PETITIONER:
NANI GOPAL BISWAS
Vs.
RESPONDENT:
THE MUNICIPALITY OF HOWRAH
DATE OF JUDGMENT:
29/10/1957
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
BOSE, VIVIAN
CITATION:
1958 AIR 141 1958 SCR 774
ACT:
Municipal Law--Encroachment caused by compound
wall--Structure not part of main building-Notice to remove
encroachment headed by wrong Provision of the Municipal Act-
Conviction under different section-Legality-Calcutta
Municipal Act, 1923 (Bengal III Of 1923), SS. 299,,300,
488(1)(c).
HEADNOTE:
The appellant was convicted by the Municipal Magistrate
under s. 488, read with s. 299, of the Calcutta Municipal
Act, 1923, and sentenced to pay a fine of Rs. 75, for
failure to carry out within the specified time the terms of
a notice served on him under S. 299 of the Act to remove the
encroachment caused by a compound wall upon the road-side
land of the Municipality. Since the offending structure was
a compound wall and not something which was part and parcel
of the main building, the offence comes under s. 300 and not
s. 299, read with s. 488 Of the Act. The High Court, in
revision, found that the accused was fully aware of the
nature of the accusation against him and that there was no
prejudice caused to him by the wrong mention of s. 299 in
the notice in place Of S. 300. It accordingly altered the
conviction into one under s. 488, read with S. 300, and
reduced the amount of fine to Rs. 5o as required by the
section. On appeal to the Supreme Court it was contended
for the appellant that the conviction was bad because (1)
the notice having been headed as under s. 299 of the Act,
the conviction under S. 300 was illegal, (2) the requisition
had not been lawfully made within the meaning Of s.
488(1)(c), and (3) there was substantial prejudice to the
appellant inasmuch as if the conviction were under s. 299
and
775
not S. 300, read with s. 488, he might have been entitled to
claim compensation :
Held, that the effective part of the notice made it clear
that the requisition, which was to remove the encroachment
caused by the compound wall, was lawfully made, that the
alteration of the conviction under S. 299 to one under s.
300 would not make it illegal and that, on the facts, there
was no prejudice.
Begu v. The King-Emperor, L.R. 52 I.A. 191, relied on.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 60 of
1955.
Appeal from the judgment and order dated the 2nd February,
1955, of the Calcutta High Court in Criminal Revision No.
1113 of 1954, against the judgment and order dated the 14th
November, 1953, of the Court of the Sessions Judge, Howrah
in Criminal Appeal No. 185 of 1953, arising out of the
judgment and order dated the 8th September, 1953, of the
Municipal Magistrate, Second Class, Howrah, in Case No.
1407C/1952.
Sukumar Ghose, for the appellant.
B. Sen and P. K. Ghosh (for P. K. Bose), for the respondent
1957. October 29. The following Judgment of the Court was
delivered by
SINHA J.-This appeal on a certificate of fitness granted by
the Calcutta High Court under Art. 134 (1) (c) of the
Constitution, is directed against the judgment and order of
a Single Judge of that Court in its criminal revisional
jurisdiction, convicting the appellant under s. 488/300 of
the Calcutta Municipal Act, 1923 (which will hereinafter be
referred to as the Act), and sentencing him to a fine of Rs.
50, in substitution of the order of conviction under s.
488/299 of the Act, of a fine of Rs. 75, passed by the lower
courts.
The facts found by the courts below which are necessary to
be stated for the purpose of this appeal, are as follows:
The appellant who is the owner of the premises No. 10/3,
Swarnamoyee Road, Howrah, encroached upon an area of 57′ x
3′ of the road-side land of the Howrah Municipality to which
the
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provisions of the Act have been extended. A notice, the
terms of which we shall set out hereinafter, was served on
the appellant to remove the encroachment aforesaid, and as
he failed to carry out the terms of the notice within the
specified time, the prosecution leading up to this appeal,
was instituted before the magistrate who, under s. 531, is
called ‘Municipal Magistrate’. The Municipal Magistrate who
tried the appellant in the first instance, convicted him,
but on appeal, the learned Sessions Judge acquitted him on
the ground that the prosecution had been launched beyond
three months which was the prescribed period of limitation
under s. 534 of the Act. The Municipality moved the High
Court of Calcutta in its revisional jurisdiction and a
Division Bench of that Court (J. P. Mitter and S. K. Sen
JJ.), set aside the order of acquittal and directed the
appeal to be re-heard, after giving the Municipality an
opportunity of formally bringing on record certain official
documents showing the date of the institution of the
complaint. The relevant documents were proved and exhibited
on behalf of the prosecution in the Sessions Court and the
learned Additional Sessions Judge confirmed the conviction
and the sentence, and dismissed the appeal. Thereupon, the
appellant moved the High Court in its revisional
jurisdiction. His application in revision was heard and
disposed of by P.N. Mukherjee J. by his order dated February
2, 1955, which is the subject-matter of this appeal. Before
him, the appellant as petitioner, urged at the forefront of
the arguments, the question of limitation, and the learned
Judge took the view that the matter was now concluded in
view of what had taken place in the High Court and in the
court of Session in pursuance of the order of remand passed
by the High Court. The learned Judge agreed with the
appellate court that the complaint was not barred. The High
Court also agreed with the lower courts on their findings on
the merits, that is to say, it affirmed the finding that the
appellant had encroached upon the road-side land of the
Municipality. The High Court accepted the argument raised
on behalf of the appellant that on the facts found, namely,
that the
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offending structure was a compound wall and not something
which was a part and parcel of the main building, the
offence if any, would come under s. 300, and not s. 299,
read with s. 488 of the Act. The High Court further took
the view that as the accused was fully aware of the nature
of the accusation against him, it would not cause any
prejudice to him if the conviction and the sentence were
altered into those under s. 300, read with s. 488 of the
Act, the sentence being reduced to the statutory limit of 50
rupees. The appellant moved the High Court and obtained the
necessary certificate from the Bench presided over by the
learned Chief Justice who observed, while granting the
certificate: “It seems to me to be arguable and arguable
with some force that such alteration of the conviction could
not possibly be correct in law……… It would therefore
be arguable that a notice under section 299 to remove a
compound wall unattached to any building could not be a
notice ‘lawfully given’ or a requisition ‘lawfully made’
within the meaning of section 488(1)(c) of the Calcutta
Municipal Act, 1923. It appears to me that the alteration
of the conviction by this Court does raise a question of law
which makes the case a fit case for further appeal to the
Supreme Court.”
In this Court, the learned counsel for the appellant has
placed at the forefront of his arugments the points
suggested in the portion of the learned Chief Justice’s
order quoted above, but in our opinion, there is absolutely
no substance in those contentions. The alteration of the
conviction from s. 299 to s. 300, read with s. 488 of the
Act, was no alteration in the substance of the accusation
but only in the section more properly applicable to the
facts found. A similar question was raised before their
Lordships of the Judicial Committee of the Privy Council in
the case of Begu v. The King-Emperor (1). It was argued
before their Lordships that the conviction of the appellants
before the Judicial Committee under s. 201, Indian Penal
Code, without a charge under that section, was a serious
departure from the procedure laid down in the Code of
Criminal Procedure. In that
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case the initial conviction was for murder under s. 302 of
the Indian Penal Code, but the High Court had set aside that
conviction and substituted a conviction under the lesser s.
201. After discussing the provisions of ss. 236 and 237 of
the Code of Criminal Procedure, their Lordships made the
following observations which fully cover the present
controversy
” A man may be convicted of an offence, although there has
been no charge in respect of it, if the evidence is such as
to establish a charge that might have been made.”
It will be noticed that in the case before the Privy
Council, the alteration was not only in respect of the
section but also of the substance of the accusation, but as
the lesser offence under s. 201, had been made out by the
evidence led on behalf of the prosecution which was
primarily for an offence of murder, their Lordships ruled
that ss. 236 and 237 of the Code of Criminal Procedure
authorize the Court to alter the conviction and the sentence
to be passed in respect of the offence made out in the
evidence. In the case in hand, it is manifest that the
facts sought to be proved and found by the courts below
remained the same even after the alteration of the
conviction from s. 299 to s. 300, read with s. 488 of the
Act. There was, therefore, no illegality in the alteration
of the conviction under one section to the other.
It was next argued that the notice served upon the appellant
was not lawful within the meaning of s. 488(1)(c) of the
Act, which runs as follows:
488(1) Whoever commits any offence by
(a)…………………………………………………
(b)…………………………………………………
(c) failing to comply with any direction lawfully given to
him or any requisition lawfully made upon him under any of
the said sections, sub-sections, clauses, provisos or rules,
shall be punished……………………………..”
The substantive portion of the notice is in these terms:
“Take notice that you are hereby required by the Municipal
Commissioners of Howrah, within
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thirty days from the date of service of this notice to
remove the encroachment caused by a compound wall measuring
57′-0″ x 3′-0″ upon Swarnamoyee Road attached to premises
No. 10/3 and that in default, the provisions of the above
Act will be enforced.”
This notice is headed as under s. 299 of the Act. It is no
-more in controversy, as found by the courts below, that the
offending part of the structure comes under s. 300 which
refers to a wall, etc., not being a portion of a building or
fixture, as contemplated in s. 299. The contention now has
narrowed down to this that the notice having been headed as
under s. 299 of the Act, the conviction under s. 300 is
illegal, because, it is further argued, the requisition had
not been ‘lawfully made’. According to this argument, the
requisition would have been ‘lawfully made’, if the notice
had been headed as under s. 300. Hence, the label given to
the notice makes all the difference between a requisition
‘lawfully made’ and a requisition not so made. In our
opinion, this argument has only to be stated to be rejected.
It is the substance and not the form of the notice that has
to be regarded. The effective part of the notice quoted
above, leaves no doubt in the mind of the parties concerned
that the requisition is to remove the encroachment caused by
the compound wall. As it has not been contended that the
appellant had not received the notice, and it is common
ground that the appellant had not carried out the terms of
the notice, there cannot be the least doubt that the
appellant has incurred the penalty under s. 488(1)(c), read
with s. 300. It must, therefore, be held that
notwithstanding the label given to the notice, the
requisition bad been lawfully made in the sense that the
appellant had made the encroachment complained of, and that
the Municipality was entitled to call upon him to remove the
encroachment. The appellant was bound to carry out the
terms of the requisition, and as he admittedly failed
therein, he had incurred the penalty of the law.
It was next sought to be contended that there was
substantial prejudice to the appellant inasmuch as if
99
780
the conviction were under s. 299 and not s. 300, read with
s. 488, he may have been entitled to claim compensation.
There are several answers to this contention. In the first
instance, he himself invited the High Court to interfere
with the order of conviction passed by the lower courts. If
the High Court has set right the technical defect, as it was
bound to do when the matter had been brought to its notice,
the appellant has no just grievance, keeping in view the
fact that the amount of fine has been reduced as a result of
the alteration in the section. Secondly, if he has any
rights to claim compensation in a civil court the judgment
and order of the criminal court is wholly irrelevant; and
thirdly, the prejudice must have reference to any
irregularity in the trial of the case. It has not been
shown that the appellant had, in any way, been prejudiced in
the trial of the case as a result of the alteration in the
section, that is to say, that he was deprived of some
opportunity to make a proper defence to the prosecution if
the right section had been named in the notice or in the
charge, if any. Nor has he been able to show that he was
misled as a result of any such technical error.
Lastly, it was sought to be made out that the prosecution
itself was beyond time. This contention was attempted to be
made good with reference to the additional evidence adduced
at the appellate stage as a result of the direction of the
High Court when the case came before it on the first
occasion, as mentioned above. In our opinion, there is no
substance in this contention because as pointed out by the
learned Additional Sessions Judge, the additional evidence
placed before the Court puts the matter beyond all
reasonable doubt that the complaint had been lodged in time
before the relevant authority.
In view of these considerations, it must be held that there
is no merit in this appeal. It is, accordingly, dismissed.
Appeal dismissed.
781