# Corp«alionfo Calcutta v. Mule hand Agarwalla

- **Citation:** [1955] 2 S.C.R. 995
- **Court:** Supreme Court of India
- **Decided:** 1954-01-19
- **Case number:** Criminal Appeal No. 60 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/corp-alionfo-calcutta-v-mule-hand-agarwalla-1284
- **Pages:** 12

## Headnote

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 Corporation 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 appellate 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 proceedings 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 misapprehension 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 appli1955
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 proceedings 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

## Text

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 Corporation 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 appellate 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 proceedings 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 misapprehension 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 appli1955
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 proceedings 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, Calcutta. On 28-10-1950 the Building Inspector of the Corporation discovered that some
new masonry structures were being constructed on
the fifth storey of that house. A notice under section
365 of the Act was immediately served on the respondent directing him to stop
forthwith further con-
2 S.C.R.
SUPREME COURT REPORTS
structions
pending an application to the Magistrate
under section 363 of the Act. What followed thereon
is
graphically described by the learned Chief Justice
of the High Court in his order dated 9-4-1954 granting
leave to appeal to this Court,
as
a hide-and-seek
game. On receipt of the notice, the respondent stopped
the work for a few days, and thereby lulled the Building
Inspector
into
the
belief
that
no
further cbnstructions would be made. When the Inspector
ceased
to inspect
the
premises
daily,
the
respondent resumed the work, and on 7-11-1950 when
the Inspector came again on the scene, he found that
the construction
was being proceeded with.
A police
constable
was then posted for watch under section 365
(3) of the Act, and he continued there till 10-11-1950,
on which date the respondent wrote to the Corporation that he would not proceed further with the construction.
The police watch was thereupon withdrawn
on the respondent paying Rs. 40 being the charges
payable therefor. On 7-12-1950
the Inspector again
inspected the premises, and found that the construction was being proceeded with, and had a constable
posted again for watch.
On 13-12-1950 the appellant.
lodged a complaint before the Magistrate under section 488 read with Rule 62 of Schedule XVII charging
the respondent with constructing two rooms in the
fifth
storey
without obtaining
permission.
Section
488(1) (a) enacts that whoever commits any offence
by
.contravening any
provisions of
any
of
the
sections or rules of the Act mentioned in the first
column of
the
table
annexed
thereto, shall be
punished with fine as specified in the said table. Rule
62 provides that the erection of a new building shall
not be commenced unless
and until the Corporation
have granted written permission for the execution of
the same.
The complaint
was
heard
on
11-4-1951.
The respondent pleaded guilty, and was fined Rs. 200.
While the proceedings under section 488 were pending before the Magistrate, the Corporation would appear to have examined the nature of the constructions
put up by the respondent, and found
that they contravened Rules 3, 14, 25 and 32 of Schedule XVII,
1955
Corporation of
Calcutta
v.
Mulchand
AgarwaUa
V enka14ram/J
AJyar ].
1955
Corporation:ttf
Calcutta
v.
Mutchand
<'1%arwalla
.--
v enkatarama
Ayyar J.
998
SUPREME COURT REPORTS
[1955]
and decided to take
action
under section 363. They
accordingly issued a notice to the respondent to show
cause why action should not be taken under that section. The
respondent
appeared
by
counsel
on
13-2-1951,
ar,d after
hearing
him,
the appellant decided on 6-3-1951 to move the court for an order
under section 363, and the petition out of which the
present appeal
arises, was actually filed
on 4-4-1951.
There was delay
in serving the respondent, and after
he was actually served which was on 17-9-1951, the
case underwent several adjournments, and finally on
29-4-1953 · the Magistrate passed an order dismissing
the petition. There was no dispute that the building
rules
had been contravened. The Magistrate,
however. held that he had a discretion under section 363
whether he should direct
demolition,
and
that
this
was not a fit case in which an order should be made
for demolition, because the constructions being on the
fifth
storey could not obstruct
light and air and
thereby inconvenience the neighbours, and there was
no complaint from the residents of the locality, and
that as the respondent had already been fined in proceedings under section 488,
an order for
demolition
would be to penalise him twice over for the same
offence.
Against this order, the appel!ant preferred a revision to the
High Court of Calcutta. That was heard
bv K. C. Chunder, J. He agreed with the Magistrate
that ''nder sectior, 363
the court had a discretion
whether it should order demolition or not, and that
as the Corporation had taken proceedings under section 488 and was content to have a fine
imposed on
the respondent for breach of Rule 62, it would be
unjust
to permit it
thereafter
to
start
proceedings
under section 363 for the further relief of demolition
of the bu;Jclfog. He also commented on the undue
delay on the part of the Corporation in taking out the
application, and took into account
the fact
that no
complaint had been
received
from
the locality.
In
the result, he dismissed the revision.
The appellant applied under article 134(1) ( c) for
leave to appeal to this Court. Chakravarti, C. J. and
1S.C.R.
SUPREME COURT REPORTS
999
S. R. Das Gupta, J. who heard this application, considered
that
two
questions
of
general
importance
arose on which it was desirable to have the decision
ot this Court, viz., (1) whether the Corporation · was
precluded from taking proceedings
under section 363
of the Act by reason of its having taken proceedings
prior thereto under section 488 of the Act read with
Rule 62
of Schedule
XVII, and (2) whether the
qu:::stion of inconvenience to neighbours was relevant
for the purpose of deciding whether an order for demolition should
be made under section 363
of the
Act. They
accordingly granted leave
under article
134 (l)(c), and that is
how the appeal is now
before us.
The first question that arises for our determination
is whether the present proceedings under section 363
ar::: barred by reason of the application whith was
hled under section 488. It is conceded that there is
notnmg express in the · statute enacting such a · bar,
but it is contended that it is to be implied from the
proviso to section 363 that "where the Corporation
have instituted proceedings under section 493, no appiication shall be made under this
section". Admittedly,
the
appellant instituted· no proceedings under
section 493 ; but it is argued that proceedings under
section
488 substantially
fall
within
section 493,
and that the proviso should therefore be held to be
applicable. Under section 493, if the erection of any
new building is
commenced
without obtaining the
written permission of the Corporation, the owner of.
the building shall be liable to a fine which may extend
up to Rs. 500. Then, there is a proviso that where
an application had been made under section 363, no
proseeding shall be instituted under this section. This
corresponds to the proviso to section 363- set out
above, and reading the two
provisions, it is clear
that
the proceedings
under the two sections are
mutually exclmive. Now, the contention of the respondent is that a prosecution
under section 488 for
breach of rule 62 of Schedule XVII is, in essence, a
p;-o<ecution under section 493( a), and that, therefore,
the proviso to section 363 becomes applicable. We are
1955
Corporation of
Calcutta
v.
Mulchand
Agarwal/a
Venkatarama
Ayyar ].
1955
Corporation of
Caltutta
v.
Mulchand
Agarwalla
Y enkataroma
.dyyarj.
1000
SUPREME COURT REPORTS
[1955]
unable to
agree
with
this contention. When the
Legislature provides that on the same facts proceedings could be taken under two different sections and
the penalties provided in those sections are not the
same, it obviously intends to treat them as distinct,
and, therefore, where no question under section 403
of the Code of Criminal Procedure arises, proceedings
taken under one section cannot be treated as falling
within the other. The penalty prescribed in section
488 for breach of rule 62 of Schedule XVII is fine up
to the limit of Rs. 200, whereas the penalty provided
for the same offence under section 493(a) is fine which
may extend · to Rs. 500. It will not therefore be in
consonance with the intention of the Legislature to
hold that proceedings under section 488 are in substance the same as proceedings under section 493, so
as to be subject to the disability enacted in the proviso to section 363. If the intention of the Legislature
was that proceedings
taken under section 488
read
with rule 62 of Schedule XVII should bar proceedings under section 363, it could have said so expressly
as it did with reference to proceedings taken under
section 493. To accede to the contention of the respondent would be to read into section 363 limitations
which are not to, be found there. We cannot accept
such a construction.
It was next argued by learned counsel for the respondent that it was open to the Corporation to have
asked for demolition of the building in the proceedings taken by it under section 488, and as it did not
ask for it and was content with the imposition of fine,
it was precluded from claiming that relief in the
present proceedings. This argument is based on section 536, which is as follows :
"When under this Act or under any rule or bylaw made thereunder any person is liable, in respect
of any unlawful work,-
( a) to pay a fine, and
(b) to be required to demolish the work,
a Magistrate may, in his
discretion
and
subject
to the provisions of sections 363, 364 and 493, direct
the said person to pay the fine and also to demolish
the work".
2S.C.R.
SUPREME COURT REPORTS
1001
In his order dated 9-4-1954, the learned Chief Justice expressed a doubt whether the Corporation could
apply
for a demolition
order,
when
instituting
an
application under section 488 for breach of Rule 62 of
Schedule XVII.
We are inclined to share
this doubt.
What Rule 62 prohibits is the erection of a building
without permission, and under that Rule, the breach
is complete when the erection has commenced, without reference
to whether the construction is being
carried on or completed. A question of demolition
cannot therefore arise with reference to a breach of
Rule 62. It can arise only when the construction of the
building is carried on or completed otherwise than in
accordance with the terms of the permission or in
breach of any of the provisions of the Act or the rules.
Now, in the table annexed to section 488, while a
breach of Rule 62 of Schedule XVII is made punishable with fine which may extend to Rs. 200, there is
no similar provision with reference to breach of Rules
3, 14, 25 and 32 of that Schedule. But there is, instead.
a provision that when a direction is asked for under
section 363(1) for demolition, an order can be passed
imposing fine which may extend to Rs. 250. Under
that section, it should be noted, an application for an
order for demolition can be made on three grounds,
viz., (1)
that the erection of building has
been commenced without permission, (2) that it has been carried on or completed otherwise than in accordance
with the terms of the permi;sion, or (3) that it has
been carried on or completed in breach of the provisions contained in the Act or the rules. But there is
this difference between an application based on ground
No. 1 aforesaid and one founded on grounds Nos. 2
and 3, that while a question of demolition cannot arise
with reference to the former when the charge is commencement or the
construction without permissionand at that stage no question of demolition of a
building necessarily arises, it does arise as regards
the latter.
Therefore, when an application is
made
under section 488, whether an order could be made
under section _536 for demolitio'.1 will depend on the
ground on which it is founded. And, where, as in the
1955
Corporation of
Ca/&utta
v.
Male hand
Agtzru1al/a
V mkatara,,,.
,V)'ar J.
1955 <
Corporatio1t of•
Calcutta
-
v.
Mulchand
Agarwalla
V"""4taroma
Ayyar J.
.
1002
. SUPREME COURT REPORTS
[1955]
present case, the application was based solely and
exclusively on a. breach of Rule 62 of Schedule XVII,
no order could have - been passed for demolition under
section 536.
It is immaterial for the present purpose
that. the building had . been completed when the order
was passed on 11-4-1951 on the ·application under section 488, because the power to pass an order under
•ection 536 would depend on what the charge as
actually laid in the petition was and not on what it
might have been.
But even if the Magistrate had the power under section 536 to order demolition of the · building, .. we cannot hold that ·the appellant is precluded from asking
· for such an order under section 363 merely by reason
of the fact · that the Magistrate had failed · to pass such
an order, -or even that the Corporation . did not ask
for it in the prior proceedings. -There is ' no question
of the application of any principle . of -constructive
res judicata, and there is nothing in the statute which
bars the appellant from claiming relief under section
363.
\Ve cannot therefore· uphold the contention that
the appellant is precluded in any manner by the prior
proceeding.s taken under
section 488 from instituting
the present petition under section 363.
In this view, the point for decision is whether the
order passed by the Municipal Magistrate and · affirmed
by the learned Judge in revision is open to attack on
the merits. The respondent · contends that the Magistrate has under section 363 a ·discretion whether · he
should pass an order for demolition or not, and
that this Court should not in appeal interfere \vith
the exercise of that discretion especially when it has
been concurred in by the High Court. Now, the
langua'ge of section
363
is that the Magistrate
may
pass an order for demolition of the building, and
though the word 'may' mig!it in some contexts be
constructed as meaning 'shall', that is not ·the sense in
which it is used in section 363. We agree with the
resp_ondent that section
363
does · not
require that
when a building is shown to have been erected without permission
or completed
otherwise than in ac-
. cordance with the terms of the permission· or in breach
2 S.C.R.
SUPREME COURT REPORTS
1003
of the building rules, an order for its demolition
should be made as a matter of course. In our opinion,
it does
give the
Magistrate a discretion
whether he
should or should not pass such an order. That was
the construction put in Abdul Samad v. Corporation
of Calcutta( 1 )
on section 449 of the Calcutta Municipal Act,
(Bengal Act III of 1899) which com".sponds
to section 363 of the present Act on language which
is, so far as the present matter is concerned, the same.
In re-enacting the present section in the same terms
as section 449 of Bengal Act III of 1899, it must_ be
taken that
the
legislature has
accepted the interpretation put on them in Abdul Samad v. Corporation of
Ca!cutta(
1
)
as correctly
representing its intention.
It
>hould accordingly be held that the word 'may' in
sectio11 363 does not mean "shall'', and
that the Magisstrate
has under that section a discretion whether he
should pass an order for demolition or not.
Then the question is whether thr exercise of that
discretion by
the courts below is open to review by
this
Court. It is a well-settled
principle
that when
the legislature entrusts to an authority the power to
pass an order in its discretion, 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 fact
or misapprehension of
the
principles
applicable
thereto.
The appellant contends
that the orders under appeal are based on mistakes
and misapprehepsions, and are therefore
liable
to b('.
re:ersed, and that contention must now be examined.
The grounds on which the orders of the courts below
are
based -are (1)
that there has been considerable
delay on the part of the appellant in moving in
the matter, (2) that as in the proceedings taken under
section 488
the respondent has been fined,
an order
for demolition was not called for, anci (3) that the
breach of the building rules has not resu:ted in any
inconvenience
to the public, nor has there been ar.y
complaint from
the residents of the
locality
about
this. The materials placed before us
do not show
(I) [1905] I. L.R. 33 Cal. 287.
g-85 S. C. India/59
1955
Corporation of
Calcutta
v.
MulchanJ
Agarwalla
V enkatarama
Ayyar ].
1955
CorpMatioa of
Calcutta
v.
Mulch and
Agarwalla
V tnkatarama
Ayyar J.
1004
SUPREME COURT REPORTS
[1955]
that there has been any great delay on the part of
the appellant. The learned Judge has stated that the
present proceedings for demolition were taken subsequent to the imposition of fine on 11-4-1951
in the
proceedings
under section
488.
This
is a
mistake.
The proceedings under section 363 had been commtnced as early as
February
1951 when notice was
issued to the ,respondent under the provisions of that
section, and the petition was actually filed in court on
4-4-1951. It is true that the proceedings were pending for nearly two years before the Magistrate, but as
observed by the learned Chief Justice, far from the
Corporation being responsible for it, it appears to
have been the victim of delay on the part of the respondent.
Both the courts below have main! y based their
order on the fact that the
Corporation having taken
proceedings under section 488 and a fine having been
imposed on the respondent, it would be unjust to impose a further penalty for the same offence by way
of demolition. The assumption on which this reasoning rests is that the charge on which the present proceedings have been taken is the same as that on which
the
petition
under
section 488
was
laid.
But,
as
already pointed out, that is not correct, The proceedings under section 488
were taken for erecting
a building without permission, whereas the present
proceedings
are
taken
substantially
for
breaches of
the building rules, which are quite independent of the
charge under Rule 62, and the respondent is therefore not punished
twice over for the same default.
The learned Judge observes that this was not a fit
case for exercising the discretion in favour
of the
appellant,
becaus~ in the prior proceedings under section 488, it did not ask for an order for demolition,
nor was such an order made by the Magistrate. That
is obviously with refernece to section 536 which we
have held to be inapplicable to the present case. Moreover,
when that section
enacts
that
the
Magistrate
could both impose a fine and order demolition of the
building, that clearly indicates that the fact
that a
fine has been imposed should not by itself and with-
2S.C.R.
SUPREME COURT REPORTS
1005
out more, be taken as sufficient
ground for
refusing
demolition.
The courts below were also influenced by the fact
that there was no
complaint from the
neighbours
about the erection of the building. It must be remembered that the building rules are en;1cted generally for the benefit of the public, and where those rules
have been violated and proceedings
are taken for
an
order for demolition o£ the building under section 363,
what has to be decided is whether the breaches are of
a formal
or trivial character, in which case the
imposition of a fine might meet the requirements of the
case, or whether they are serious and likely to affect
adversely the interests of the public, in which case it
would be proper to pass an order for demolition.
Whether there has been a complaint from the public
• would not as such be material for deciding the question, though if there was one, it would be a piece of
evidence
in deciding whether the interests
of the
public have suffered by reason of the breaches.
The pcsition, therefore, is that the orders of the
courts below are based on mistakes and misdirections,
and cannot be supported. The conduct of the respondent in adopting a hide-and-seek attitude in completing the constru~rions in deliberate defiance of the
law calls for severe action. It would be most unfortunate, and the interests of the public will greatly
suffer, if the notion were to be encouraged that a person might with impunity
break the
building rules
and put up a construction and get away with it t1Il
payment of fine.
All this would be good
justificatiGu
for making an order for demolition. But ·then, it is
now nearly
five years since
the building was
completed, and though section 363(2) which directs that
no application for demolition shall be
instituted after
a lapse of. five years from the date of the work does
not,
in terms, apply
as
the proceedings have
been
started in time, we do not feel that after the laose of
all this time, an order for demolition is called • for in
the interests of the public. We also take into account
the bet that the orders in question would not have
come before us in the normal course by way of appeal,
1955
Corporatio11 of
Calcutta
v.
Mule hand
Agarwal/a
Y mkatarama
Ayyar].
1955
CorPcration of
Calcutta
v.
Mule hand
Agarwal/a
Venkatarama
Ayyar J.
1955
November 23.
1006
SUPREME COURT REPORTS
[1955]
were it not that the appellant desired that the decision of this Court should be obtained on certain questions of importance, and
that purpose has
been
achieved. On a consideration of all the circumstances,
we do not think that this is a fit case in which we
should pass an order for demolition. We should, however, add that we find no justification for the strictures passed on the appellant by the court below.
In the result, the appeal is dismissed.
IN THE MATTER OF
D AN ADVOCATE OF THE SUPREME COURT. •
[B. K. MuKHERJEA, C. J., S. R. DAs and
VENKATARAMA AYYAR JJ.)
Bar Councils Act-Misconduct in capacity other than professional
-Jurisdiction of Court-Bar
Councils
Act (XXXVIII of 1926),
s. JO-Supreme Court Rules, Order IV, Rule 30.
Section 10 of the Bar Councils Act confers on the Court juris~
diction to take disciplinary_ action against an Advocate not merely
for professional misconduct but any other misconduct committed in
any other capacity as well and leaves it to the Court's discretion to
t2ke such action as it thinks fit in any suitable case.
<
The Advocate-General of Bombay v. Three Advocates ([1934]
I.LR. 59 Born. 57), In the matter of an Advocate ([1936] I.L.R. 63
Cal. 867) and In re a Pleader (I.L.R. [1943] Mad. 595), referred to.
In re Thomas fames Wallace ([1866] L.R. I P.C. 283), and In
re an Advocate of Benares (A.LR. [1932] All. 492), held inapplicable.
Consequently, in a case where an Advocate figuring as an accused in a case under the Bombay Prohibiti9n
Act was persistently
rud!! to and contemptuous of the trial Magistrate and did all in his
po\ver to hold up the trial and bring the administration of justice
into
contempt,
he
~'<ls guilty of misconduct
and as such was
liable to be suspended from practice.
D in person
M.
C. Setalvad, Attorney-General for India, as
amicus curiae.