Authored By : S.C. Lahiri, Guha

S.C. Lahiri, J.

1. This is a Rule directed against the order of a municipalmagistrate of Calcutta, dated April 29, 1952, by which he has dismissed anapplication filed by the Corporation of Calcutta under Section 363 of theCalcutta Municipal Act. The Petitioners who have moved this Court and obtainedthe present Rule are owners of premises No. 101-B, Keshab Chandra Sen Street.They filed an application before the Corporation authorities alleging that theowners of premises No. 101-A, Keshab Chandra Sen Street, have erected anunauthorised structure on the north-western corner of their premises. Upon thiscomplaint the Administrative Officer of the Corporation of Calcutta, afterholding certain enquiries, passed the following order:

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

2. Upon this order the opposite parties paid the sketch feesand wet work charges within the time limit but did not leave 4 ft. space allalong the northern side and, therefore, the case was sent to the municipalmagistrate for trial.

3. The learned municipal magistrate has dismissed the caseupon the ground that no evidence has been adduced by the Corporation about theage of the alleged unauthorised structures and that, upon the evidence whichhas been adduced by the opposite parties, he was satisfied that the structureswere in existence for long over five years. Against this order the Petitionershave obtained the present Rule and on behalf of the Petitioners it has beenargued that the learned magistrate was wrong in holding that on behalf of theCorporation no evidence was adduced about the age of the unauthorisedstructures and that he has also erred in relying upon the evidence of thewitnesses examined by the opposite parties inasmuch as the Corporation lawyercould not cross-examine them.

4. Before dealing with the merits of the Petitionerscontention we have to consider a preliminary point which has been raised by Mr.Chakravarti, appearing for the opposite parties. Mr. Chakravarti has arguedthat the Petitioners have no locus standi to file an application in revisionagainst the order of the municipal magistrate, because according to Mr. Chakravarti,Section 363 of the Calcutta Municipal Act confers a right upon the Corporationalone to file an application for demolition under that section and the onlyperson who can move against an order passed by the municipal magistrate underSection 363 is either the Corporation of Calcutta or the owner of the buildingagainst whom the order of demolition has been made under that section.

5. It seems to us, however, that the powers of this Courtunder Section 439 of the Code of Criminal Procedure are wide enough to includean application made by an aggrieved person in a proceeding under Section 363 ofthe Calcutta Municipal Act. In the present case the Petitioners are the onlypersons who are vitally affected by the refusal of the magistrate to make anorder of demolition under Section 363 of the Calcutta Municipal Act. It cannotbe said that the Petitioners have no interest in the subject-matter of thedispute in the present case. Mr. Chakravarti has further argued that our powersunder Section 439 of the Code of Criminal Procedure are limited by theprovisions of Section 363 of the Calcutta Municipal Act. We see no ground foraccepting this argument as correct. It is true that a magistrate can start aproceeding under Section 363 of the Calcutta Municipal Act only upon theapplication of the Corporation of Calcutta, but that is no reason for holdingthat our powers under Section 439, Criminal Procedure Code, are also limited bythe provisions of Section 363. As a matter of fact, we find that this Court hasinterfered with orders of municipal magistrate in proceedings under Section 363of the Calcutta Municipal Act at the instance of private parties. Reference mayin this connection be made to Ram Chandra Bhotica v. Corporation of CalcuttaCr. Rev. No. 1110 of 1951 (unreported), decided by Harries C.J. and S.R. DasGupta 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 caseit seems to us that the preliminary point which has been raised by Mr.Chakravarti is of an academic nature because the Corporation of Calcutta hasbeen impleaded as an opposite party to the present Rule and the Corporation ofCalcutta has entered appearance through an advocate and filed an affidavitsupporting the case of the Petitioners. It is open to us to transpose theCorporation of Calcutta to the category of the Petitioners. For these reasonswe overrule the preliminary objection raised by Mr. Chakravarti on behalf ofthe opposite parties.

6. Turning to the merits of the case, we find that thejudgment of the learned municipal magistrate is not very satisfactory. Itappears that the evidence in this case was recorded by one magistrate and thearguments were heard by the municipal magistrate who has dismissed theproceeding under Section 363. The learned municipal magistrate has observedthat the district building surveyor had enquired and spoken of theencroachments but he did not note the date of these encroachments, nor has hebeen examined before the Court. We find, however, that the district buildingsurveyor was actually examined as P.W. 1 in the case. Moreover, the magistratehas 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 therequirements of the proviso to Section 363 which is to the effect that

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

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

9. In the next place the magistrate has relied upon the twowitnesses examined by the opposite parties, although their evidence was nottested by cross-examination. The magistrate in his explanation has stated thatthe number of lawyers engaged by the Corporation of Calcutta is not sufficientto cope with the cases which are pending before the different municipalmagistrates. It was for this reason, probably, that the Corporation could notcross-examine the witnesses examined by the opposite parties. In thesecircumstances, we think that an opportunity should be given to the Corporationof Calcutta to cross-examine the two witnesses who were examined by theopposite parties.

10. This Rule is accordingly made absolute. The order of themunicipal magistrate, dated April 29, 1952, is set aside and the case sent backto be re-heard in the light of the observations made above. The parties willnot have any further opportunity of adducing evidence except that theCorporation of Calcutta will have the right to cross-examine the witnessesexamined by the opposite parties.

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

12. All the parties agree that there will be de nova trialin this case.

Guha, J.

13. I agree.

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Rabindra Nath Mitravs. Tara Kumar Chakravarty (22.07.1952 - CALHC)