{"id":27514,"date":"1957-10-29T00:00:00","date_gmt":"1957-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nani-gopal-biswas-vs-the-municipality-of-howrah-on-29-october-1957"},"modified":"2017-07-26T19:39:31","modified_gmt":"2017-07-26T14:09:31","slug":"nani-gopal-biswas-vs-the-municipality-of-howrah-on-29-october-1957","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nani-gopal-biswas-vs-the-municipality-of-howrah-on-29-october-1957","title":{"rendered":"Nani Gopal Biswas vs The Municipality Of Howrah on 29 October, 1957"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nani Gopal Biswas vs The Municipality Of Howrah on 29 October, 1957<\/div>\n
Equivalent citations: 1958 AIR 141, \t\t 1958 SCR 774<\/div>\n
Author: B P Sinha<\/div>\n
Bench: Sinha, Bhuvneshwar P.<\/div>\n
           PETITIONER:\nNANI GOPAL BISWAS\n\n\tVs.\n\nRESPONDENT:\nTHE MUNICIPALITY OF HOWRAH\n\nDATE OF JUDGMENT:\n29\/10\/1957\n\nBENCH:\nSINHA, BHUVNESHWAR P.\nBENCH:\nSINHA, BHUVNESHWAR P.\nBOSE, VIVIAN\n\nCITATION:\n 1958 AIR  141\t\t  1958 SCR  774\n\n\nACT:\n       Municipal     Law--Encroachment\t  caused    by\t   compound\n       wall--Structure\tnot part of main building-Notice to  remove\n       encroachment headed by wrong Provision of the Municipal Act-\n       Conviction    under   different\t  section-Legality-Calcutta\n       Municipal  Act,\t1923 (Bengal III Of  1923),  SS.  299,,300,\n       488(1)(c).\n\n\n\nHEADNOTE:\n       The  appellant  was convicted by\t the  Municipal\t Magistrate\n       under  s. 488, read with s. 299, of the\tCalcutta  Municipal\n       Act,  1923,  and\t sentenced to pay a fine  of  Rs.  75,\tfor\n       failure to carry out within the specified time the terms\t of\n       a notice served on him under S. 299 of the Act to remove the\n       encroachment  caused by a compound wall upon  the  road-side\n       land of the Municipality.  Since the offending structure was\n       a compound wall and not something which was part and  parcel\n       of the main building, the offence comes under s. 300 and not\n       s.  299,\t read with s. 488 Of the Act.  The High\t Court,\t in\n       revision,  found\t that the accused was fully  aware  of\tthe\n       nature  of the accusation against him and that there was\t no\n       prejudice  caused to him by the wrong mention of s.  299\t in\n       the  notice in place Of S. 300.\tIt accordingly altered\tthe\n       conviction  into\t one under s. 488, read with  S.  300,\tand\n       reduced\tthe  amount of fine to Rs. 5o as  required  by\tthe\n       section.\t  On appeal to the Supreme Court it  was  contended\n       for  the appellant that the conviction was bad  because\t(1)\n       the  notice having been headed as under s. 299 of  the  Act,\n       the conviction under S. 300 was illegal, (2) the requisition\n       had  not\t been  lawfully\t made  within  the  meaning  Of\t s.\n       488(1)(c),  and (3) there was substantial prejudice  to\tthe\n       appellant  inasmuch as if the conviction were under  s.\t299\n       and\n       775\n       not S. 300, read with s. 488, he might have been entitled to\n       claim compensation :\n       Held,  that the effective part of the notice made  it  clear\n       that  the requisition, which was to remove the  encroachment\n       caused  by  the compound wall, was lawfully made,  that\tthe\n       alteration  of the conviction under S. 299 to one  under\t s.\n       300 would not make it illegal and that, on the facts,  there\n       was no prejudice.\n       Begu v. The King-Emperor, L.R. 52 I.A. 191, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CRIMINAL\t APPELLATE JURISDICTION: Criminal Appeal No. 60\t of
\n       1955.\n<\/p>\n
       Appeal  from the judgment and order dated the 2nd  February,
\n       1955,  of the Calcutta High Court in Criminal  Revision\tNo.
\n       1113 of 1954, against the judgment and order dated the  14th
\n       November,  1953, of the Court of the Sessions Judge,  Howrah
\n       in  Criminal  Appeal  No. 185 of 1953, arising  out  of\tthe
\n       judgment\t and  order dated the 8th September, 1953,  of\tthe
\n       Municipal  Magistrate,  Second Class, Howrah,  in  Case\tNo.
\n       1407C\/1952.\n<\/p>\n
       Sukumar Ghose, for the appellant.\n<\/p>\n
       B. Sen and P. K. Ghosh (for P. K. Bose), for the respondent
\n       1957.  October 29.  The following Judgment of the Court\twas
\n       delivered by
\n       SINHA J.-This appeal on a certificate of fitness granted\t by
\n       the  Calcutta  High  Court under Art. 134  (1)  (c)  of\tthe
\n       Constitution, is directed against the judgment and order\t of
\n       a  Single  Judge of that Court in  its  criminal\t revisional
\n       jurisdiction,  convicting the appellant under s. 488\/300\t of
\n       the Calcutta Municipal Act, 1923 (which will hereinafter\t be
\n       referred to as the Act), and sentencing him to a fine of Rs.
\n       50,  in\tsubstitution of the order of  conviction  under\t s.
\n       488\/299 of the Act, of a fine of Rs. 75, passed by the lower
\n       courts.\n<\/p>\n
       The  facts found by the courts below which are necessary\t to
\n       be  stated for the purpose of this appeal, are  as  follows:
\n       The  appellant  who is the owner of the premises\t No.  10\/3,
\n       Swarnamoyee  Road, Howrah, encroached upon an area of 57′  x
\n       3′ of the road-side land of the Howrah Municipality to which
\n       the
\n       776<\/span>
\n       provisions  of  the Act have been extended.  A  notice,\tthe
\n       terms  of which we shall set out hereinafter, was served\t on
\n       the  appellant to remove the encroachment aforesaid, and\t as
\n       he  failed to carry out the terms of the notice\twithin\tthe
\n       specified  time, the prosecution leading up to this  appeal,
\n       was  instituted before the magistrate who, under s. 531,\t is
\n       called ‘Municipal Magistrate’.  The Municipal Magistrate who
\n       tried  the appellant in the first instance,  convicted  him,
\n       but  on appeal, the learned Sessions Judge acquitted him\t on
\n       the  ground  that the prosecution had been  launched  beyond
\n       three  months which was the prescribed period of\t limitation
\n       under  s. 534 of the Act.  The Municipality moved  the  High
\n       Court  of  Calcutta  in its revisional  jurisdiction  and  a
\n       Division\t Bench of that Court (J.  P. Mitter and S.  K.\tSen
\n       JJ.),  set  aside the order of acquittal\t and  directed\tthe
\n       appeal  to  be re-heard, after giving  the  Municipality\t an
\n       opportunity of formally bringing on record certain  official
\n       documents  showing  the\tdate  of  the  institution  of\tthe
\n       complaint.  The relevant documents were proved and exhibited
\n       on  behalf of the prosecution in the Sessions Court and\tthe
\n       learned\tAdditional Sessions Judge confirmed the\t conviction
\n       and the sentence, and dismissed the appeal.  Thereupon,\tthe
\n       appellant   moved   the\tHigh  Court   in   its\t revisional
\n       jurisdiction.   His  application in revision was\t heard\tand
\n       disposed of by P.N. Mukherjee J. by his order dated February
\n       2, 1955, which is the subject-matter of this appeal.  Before
\n       him, the appellant as petitioner, urged at the forefront\t of
\n       the  arguments, the question of limitation, and the  learned
\n       Judge  took  the view that the matter was now  concluded\t in
\n       view  of what had taken place in the High Court and  in\tthe
\n       court of Session in pursuance of the order of remand  passed
\n       by  the\tHigh  Court.  The learned  Judge  agreed  with\tthe
\n       appellate court that the complaint was not barred.  The High
\n       Court also agreed with the lower courts on their findings on
\n       the merits, that is to say, it affirmed the finding that the
\n       appellant  had  encroached upon the road-side  land  of\tthe
\n       Municipality.   The High Court accepted the argument  raised
\n       on behalf of the appellant that on the facts found,  namely,
\n       that the
\n       777<\/span>
\n       offending  structure was a compound wall and  not  something
\n       which  was  a  part and parcel of  the  main  building,\tthe
\n       offence\tif  any, would come under s. 300, and not  s.  299,
\n       read  with s. 488 of the Act.  The High Court  further  took
\n       the  view that as the accused was fully aware of the  nature
\n       of  the\taccusation  against him, it  would  not\t cause\tany
\n       prejudice  to  him if the conviction and the  sentence  were
\n       altered\tinto  those under s. 300, read with s. 488  of\tthe
\n       Act, the sentence being reduced to the statutory limit of 50
\n       rupees.\tThe appellant moved the High Court and obtained the
\n       necessary  certificate from the Bench presided over  by\tthe
\n       learned\tChief  Justice\twho observed,  while  granting\tthe
\n       certificate:  “It  seems to me to be arguable  and  arguable
\n       with some force that such alteration of the conviction could
\n       not  possibly be correct in law……… It would  therefore
\n       be  arguable  that a notice under section 299  to  remove  a
\n       compound\t wall  unattached to any building could\t not  be  a
\n       notice  ‘lawfully  given’ or a requisition  ‘lawfully  made’
\n       within  the  meaning of section 488(1)(c)  of  the  Calcutta
\n       Municipal  Act, 1923.  It appears to me that the\t alteration
\n       of the conviction by this Court does raise a question of law
\n       which  makes the case a fit case for further appeal  to\tthe
\n       Supreme Court.”\n<\/p>\n
       In  this\t Court, the learned counsel for the  appellant\thas
\n       placed  at  the\tforefront  of  his  arugments  the   points
\n       suggested  in  the portion of the  learned  Chief  Justice’s
\n       order quoted above, but in our opinion, there is\t absolutely
\n       no  substance in those contentions.  The alteration  of\tthe
\n       conviction  from s. 299 to s. 300, read with s. 488  of\tthe
\n       Act,  was no alteration in the substance of  the\t accusation
\n       but  only  in the section more properly\tapplicable  to\tthe
\n       facts  found.   A similar question was raised  before  their
\n       Lordships of the Judicial Committee of the Privy Council\t in
\n       the  case  of Begu v. The King-Emperor (1).  It\twas  argued
\n       before their Lordships that the conviction of the appellants
\n       before  the  Judicial Committee under s. 201,  Indian  Penal
\n       Code,  without  a charge under that section, was\t a  serious
\n       departure  from\tthe  procedure laid down  in  the  Code\t of
\n       Criminal Procedure.  In that
\n       778<\/span>
\n       case  the initial conviction was for murder under s. 302\t of
\n       the Indian Penal Code, but the High Court had set aside that
\n       conviction and substituted a conviction under the lesser\t s.\n<\/p>\n
       201.  After discussing the provisions of ss. 236 and 237\t of
\n       the  Code  of Criminal Procedure, their Lordships  made\tthe
\n       following   observations\t which\tfully  cover  the   present
\n       controversy
\n       ”  A man may be convicted of an offence, although there\thas
\n       been no charge in respect of it, if the evidence is such\t as
\n       to establish a charge that might have been made.”
\n       It  will\t be  noticed  that in the  case\t before\t the  Privy
\n       Council,\t the  alteration  was not only in  respect  of\tthe
\n       section but also of the substance of the accusation, but\t as
\n       the  lesser offence under s. 201, had been made out  by\tthe
\n       evidence\t led  on  behalf  of  the  prosecution\twhich\twas
\n       primarily  for an offence of murder, their  Lordships  ruled
\n       that  ss.  236  and 237 of the Code  of\tCriminal  Procedure
\n       authorize the Court to alter the conviction and the sentence
\n       to  be  passed  in respect of the offence made  out  in\tthe
\n       evidence.   In  the case in hand, it is\tmanifest  that\tthe
\n       facts  sought  to be proved and found by\t the  courts  below
\n       remained\t  the  same  even  after  the  alteration  of\tthe
\n       conviction  from s. 299 to s. 300, read with s. 488  of\tthe
\n       Act.  There was, therefore, no illegality in the\t alteration
\n       of the conviction under one section to the other.
\n       It was next argued that the notice served upon the appellant
\n       was not lawful within the meaning of s. 488(1)(c)   of\tthe
\n       Act, which runs as follows:\n<\/p>\n
       488(1) Whoever commits any offence by\n<\/p>\n
       (a)…………………………………………………\n<\/p>\n
       (b)…………………………………………………\n<\/p>\n
       (c)  failing to comply with any direction lawfully given\t to
\n       him  or any requisition lawfully made upon him under any\t of
\n       the said sections, sub-sections, clauses, provisos or rules,
\n       shall  be  punished……………………………..”
\n       The substantive portion of the notice is in these terms:
\n       “Take  notice that you are hereby required by the  Municipal
\n       Commissioners of Howrah, within
\n       779<\/span>
\n       thirty  days  from  the date of service of  this\t notice\t to
\n       remove the encroachment caused by a compound wall  measuring
\n       57′-0″  x 3′-0″ upon Swarnamoyee Road attached  to  premises
\n       No.  10\/3 and that in default, the provisions of\t the  above
\n       Act will be enforced.”\n<\/p>\n
       This notice is headed as under s. 299 of the Act.  It is\t no\n<\/p>\n
       -more in controversy, as found by the courts below, that the
\n       offending  part\tof the structure comes under s.\t 300  which
\n       refers to a wall, etc., not being a portion of a building or
\n       fixture, as contemplated in s. 299.  The contention now\thas
\n       narrowed down to this that the notice having been headed\t as
\n       under  s.  299 of the Act, the conviction under\ts.  300\t is
\n       illegal, because, it is further argued, the requisition\thad
\n       not  been ‘lawfully made’.  According to this argument,\tthe
\n       requisition  would have been ‘lawfully made’, if the  notice
\n       had been headed as under s. 300.\t Hence, the label given\t to
\n       the  notice makes all the difference between  a\trequisition
\n       ‘lawfully  made’\t and  a requisition not so  made.   In\tour
\n       opinion, this argument has only to be stated to be rejected.
\n       It is the substance and not the form of the notice that\thas
\n       to  be  regarded.  The effective part of the  notice  quoted
\n       above, leaves no doubt in the mind of the parties  concerned
\n       that the requisition is to remove the encroachment caused by
\n       the  compound wall.  As it has not been contended  that\tthe
\n       appellant  had  not received the notice, and  it\t is  common
\n       ground  that the appellant had not carried out the terms\t of
\n       the  notice,  there  cannot  be the  least  doubt  that\tthe
\n       appellant has incurred the penalty under s. 488(1)(c),  read
\n       with   s.   300.\t   It  must,  therefore,   be\theld   that
\n       notwithstanding\t the  label  given  to\tthe   notice,\tthe
\n       requisition  bad\t been lawfully made in the sense  that\tthe
\n       appellant had made the encroachment complained of, and  that
\n       the Municipality was entitled to call upon him to remove the
\n       encroachment.   The  appellant was bound to  carry  out\tthe
\n       terms  of  the  requisition, and\t as  he\t admittedly  failed
\n       therein, he had incurred the penalty of the law.
\n       It   was\t next  sought  to  be  contended  that\tthere\twas
\n       substantial prejudice to the appellant inasmuch as if
\n       99<\/span>
\n       780<\/span>
\n       the conviction were under s. 299 and not s. 300, read   with
\n       s.  488,\t he may have been entitled to  claim  compensation.
\n       There are several answers to this contention.  In the  first
\n       instance,  he  himself invited the High Court  to  interfere
\n       with the order of conviction passed by the lower courts.\t If
\n       the High Court has set right the technical defect, as it was
\n       bound to do when the matter had been brought to its  notice,
\n       the  appellant  has no just grievance, keeping in  view\tthe
\n       fact that the amount of fine has been reduced as a result of
\n       the  alteration\tin the section.\t Secondly, if  he  has\tany
\n       rights  to claim compensation in a civil court the  judgment
\n       and  order of the criminal court is wholly  irrelevant;\tand
\n       thirdly,\t  the\tprejudice  must\t have  reference   to\tany
\n       irregularity  in\t the trial of the case.\t It  has  not  been
\n       shown that the appellant had, in any way, been prejudiced in
\n       the  trial of the case as a result of the alteration in\tthe
\n       section,\t that  is  to say, that he  was\t deprived  of  some
\n       opportunity  to make a proper defence to the prosecution\t if
\n       the  right  section had been named in the notice or  in\tthe
\n       charge,\tif any.\t Nor has he been able to show that  he\twas
\n       misled as a result of any such technical error.
\n       Lastly,\tit was sought to be made out that  the\tprosecution
\n       itself was beyond time.\tThis contention was attempted to be
\n       made good with reference to the additional evidence  adduced
\n       at  the appellate stage as a result of the direction of\tthe
\n       High  Court  when  the  case came before\t it  on\t the  first
\n       occasion,  as mentioned above.  In our opinion, there is\t no
\n       substance  in this contention because as pointed out by\tthe
\n       learned\tAdditional Sessions Judge, the additional  evidence
\n       placed\tbefore\tthe  Court  puts  the  matter  beyond\tall
\n       reasonable doubt that the complaint had been lodged in  time
\n       before the relevant authority.\n<\/p>\n
       In view of these considerations, it must be held that  there
\n       is no merit in this appeal.  It is, accordingly, dismissed.
\n       Appeal dismissed.\n<\/p>\n
       781<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nani Gopal Biswas vs The Municipality Of Howrah on 29 October, 1957 Equivalent citations: 1958 AIR 141, 1958 SCR 774 Author: B P Sinha Bench: Sinha, Bhuvneshwar P. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-27514","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNani Gopal Biswas vs The Municipality Of Howrah on 29 October, 1957 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nani-gopal-biswas-vs-the-municipality-of-howrah-on-29-october-1957\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nani Gopal Biswas vs The Municipality Of Howrah on 29 October, 1957 - 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