CORPORATION OF CALCUTTA versus MULCHAND AGARWALLA.

Citation: [1955] 2 S.C.R. 995 · Decided: 17-11-1955 · Supreme Court of India · Bench: T.L. VENKATARAMA AIYYAR · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

2 S.C.R. 
SUPREME COURT REPORTS 
CORPORATION OF CALCUTT A 
fl. 
MULCHAND AGARWALLA. 
[VENKATARAMA 
AYYAR and 
JAFER 
IMAM JJ.] 
995 
Calcutta Mtmicipal Act, 1923, (Bengal Act III of 1923), ss. 363, 
488 and Rule 62 of Schedule XVII-Prior proceedings taken by Cor-
poration of Ca;cutta unda s. 488 read with Rule 62 of Schedule XVII 
-Whethe1· a bar to the subsequent proceedings under s. 363 of the Act 
-Inconvenience to n.::ighbours-Whethcr relevant for making an order 
for demolition under s. 363 of the /lct-Proceedmgr on the same facts 
competent to be taken under two different sections providing different 
penalties-Whether distinct· proceeaings-Word "may" in s. 363 of 
the Act, whether means "shall" -Discretion vested in the Magistrate 
under s. 363-0rder passed by an authority er.trusted with discretion 
to pass such order-When liable to be interfered with by the appel-
late Court. 
The Corporation of Calcutta is not precluded from taking 
proce~dings under s. 363 of the Calcutta Municipal Act, 1923 by 
reason of its having taken proceedings prior thereto under s. 488 cf 
the Act read with Rule 62 of Schedule XVII. 
The question of inconvenience to neighbours is not relevant for 
the purpose of deciding whether an order for demolition should he 
made under s. 363 of the Act. 
\Vhen the Legislature provides th:it on the same facts proceed-
ings could be t:iken under two different sections ahd the penalties 
provided in those sections are not the same, it obviously intends to 
treat them as distinct, and, therefore, where no question under s. 
403 of the Code of Criminal Procedure arises, proceedings taken 
under one section cannot be treated as falling within the other. 
The word "may" in s. 363 of the Act does not mean "shall" 
and the 
Magistrate has 
under that section discretion whether he 
should pass an order for demolition or not. 
It is a well-settled principle that when the legislature 
entrusts 
to an authority the power to pass an order in its discretiq,n an order 
passed by that authority in exercise of that discretion is/ in general, 
not liable to be interfered with by an appellate court, unless it can 
be shown to have been based on some mistake of facts or mis-
apprehension of the principles applicable thereto. 
In the present 
case, 
however, the orders of the courts below 
were based on mistakes and misdirections and therefore could Pot h~ 
supported. 
But the Supreme Court did not think this to be a fit case for an 
order for the demolition of the buildings in view of certain special 
circumstances, viz., (I) though s. 363(2), which directs that no appli-
1955 
Noutmber 17. 
1955 
Corp«alionfo 
Calcutta 
v. 
Mule hand 
Agarwalla 
SUPREME COURT REPORTS 
[1955] 
cation for demolition shall be instituted after the lapse of five ycan 
from 
the date of the work, did not, in terms, apply as the proceed-
ings had been started in time, 
it was 
nearly 
five years since the 
building had been completed and the intere"s of the public did not 
call for its demolition, and (2) the 
appeal came 
on a certificate 
granted under art. 134(J)(c) with a view to obtaining the decision of 
the Supreme Court on certain questions of importance. 
Abdul Samad v. Corporation of Calcutta ([1905] 1.L.R. 33 Cal. 
287), referred to. 
CRIMINAL 
APPELLATE 
JURISDICTION : 
Criminal 
Appeal No. 60 of 1954. 
Appeal under Article 134(1)(c) of the Constiru.. 
tion of India from the Judgment and order dated the 
19th January 1954 of the · Calcutta High Court in 
Criminal Revision No. 865 of 1953 arising out of the 
Judgment and Order dated the 29th April 1953 of the 
Court of Third Municipal 
Magistrate, Calcutta in 
Case No. 108-A of 1951. 
N. C. Chatter#, (S. K. Bose and Sukumar Ghose, 
with him) for the appellant. 
G. P. Kar, (A. K. Mukherjee and D. N. Mukherjee, 
with him) for the respondent. 
· 
1955. 
November 17. 
The 
Judgment 
of the 
Court was delivered by 
VENKATARAMA AYYAR J.--This is an appeal against 
the judgment of the High Court of Calcutta affirming 
the order of the Municipal Magistrate, whereby he 
dismissed an application filed by the appellant under 
section 
363 of the 
Calcutta Municipal Act, 
1923, 
hereinafter referred to as the Act, for demolition of 
certain constructions on the ground that they had 
been erected ·without the previous permission of the 
authorities and in contravention of the 
prescriptions 
laid down in the building rules. 
The respondent is the owner of house No. 36, 
Armenian Street, 

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