Rabindra Nath Mitra vs Tara Kumar Chakravarty

Lahiri, J.—This is a Rule directed against the order of a municipal magistrate of Calcutta, dated April 29, 1952, by which he has dismissed an application filed by the Corporation of Calcutta u/s 363 of the Calcutta Municipal Act. The Petitioners who have moved this Court and obtained the present Rule are owners of premises No. 101-B, Keshab Chandra Sen Street. They filed an application before the Corporation authorities alleging that the owners of premises No. 101-A, Keshab Chandra Sen Street, have erected an unauthorised structure on the north-western corner of their premises. Upon this complaint the Administrative Officer of the Corporation of Calcutta, after holding certain enquiries, passed the following order:

Provided 4 ft. space is left all along the northern side and owner pays sketch fees and wet work charges within one month, the case is withdrawn, failing to municipal magistrate.

Upon this order the opposite parties paid the sketch fees and wet work charges within the time limit but did not leave 4 ft. space all along the northern side and, therefore, the case was sent to the municipal magistrate for trial.

The learned municipal magistrate has dismissed the case upon the ground that no evidence has been adduced by the Corporation about the age of the alleged unauthorised structures and that, upon the evidence which has been adduced by the opposite parties, he was satisfied that the structures were in existence for long over five years. Against this order the Petitioners have obtained the present Rule and on behalf of the Petitioners it has been argued that the learned magistrate was wrong in holding that on behalf of the Corporation no evidence was adduced about the age of the unauthorised structures and that he has also erred in relying upon the evidence of the witnesses examined by the opposite parties inasmuch as the Corporation lawyer could not cross-examine them.

Before dealing with the merits of the Petitioners'' contention we have to consider a preliminary point which has been raised by Mr. Chakravarti, appearing for the opposite parties. Mr. Chakravarti has argued that the Petitioners have no locus standi to file an application in revision against the order of the municipal magistrate, because according to Mr. Chakravarti, Section 363 of the Calcutta Municipal Act confers a right upon the Corporation alone to file an application for demolition under that section and the only person who can move against an order passed by the municipal magistrate u/s 363 is either the Corporation of Calcutta or the owner of the building against whom the order of demolition has been made under that section.

It seems to us, however, that the powers of this Court u/s 439 of the Code of Criminal Procedure are wide enough to include an application made by an aggrieved person in a proceeding u/s 363 of the Calcutta Municipal Act. In the present case the Petitioners are the only persons who are vitally affected by the refusal of the magistrate to make an order of demolition u/s 363 of the Calcutta Municipal Act. It cannot be said that the Petitioners have no interest in the subject-matter of the dispute in the present case. Mr. Chakravarti has further argued that our powers u/s 439 of the Code of Criminal Procedure ate limited by the provisions of Section 363 of the Calcutta Municipal Act. We see no ground for accepting this argument as correct. It is true that a magistrate can start a proceeding u/s 363 of the Calcutta Municipal Act only upon the application of the Corporation of Calcutta, but that is no reason for holding that our powers u/s 439, Criminal Procedure Code, are also limited by the provisions of Section 363. As a matter of fact, we find that this Court has interfered with orders of municipal magistrate in proceedings u/s 363 of the Calcutta Municipal Act at the instance of private parties. Reference may in this connection be made to Ram Chandra Bhotica v. Corporation of Calcutta Cr. Rev. No. 1110 of 1951 (unreported), decided by Harries C.J. and S.R. Das Gupta J., on April 2, 1952. There is also a case decided by Roxburgh J., Basanta Behari Mukherji v. Corporation of Calcutta Cr. Rev. No. 7 of 1951 (unreported), on February 19, 1951. Moreover, in the circumstances of this case it seems to us that the preliminary point which has been raised by Mr. Chakravarti is of an academic nature because the Corporation of Calcutta has been impleaded as an opposite party to the present Rule and the Corporation of Calcutta has entered appearance through an advocate and filed an affidavit supporting the case of the Petitioners. It is open to us to transpose the Corporation of Calcutta to the category of the Petitioners. For these reasons we overrule the preliminary objection raised by Mr. Chakravarti on behalf of the opposite parties.

Turning to the merits of the case, we find that the judgment of the learned municipal magistrate is not very satisfactory. It appears that the evidence in this case was recorded by one magistrate and the arguments were heard by the municipal magistrate who has dismissed the proceeding u/s 363. The learned municipal magistrate has observed that the district building surveyor had enquired and spoken of the encroachments but he did not note the date of these encroachments, nor has he been examined before the Court. We find, however, that the district building surveyor was actually examined as P.W. 1 in the case. Moreover, the magistrate has further held that the Corporation has no evidence about the age of the C.I. shed. This observation of the learned magistrate is contrary to the requirements of the proviso to Section 363 which is to the effect that

the onus of proving that the work was done more than five years previously shall lie on the owner.

Therefore, it was not the duty of the Corporation of Calcutta to produce evidence of the age of the unauthorised structures, but it was for the opposite parties to prove that the so-called unauthorised structures were more than five years old. However, we are informed that there are certain items of documentary evidence on the record produced by the Corporation of Calcutta as also by the opposite parties which will show the age of the structures. The magistrate should come to a finding upon a consideration of this evidence which is on the record.

In the next place the magistrate has relied upon the two witnesses examined by the opposite parties, although their evidence was not tested by cross-examination. The magistrate in his explanation has stated that the number of lawyers engaged by the Corporation of Calcutta is not sufficient to cope with the cases which are pending before the different municipal magistrates. It was for this reason, probably, that the Corporation could not cross-examine the witnesses examined by the opposite parties. In these circumstances, we think that an opportunity should be given to the Corporation of Calcutta to cross-examine the two witnesses who were examined by the opposite parties.

This Rule is accordingly made absolute. The order of the municipal magistrate, dated April 29, 1952, is set aside and the case sent back to be re-heard in the light of the observations made above. The parties will not have any further opportunity of adducing evidence except that the Corporation of Calcutta will have the right to cross-examine the witnesses examined by the opposite parties.

In the circumstances of this case, if is desirable that the case should be heard by a municipal magistrate other than Sri A.C. Mitra to be nominated by the chief municipal magistrate.

All the parties agree that there will be de nova trial in this case.

Guha, J.

I agree.