CORPORATION OF CALCUTT A v. Mule hand

is an appeal against the judgment of the High Court of Calcutta affirming the order of the Municipal Magistrate, whereby he dismissed an application filed by the appellant under the Calcutta Municipal Act, 1923, section 363 of for demolition of hereinafter referred to as certain constructions on they had the previous permission of the been erected ·without authorities and in contravention of the prescriptions laid down in the building rules. the Act, the ground The respondent the owner of house No. 36, the Build Armenian Street, Calcutta. On 28-10-1950 ing Inspector of the Corporation discovered that some new masonry structures were being constructed on the fifth storey of that house. A notice under section 365 of the Act was immediately served on the respon further con- dent directing him to stop forthwith 1955 Corporation of Calcutta v. Mulchand AgarwaUa V enka14ram/J AJyar ]. 2 S.C.R. SUPREME COURT REPORTS belief Inspector to appeal the premises daily, respondent paying Rs. 40 being therefor. On 7-12-1950 structions pending an application the Magistrate thereon under section 363 of the Act. What followed is graphically described by the learned Chief Justice of the High Court in his order dated 9-4-1954 granting this Court, as a hide-and-seek game. On receipt of the notice, the respondent stopped the work for a few days, and thereby lulled the Build In ther cbnstructions would be made. When inspect spector ceased the work, and on 7-11-1950 when respondent resumed the Inspector came again on the scene, he found the construction was being proceeded with. A police constable was then posted for watch under section 365 there till 10-11-1950, (3) of the Act, and he continued on which date the respondent wrote to the Corpora tion that he would not proceed further with the con struction. The police watch was thereupon withdrawn the charges on the payable Inspector again the construc inspected tion was being proceeded with, and had a constable posted again for watch. On 13-12-1950 the appellant. the Magistrate under sec lodged a complaint before read with Rule 62 of Schedule XVII charging tion 488 in the Section that whoever commits any offence 488(1) (a) enacts sections or rules of the Act mentioned thereto, shall be column of punished with fine as specified in the said table. Rule that the erection of a new building shall 62 provides the Corporation not be commenced unless and until the execution of have granted written permission for the same. The complaint was heard on 11-4-1951. The respondent pleaded guilty, and was fined Rs. 200. the proceedings under section 488 were pen the Corporation would ap ding before the Magistrate, pear to have examined the nature of the constructions put up by the respondent, and they con travened Rules 3, 14, 25 and 32 of Schedule XVII, respondent with constructing storey without obtaining .contravening any provisions of the premises, and found two rooms permission. annexed While 1955 Corporation:ttf Calcutta v. Mutchand <'1%arwalla v enkatarama Ayyar J. .-- 998 SUPREME COURT REPORTS [1955] to the appeared in serving respondent issued a notice ar,d after hearing him, to move and decided to take action under section 363. They accordingly respondent to show cause why action should not be taken under that sec tion. The counsel the appellant de 13-2-1951, cided on 6-3-1951 the court for an order under section 363, and the petition out of which the filed on 4-4-1951. present appeal arises, was actually the respondent, and after There was delay he was actually served which was on 17-9-1951, case underwent several adjournments, and finally on 29-4-1953 · the Magistrate passed an order dismissing the petition. There was no dispute that the building rules had been contravened. The Magistrate, how ever. held that he had a discretion under section 363 whether he should direct demolition, and was not a fit case in which an order should be made the constructions being on the for demolition, because light and air and the neighbours, and there was thereby no complaint locality, and from the residents of the that as the respondent had already been fined in pro for demolition ceedings under section 488, would be to penalise him the same offence. an order twice over for storey could not obstruct inconvenience Against this order, ''nder sectior, 363 the Corporation had the appel!ant preferred a revi sion to the High Court of Calcutta. That was heard bv K. C. Chunder, J. He agreed with the Magistrate the court had a discretion it should order demolition or not, and that whether taken proceedings under sec imposed on tion 488 and was content to have a fine it would be for breach of Rule 62, the respondent start proceedings thereafter unjust under section 363 for the further relief of demolition of the bu; Jclfog. He also commented on the undue delay on the part of the Corporation in taking out application, and took into account that no complaint had been In the result, he dismissed the revision. to permit received locality. The appellant applied under article 134(1) ( c) for to appeal to this Court. Chakravarti, C. J. and 1S.C.R. SUPREME COURT REPORTS 999 it was desirable two questions of general to have S. R. Das Gupta, J. who heard this application, con importance sidered arose on which the decision ot this Court, viz., (1) whether the Corporation · was precluded from taking proceedings under section 363 taken proceedings of the Act by reason of its having thereto under section 488 of the Act read with Rule 62 of Schedule XVII, and (2) whether qu:::stion of inconvenience relevant for the purpose of deciding whether an order for de molition should be made under section 363 of leave under article Act. They accordingly granted 134 (l)(c), and is now the appeal is how before us. to neighbours was 1955 Corporation of Calcutta v. Mulchand Agarwal/a Venkatarama Ayyar ]. to be substantially is conceded it is argued fall within the appellant The first question that arises to section 363 for our determination is whether the present proceedings under section 363 the application whith was ar::: barred by reason of that there is It hled under section 488. notnmg express in the · statute enacting such a · bar, it is but it is contended implied from the that "where the Corporation proviso have instituted proceedings under section 493, no ap piication shall be made under section". Admit instituted· no proceedings under tedly, that proceedings under section 493 ; but section 488 section 493, and that the proviso should to be if the erection of any applicable. Under section 493, new building the owner of. written permission of the Corporation, the building shall be liable to a fine which may extend up to Rs. 500. Then, that where an application had been made under section 363, no proseeding shall be instituted under this section. This to section 363- set out corresponds is clear above, and two sections are the proceedings mutually exclmive. Now, is that a prosecution under section 488 for pondent breach of rule 62 of Schedule XVII is, in essence, a p;-o<ecution under section 493( a), and that, therefore, to section 363 becomes applicable. We are the proviso two provisions, commenced without obtaining the contention of the there is a proviso therefore be held reading the proviso 1955 Corporation of Caltutta v. Mulchand Agarwalla Y enkataroma .dyyarj. 1000 SUPREME COURT REPORTS [1955] it obviously agree with intends that on the same this contention. When unable facts proceed Legislature provides ings could be taken under two different sections and those sections are not the the penalties provided them as distinct, same, to treat therefore, where no question under section 403 and, of the Code of Criminal Procedure arises, proceedings taken under one section cannot be treated as falling within the other. The penalty prescribed in section 488 for breach of rule 62 of Schedule XVII is fine up the penalty provided to the limit of Rs. 200, whereas is fine which for the same offence under section 493(a) may extend · to Rs. 500. consonance with hold that proceedings under section 488 are in sub the same as proceedings under section 493, so stance as to be subject in the pro If the intention of the Legislature was that proceedings with rule 62 of Schedule XVII should bar proceed it could have said so expressly ings under section 363, taken under as it did with reference to proceedings to the contention of the res section 493. To accede pondent would be to read into section 363 limitations which are not to, be found there. We cannot accept such a construction. therefore be the Legislature taken under section 488 to the disability enacted to section 363. intention of It will not for demolition of the building It was next argued by learned counsel for the res that it was open to the Corporation to have pondent in the proceed ings taken by it under section 488, and as it did not ask for it and was content with the imposition of fine, it was precluded from claiming present proceedings. This argument is based on sec tion 536, which is as follows : that relief "When under law made thereunder any person is liable, of any unlawful work,- this Act or under any rule or by in respect ( a) to pay a fine, and (b) to be required to demolish the work, a Magistrate may, subject to the provisions of sections 363, 364 and 493, direct the said person to pay the fine and also to demolish the work". in his discretion and 1955 Corporation of Ca/&utta v. Male hand Agtzru1al/a V mkatara,,,. ,V)'ar J. 2S.C.R. SUPREME COURT REPORTS 1001 in the that Rule, to whether table annexed therefore arise with for a demolition order, when In his order dated 9-4-1954, the learned Chief Jus tice expressed a doubt whether the Corporation could instituting an application under section 488 for breach of Rule 62 of Schedule XVII. We are inclined to share this doubt. is the erection of a building What Rule 62 prohibits without permission, and under the breach the erection has commenced, with is complete when is being the construction out reference carried on or completed. A question of demolition cannot reference to a breach of It can arise only when the construction of the Rule 62. building is carried on or completed otherwise than terms of the permission or accordance with breach of any of the provisions of the Act or the rules. to section 488, while a Now, breach of Rule 62 of Schedule XVII is made punish there is able with fine which may extend to Rs. 200, no similar provision with reference to breach of Rules 3, 14, 25 and 32 of that Schedule. But there is, instead. a provision that when a direction is asked for under for demolition, an order can be passed section 363(1) to Rs. 250. Under imposing fine which may extend that section, it should be noted, an application for an order for demolition can be made on three grounds, that the erection of building has been com viz., (1) it has been car menced without permission, in accordance ried on or completed otherwise that it has with the in breach of the provi been carried on or completed sions contained in the Act or the rules. But there this difference between an application based on ground No. 1 aforesaid and one founded on grounds Nos. 2 and 3, that while a question of demolition cannot arise with reference the charge is com mencement or the construction without permission that stage no question of demolition of a and at building necessarily arises, regards the latter. Therefore, when an application is made under section 488, whether an order could be made under section _536 for demolitio'.1 will depend on the ground on which it is founded. And, where, as in the terms of the permi; sion, or (3) to the former when it does arise as (2) that 1955 < Corporatio1t of• Calcutta v. Mulchand Agarwalla - V"""4taroma Ayyar J. . . SUPREME COURT REPORTS 1002 [1955] It is immaterial the application was based solely and present case, exclusively on a. breach of Rule 62 of Schedule XVII, no order could have - been passed for demolition under section 536. for the present purpose that. the building had . been completed when the order was passed on 11-4-1951 on the ·application under sec the power to pass an order under tion 488, because •ection 536 would depend on what the charge as actually laid in the petition was and not on what it might have been. • ) But even if the Magistrate had the power under sec tion 536 to order demolition of the · building, .. we can not hold that ·the appellant is precluded from asking · for such an order under section 363 merely by reason of the fact · that the Magistrate had failed · to pass such the Corporation . did not ask an order, -or even -There is ' no question for it in the prior proceedings. the application of any principle . of -constructive res judicata, and there is nothing in the statute which bars the appellant from claiming relief under section \Ve cannot therefore· uphold the contention that 363. the appellant is precluded in any manner by the prior instituting proceeding.s taken under the present petition under section 363. section 488 from In this view, the point for decision is whether the order passed by the Municipal Magistrate and · affirmed is open to attack on by the learned Judge in revision the merits. The respondent · contends the Magis trate has under section 363 a ·discretion whether · he should pass an order for demolition or not, and that this Court should not in appeal interfere \vith the exercise of that discretion especially when it has been concurred langua'ge of section 363 is that the Magistrate may pass an order for demolition of the building, and the word 'may' mig!it in some contexts be though 'shall', that is not ·the sense in constructed as meaning which it is used resp_ondent that when a building is shown to have been erected with in ac out permission or completed otherwise . cordance with the terms of the permission· or in breach in section 363. We agree with section 363 does · not the High Court. Now, require in by 1955 Corporation of Calcutta v. MulchanJ Agarwalla V enkatarama Ayyar ]. 2 S.C.R. SUPREME COURT REPORTS 1003 the building its demolition rules, an order for should be made as a matter of course. In our opinion, it does give the Magistrate a discretion whether he should or should not pass such an order. That was in Abdul Samad v. Corporation the construction put ) on section 449 of the Calcutta Munici of Calcutta( 1 pal Act, (Bengal Act III of 1899) which com".sponds to section 363 of the present Act on language which is, so far as the present matter is concerned, the same. in the same terms In re-enacting it must_ be taken that accepted the interpre in Abdul Samad v. Corporation of tation put on them Ca!cutta( 1 representing its intention. It ) >hould accordingly be held 'may' the word sectio11 363 does not mean "shall'', and that the Magis strate has under that section a discretion whether he should pass an order for demolition or not. section 449 of Bengal Act III of 1899, the present section legislature has as correctly is, the power thr exercise of to an authority Then the question is whether in exercise of that discretion discretion by the courts below is open to review by It is a well-settled principle this Court. that when the legislature entrusts its discretion, an order passed by pass an order that authority to be interfered with by an appel general, not liable to have been based it can be shown late court, unless on some mistake of fact or misapprehension of principles applicable thereto. The appellant contends that the orders under appeal are based on mistakes to b('. and misapprehepsions, and are therefore re:ersed, and that contention must now be examined. The grounds on which the orders of the courts below there has been considerable are based delay on that as in the proceedings taken under the matter, section 488 respondent has been fined, an order for demolition was not called for, anci (3) that the breach of the building in any resu:ted to the public, nor has there been ar.y inconvenience complaint locality about this. The materials placed before us do not show -are (1) the part of the appellant residents of the rules has not in moving (2) liable (I) [1905] I. L.R. 33 Cal. 287. g-85 S. C. India/59 1955 CorpMatioa of Calcutta v. Mulch and Agarwalla V tnkatarama Ayyar J. 1004 SUPREME COURT REPORTS [1955] It responsible the provisions of section 488. This for demolition were far from it appears to the imposition of fine on 11-4-1951 that there has been any great delay on the part of that the the appellant. The learned Judge has stated taken sub present proceedings sequent proceedings under is a mistake. The proceedings under section 363 had been com mtnced as early as February 1951 when notice was issued to the ,respondent under filed in court on section, and the petition was actually the proceedings were pend 4-4-1951. ing for nearly two years before the Magistrate, but as observed by the Corporation being have been the victim of delay on the part of the res pondent. Both learned Chief Justice, it, the courts below have main! y based the Corporation having taken order on the fact that proceedings under section 488 and a fine having been it would be unjust to im imposed on the respondent, the same offence by way pose a further penalty of demolition. The assumption on which reason ing rests is that the charge on which the present pro ceedings have been taken is the same as that on which the petition under is not correct, The pro already pointed out, for erecting ceedings under section 488 were taken a building without permission, whereas the present for breaches of proceedings are independent of the the building rules, which are quite charge under Rule 62, and the respondent twice over for the same default. fore not punished this was not a fit The case for exercising favour of the discretion appellant, becaus~ in the prior proceedings under sec tion 488, for demolition, nor was such an order made by the Magistrate. That is obviously with refernece to section 536 which we have held to be inapplicable to the present case. More the Magistrate over, when that section enacts could both building, that a imposed should not by itself and with- fine has been impose a fine and order demolition of section 488 was learned Judge observes it did not ask for an order substantially that clearly laid. But, indicates that the 2S.C.R. SUPREME COURT REPORTS 1005 out more, be taken as sufficient ground for demolition. refusing 1955 Corporatio11 of Calcutta v. Mule hand Agarwal/a Y mkatarama Ayyar]. though interests of The pcsition, there was no influenced by It must be The courts below were also complaint from the erection of the building. the fact neighbours the building rules are en;1cted general membered those rules ly for the benefit of the public, and where have been violated and proceedings are taken for an order for demolition o£ the building under section 363, what has to be decided is whether the breaches are of in which case the a formal or trivial character, position of a fine might meet the requirements of case, or whether they are serious and likely to affect in which case it adversely for demolition. would be proper the public Whether there has been a complaint from the ques • would not as such be material for deciding there was one, it would be a piece of tion, evidence public have suffered by reason of the breaches. therefore, interests of the public, to pass an order in deciding whether for severe action. is that the orders of the constru~rions in deliberate defiance of courts below are based on mistakes and misdirections, and cannot be supported. The conduct of in com pondent in adopting a hide-and-seek attitude pleting It would be most un law calls fortunate, and the interests of the public will greatly that a per suffer, if the notion were son might with impunity break the building it t1Il and put up a construction and get away with justificatiGu payment of fine. All this would be good for making an order for demolition. But ·then, it is five years since now nearly the building was com though section 363(2) which directs that pleted, and no application instituted after from the date of the work does a lapse of. five years the proceedings have been not, the laose of started in time, we do not feel that after is called • for in all this take into account the bet that the orders in question would not have come before us in the normal course by way of appeal, time, an order for demolition interests of the public. We also for demolition shall be in terms, apply as to be encouraged 1955 CorPcration of Calcutta v. Mule hand Agarwal/a Venkatarama Ayyar J. 1955 November 23. 1006 SUPREME COURT REPORTS [1955] importance, and the deci were it not that the appellant desired sion of this Court should be obtained on certain ques tions of achieved. On a consideration of all the circumstances, that this is a fit case we do not think in which we should pass an order for demolition. We should, how ever, add that we find no the stric tures passed on the appellant by the court below. that purpose has justification In the result, the appeal is dismissed. IN THE MATTER OF D AN ADVOCATE OF THE SUPREME COURT. • [B. K. MuKHERJEA, C. J., S. R. DAs and VENKATARAMA AYYAR JJ.) Bar Councils Act-Misconduct in capacity other than professional -Jurisdiction of Court-Bar Councils Act (XXXVIII of 1926), s. JO-Supreme Court Rules, Order IV, Rule 30. Section 10 of the Bar Councils Act confers on the Court juris~ diction to take disciplinary_ action against an Advocate not merely for professional misconduct but any other misconduct committed in any other capacity as well and leaves it to the Court's discretion to t2ke such action as it thinks fit in any suitable case. < The Advocate-General of Bombay v. Three Advocates ([1934] I.LR. 59 Born. 57), In the matter of an Advocate ([1936] I.L.R. 63 Cal. 867) and In re a Pleader (I.L.R. [1943] Mad. 595), referred to. In re Thomas fames Wallace ([1866] L.R. I P.C. 283), and In re an Advocate of Benares (A.LR. [1932] All. 492), held inapplicable. Consequently, in a case where an Advocate figuring as an ac cused in a case under the Bombay Prohibiti9n Act was persistently rud!! to and contemptuous of the trial Magistrate and did all in his po\ver to hold up the trial and bring the administration of justice he ~'<ls guilty of misconduct and as such was liable to be suspended from practice. contempt, D in person M. C. Setalvad, Attorney-General India, as amicus curiae.