions against the appellant were without justification. Accordingly, the appeal was dismissed.