Chairman, Kalimpong Municipality vs R.M. Prosad

T.P. Mukherji, J.—The Chairman of the Kalimpong Municipality with the special leave of the Court u/s 417(3) of the Code of Criminal Procedure filed this appeal against the acquittal of the Respondent in a case u/s 501 of the Bengal Municipal Act. The short allegation against the accused in the case was that he was the owner of a four-storied building within the Kalimpong municipal area and that without the sanction of the Municipality he started construction and also completed the construction of a fifth storey above the fourth storey. The defence in the case was that the construction was in effect an addition to the building and that as the building rules framed by the Kalimpong Municipality do not provide for any sanction for construction, which is an addition to an existing building, no offence could have been caused by the construction, which is the subject-matter of the charge u/s 501 of the Bengal Municipal Act in the case.

The learned Magistrate held that although the building rules of the Municipality might not have made any specific provision for material additions and alterations to existing buildings, there is Section 326 of the Bengal Municipal Act which would make such additions or alterations without the sanction an offence, and in this view of the matter he convicted the accused and sentenced him to pay a line of Rs. 500, in default, to suffer simple imprisonment for two months.

The accused took an appeal to the Sessions Judge, who found that Section 326 of the Bengal Municipal Act had not been made applicable to the Kalimpong Municipality by an appropriate order of the State Government u/s 312 of the Act. As, according to the learned Sessions Judge, the building rules of the Municipality do not make provision for obtaining sanction to additions to and alterations in buildings and as the impugned construction according to him was nothing but a material addition to the building, the mischief of Section 501 of the Act would not be attracted to the case. On this finding he set aside the order of conviction and sentence made by the learned Magistrate and acquitted the accused. It is the propriety of this order of acquittal which is the subject-matter of the present appeal.

According to Mr. Banerjee, appearing in support of the appeal, the new construction, which is an addition to an existing structure, is also a ''building'' within the definition of the term as given in Section 3(2) of the Bengal Municipal Act, and as under the building rules of the Municipality no building can be constructed without the permission of the commissioners, the learned Judge fell into an error in finding that no offence was proved in the case.

Mr. Ghosh, appearing for the Respondent, contends that neither Schedule VI nor Section 315, 316-327 and 329 having been made applicable to the Kalimpong Municipality by the State Government in accordance with the provisions of Section 312, B.M. Act, and the by-laws framed by the Municipality being the only guide lines in the matter and the by-laws not having made any provisions in regard to material additions and alterations, this particular structure, which has been found by both the Courts below to constitute a material addition to an existing building, would not attract the mischief of Section 501 of the Act. Amplifying this argument Mr. Ghosh contended that Section 328, B.M. Act, gives the commissioners of a municipality, to which the provisions of Schedule VI are not extended u/s 312, the power to frame by-laws for the control of the erection of buildings and of material additions and alterations to buildings and if the Kalimpong Municipality in the by-laws framed by it did not make any provision in respect of material additions and alterations and if the impugned construction be a material addition to an existing building, no offence can be said to have been committed by making that construction. Another objection taken by Mr. Ghosh in this connection is that u/s 328 the commissioners are empowered to frame by-laws at a meeting of theirs and there is nothing to indicate that the by-laws of the Kalimpong Municipality had been framed by the commissioners at a meeting. In effect, the argument of Mr. Ghosh boils down to this that the construction being at best an addition to an existing building, which is not prohibited by the by-laws framed by the Municipality, no municipal sanction was necessary for the purpose and that the learned Judge in the Court of Appeal below was perfectly justified in his finding that no offence had been proved.

It is not in dispute that the Respondent has constructed a fifth storey above the fourth storey of the building within the municipal area of Kalimpong. When the construction was first detected by an overseer of the Municipality, he made a report, Ex. 2. to the Chairman drawing his attention thereto. This was on March 3, 1965. Exhibit 3 is the notice dated March 4, 1965, served by the Chairman on the present Respondent directing him to stop the construction and to show cause by a certain date as to why he should not be prosecuted. Exhibit 4 is the Respondent''s reply to the notice. He stated that he was submitting a plan for the construction which could not be submitted so long due to certain reasons, that no construction is going on and that early sanction of the plan might be given. Exhibit 5 is the proceeding of a meeting held by the commissioners in this connection. The commissioners found that the fifth storey which had been constructed was in violation of the building rules and that the plan submitted could not be sanctioned. This was on April 27, 1965. On May 18. 1965 the present prosecution was launched. Both the Courts below proceeded on the footing that the new construction that had been made was a material addition to an existing building. The question that was raised was whether this construction was hit by the building rules of the Municipality. As obviously the rules in Schedule VI had not been made applicable thereto by the State Government and as the learned Sessions Judge has found that the by-laws of the Municipality have not provided for additions and alterations, no offence according to him could be said to have been committed thereby. It is the correctness of this finding which is challenged by Mr. Banerjee appearing on behalf of the Municipality.

Section 501 in Clauses (a) to (c) speaks of erection of a new building without a written permission of the commissioners. The following paragraph deals with alterations or additions to any existing building in breach of Section 326 of the Act.

u/s 312(2) of the Act. Section 326 would not apply to municipalities to which the rules in Schedule VI have not been extended. As these rules were not extended to the Kalimpong Municipality, Section 326 would, inter alia, not be attracted to it. The learned Sessions Judge was correct in his finding in this regard. It follows, therefore, that alteration of or addition to an existing, building as contemplated in Section 501 of the B.M. Act in relation to the Kalimpong Municipality would not be an offence under the section. The question, therefore, is whether the new construction can be said to be a ''new building'' u/s 501.

The term ''building'' has been defined in Section 3(2) of the Act as including a house, out-house, stable, privy, urinal, shed, hut, wall...and any other structure.... It would appear thus that any sort of structure would be a building under the Bengal Municipal Act and the construction of any structure would require the sanction of the commissioners of the Municipality and the commencement of any such structure without such sanction would be an offence u/s 501 of the Act.

In this connection, Mr. Ghosh contended that if any sort of structure be a building under the Act there was no necessity for making special provisions for alterations or additions to an existing building. The answer to this argument may very well be that all alterations and additions may not be covered by the definition of the term ''building'', and as a measure of abundant caution the Legislature thought it prudent to include alterations and additions in Section 326 and bring it within the mischief of Section 501. It is true that Section 328 of the Act empowers the municipal commissioners to frame rules for the control of additions and alterations. But if the commissioners of any municipality do not choose to bring additions and alterations within the purview of their building rules that would not take away from the term ''building'' the connotation given to it in its definition in the Act. It may very well be that the commissioners of a municipality may choose to ignore minor additions and alterations to an existing building. But if such additions and alterations are such as to be covered by the definition of the term ''building'' the rules framed in connection therewith would certainly govern such additions and alterations. The fact that the Kalimpong Municipality in this case did not specify additions and alterations within the ambit of the by-laws framed by it would not take away additions and alterations which may be covered by the definition of the term ''building'' from the purview thereof. To hold otherwise would be to permit the owner of any building to throw the by-laws to the winds by obtaining permission from the Municipality for a construction permitted by the rules and after a time to add to that construction in violation of the building rules of the Municipality. Of course, if the specific constructions cannot be made to be governed by the by-laws or by the Bengal Municipal Act, such a situation has to be tolerated; but in my view, so far as the present case is concerned, such a situation did not arise.

One full storey has been added to an existing building in violation of the by-laws of the Municipality as we find from the resolution of the municipal commissioners, Ex. 5, in the case. It is a structure undoubtedly and is a new structure. There is no escape from a finding that it is also a ''new building'' under the Bengal Municipal Act. I find that the construction undertaken by the Respondent in the case is a new building and that it was commenced without obtaining the written permission of the commissioners and, as such, the Respondent would be liable for the construction u/s 501 of the Act. The learned Sessions Judge did not direct his attention to this aspect of the matter in coming to his finding.

As regards the other contention of Mr. Ghosh that the bylaws were not framed by the commissioners at a meeting, a reference may be made to the notification of the State of West Bengal, No. 6282/M3R-14/54, dated July 17, 1954, which mentions that the by-laws were issued by the Municipality in exercise of the power conferred by Sub-section (1) of Section 328 of the Bengal Municipal Act. As such by-laws could be issued only by the commissioners at a meeting, the statutory duty in this regard must be held to have been duly done. Rule 27 of the rules provides for erection of a masonry building. The term ''building'' in the rules must bear the same connotation as in the definition in the Act itself. As the erection of the fifth storey was not made with the sanction of the Municipality the mischief of Section 501 of the Bengal Municipal Act must be held to have been attracted thereto.

In the above view of the matter, I find that the Respondent was guilty of an offence u/s 501 of the Act. I, accordingly, convict him thereunder and sentence him to pay a fine of Rs. 500, in default D.W. will issue. The appeal is allowed in the above terms.