Holding

In the absence of a Municipal Magistrate appointed under section 469, a Metropolitan Magistrate may take cognizance of and try offences under the Delhi Municipal Corporation Act.

Summary

Attiq‑ur‑Rehman filed a civil suit to restrain the Municipal Corporation of Delhi from demolishing alleged unauthorised construction on his property. The corporation later lodged a criminal complaint under sections 332 and 461 of the Delhi Municipal Corporation Act in the Court of a Metropolitan Magistrate, even though no Municipal Magistrate had been appointed under section 469 of the Act. The appellant sought a stay of the criminal proceedings, arguing that the Metropolitan Magistrate lacked jurisdiction, but the applications were rejected and a revision petition was dismissed. The Supreme Court examined whether, in the absence of a Municipal Magistrate, a Metropolitan Magistrate could take cognizance and try offences under the Act. It held that when no special court is constituted, ordinary criminal courts, including Metropolitan Magistrates, retain jurisdiction to try such offences. Consequently, the appeal was dismissed and the trial was ordered to proceed in the Metropolitan Magistrate’s court.

Issues considered

Whether a Metropolitan Magistrate has jurisdiction to take cognizance of and try offences punishable under the Delhi Municipal Corporation Act when no Municipal Magistrate has been appointed under section 469 of the Act.

Legislation cited

Code of Criminal Procedure, 1973s. 11, s. 13, s. 14, s. 4, s. 5, s. 6, s. 8
Delhi Municipal Corporation Act, 1957s. 332, s. 461, s. 466(a), s. 467, s. 469, s. 470, s. 471

Subjects

jurisdictionmunicipal magistratemetropolitan magistrateDelhi Municipal Corporation Actcriminal procedureunauthorised constructioncognizancespecial leavecriminal appeal

Judgment

_t

ATTIQ-UR-REHMAN A
v.
MUNICIPAL CORPORATION OF DELHI AND ANR.

FEBRUARY 29, 1996
B
[DR. A.S. ANAND AND S. SAGHIR AHMAD, JJ.]

Delhi Municipal Corporation Act, 1957: Sections 332, 461, 466 (a),
467, 469 and 470.

Code of Criminal Procedure, 1973: Sections 4, 5, 6, 8, 11, 13 and 14. C

Municipal Corporation Act-Offences undei-Metropolitan Magistrate
-Power to take congnisance and try offences under Delhi Municipal Corpora-
tion Act in the absence of appointment of a Municipal Magistrate-Complaint
against appellant for unauthorised construction-Suit filed by appellant D
restraining respondent-Corporation from demolishing the unauthorised con-
struction decreed by Trial Court-Thereafter criminal complaint lodged
against the appellant under sections 332 and 461 of the Delhi Municipal
Corporation Act-At the relevant time no Municipal Magistrate had been
appointed in accordance with the provision of Section 469 of the Act-There-
fore complaint filed in the Court of Metropolitan Magistrate-No notification E
issued conferring on latter powers of Municipal Magistrate-Applications
moved by appellant for stay of criminal proceedings during pendency of civil
suit as well as that Metropolitan Magistrate had no jurisdiction to try him
rejected-Criminal revision preferred by appellant-Summary rejection by
High Court-Appeal-Held-Jn the absence of courts of special jurisdiction F
i.e. Municipal Magistrates, to be apopointed under Section 469 of the Act, a
Judicial Magistrate of the First Class or a Metropolitan Magistrate, as the case
may be, has the jurisdiction and powers to try the offences under the Act in
accordance with the procedure envisaged by Section 467 of the Act and in
accordance with the limitation the time prescribed for initiation of the
criminal proceedings under Section 471 of the Act-Where, no court of a G
Municipal Magistrate has been constituted under Section 469 of the Act and
no Notification has also been issued conferring the powers of a Municipal
Magistrate on a particular Judicial Magisrate of the First Class or a
Metropolitan Magisrate, as the case may be, the jurisdiction of an ordinary
criminal court to take cognisance of the offences committed under the Act, H
19
20 SUPREME COURT REPORTS [1996] j S.C.R.

A rules, regulations or bye-laws made thereunder is exerciseable by the courts of
general jurisdiction established to try offences under the Indian Penal Code
as well as the offences under any other law-The Metropolitan Magistrate
committed no effor in taking cognizance of the complaint.

Criminal Courts--Bar of jurisdiction to try offences under the Delhi
B Municipal C01poration Act-The Government has an obligation under Sec-
tion 469 of the Act to appoint Municipal Magistrate for trial of offences under
the Act, rules, regulations or bye-laws made thereundei-Govemment has the
discretion to appoint one or more Municipal Magistrates--But the Govern-
ment is not relieved of its obligation to appoint Municipal Magistrates-Once
C such Municipal Magistrates are appointed, they alone have the jurisdiction to
try offences under the Act-The bar under Section 470 of the Act becomes
operative only when a Municipal Magistrate has been appointed for trial of
offences under the Act.

Exclusion of jurisdiction of a court of general jurisdiction can be
D brought about only by setting up of a court of limited jurisdiction in respect
of the limited field provided that the vesting and the exercise of that limited
jurisdiction is clear and operative-Where there is no valid machinery for the
exercise of jurisdiction in a specific case, the exercise of jurisdiction by the
Judicial Magistrates or the Metropolitan Magistrates, as the case may, is not
E excluded.
Criminal revision-Summary dismissal by High Court-Duty of High
Court to give reasons.

Maxim "lex non cojit ad impossibillia''-Meaning and applicability of
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
281of1996.

From the Judgment and Order dated 27.5.91 of the Delhi High Court
in Cr!. R. No. 126 of 1991.
G
Shri Narain, Sandeep Narain and Yeshwant Mathur for the Appel-
~ T

R.K. Maheshwari for the Respondents.

H The Order of the Court was delivered :
ATTIO-UR-REHMANv. M.C.D. 21

Special leave granted. A

The only question involved in this case is whether in the absence of
the appointment of a Municipal Magistrate, a Metropolitan Magisrate can
take cognizance and try an accused for commission of an offence punish-
able under the Delhi Municipal Corporation Act, 1957 ?
B
The circumstances in which this question has arisen need a brief
notice at the thresh~hold.

On 6.6.1989, a Junior Engineer of the complainant Municipal Cor-
poration of Delhi (respondent No.1 herein) filed a report against the C
appellant alleging unauthorised construction of roof and a stair-case on the
ground floor of the appellant's property situate at 1535-1537, Church Road,
Kashmere Gate, Delhi. The appellant apprehending demolition of his
house, filed Civil suit No. 616 of 1989 in the Court of Sub-Judge, Delhi,
contending inter alia- that the replacement of the roof and the alleged D
repairs/alterations were permissible under the building bye-laws and re-
quired no formal order of sanction and, therefore, the appellant could not
be said to have carried out any unauthorised construction and sought an
injunction against Respondent No.1 restraining it from demolishing the
alleged unauthorised construction. After contest, the suit was decreed. It
was found that the notice for demolition had not been properly served. E
Respondent No.1 was restrained from demolishing the property of the
appellant except "in due process.of law." The Junior Engineer of respon-
dent No.l filed three more reports on 21.8.1989, 4.9.1989 and 17.11.1989
alleging further unauthorised constructions in the said property by the
.;. appellant . On the basis of those reports, Municipal Corporation of Delhi, F
respondent No.1, on 17th November, 1989 filed a criminal complaint (Case
No. 533 of 1989) under section 332 read with Section 461 of the Delhi
_Municipal Corporation Act, 1957 (hereinafter 'the Act') against the appel-
lant in the Court of Sh. R.S. Khanna, Metropolitan Magistrate, Delhi. The
appellant moved two applications before the Metropolitan Magistrate,
Delhi one for the stay of criminal proceedings during the pendency of the G
civil suit and the second ;eeking return of the complaint on the ground that
the Metropolitan Magistrate had no jurisdiction to try him for the offence
under section 332 read with Section 461 of the Act in view of the provisions
of Section 469 of the Act and in the absence of any Notification conferring
powers of the Municipal Magistrates on the Metropolitan Magistrates. H
22 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Both the applications were rejected on 26th February, 1991. The learned
Metropolitan Magistrate held that the plea of the appellant that the court ;;..
had no jurisdiction to try the offence was not maintainable and there was
no justification for staying the criminal proceedings during the pendency
of the civil suit as the scope of the suit and the criminal complaint was
B different. Aggrieved, the appellant filed a criminal revision petition in the
High Court of Delhi which was summarily dismissed on 26th May, 1991.
Hence this appeal by special leave.

Learned counsel for the appellant submitted that an offence under
the Act can only be tried by a Municipal Magistrate appointed under the
C Act and a Metropolitan Magistrate exercising general jurisdiction has no
authority to take cognizance of an offence under the Act and try any person
accused of an offence under the Act. It was argued that the learned
Metropolitan Magistrate fell in error in rejecting the applications and the
High court also failed to appreciate the importance of the question in-
volved and erroneously dismissed the Criminal Revision Petition in liminc
D by a non-speaking order.
Learned counsel for the respondent argued with equal vehmence
that in the absence of appointment of Municipal Magistrates under the
Act, jurisdiction to try "offences under other laws" vested in the
E Metropolitan Magistrates and the appellant was rightly put on trial before
the Metropolitan Magistrate.

We do find some substance in the submission of learned counsel for
the appellant that the High Court ought not to have dismissed the criminal
revision petition by a non-speaking order in limine, in view of the impor-
tance of the question raised in the revision petition but we are of the
F
opinion that instead of remanding the case back to the High Court, we
need to decide the question of law ourselves since on facts there is no
dispute and the appeal has remained pending in this Court for about five
years.

G With a view to answer the question noted in the opening part of our
judgment, it is necessary to notice some of the relevant provisions of the
Act and the Code of Criminal Procedure 1973 (hereinafter Cr. P.C.)

Section 466(a) of the Act makes Cr. P.C. applicable to the proceed-
ings under the Act and makes an offence under Section 313 of the Act
H cognizable.
ATTIO-UR-REHMANv. M.C.D. 23

Section 467 deals with the prosecution of offences and reads as A
under:-

"467. Prosecutions- -Save as otherwise provided in this Act, no
court shall proceed to the trial of any offence,-

(a) under sub-section (5) of section 313 or section 332 or sub-sec- B
tion (1) of section 333 or sub-section (1) of section 334 or section
343 or section 344 or section 345 or section 347 except on the
complaint of or upon information received from such officer of the
Corporation, not being below the rank of a Deputy Commissioner,
as may be appointed by the Administrator; C
xxx xxx xxx"

Section 469 of the Act reads as follows :

"469. Municipal Magistrate.
D
(1) The Central Government may appoint one or more magisirates
of the first class for the trial of offences against this Act and against
any rule, regulation or bye-law made thereunder and may prescribe
the time and place at which such magistrate or magistrates shall
sit for the despatch of business. E
(2) Such magistrates shall be called municipal magistrate and shall
beside the trial of offences as aforesaid, exercise all other powers
and discharge all other functions of a magistrate as provided in
this Act or any rule, regulation or bye-law made thereunder.
F
(3) Such magistrates and the members of their staff shall be paid
such salary, pension, leave and other allowances as may, from time
to time, be fixed by the Central Government.

( 4) The Corporation shall, out of the Municipal Fund, pay to the G
Central Government the amounts of tl\e salary, pension, leave and
other allowances as fixed under sub-section (3) together with all
other incidental charges in connection with the establishments of
the said magistrates.

(5) Each such magistrate shall have jurisdiction over the whole of H
24 SUPREME COURT REPORTS [1996] 3 S. C.R.

A Delhi.

(6) For the purposes of the Code of Criminal Procedure, 1898, all
municipal magistrates appointed under this Act shall be deemed
to be magistrates appointed under Section 12 of the said Code.

B (7) Nothing in this shall be deemed to preclude any magistrate
appointed hereunder from trying any offence under any other law."

Section 470 of the Act provides as follows :

"470. All offences against this Act or any rule, regulation or bye-law
c made thereunder, whether committed within or without the limits
of Delhi, shall be cognizable by a municipal magistrate and such
magistrate shall not be deemed to be incapable of taking cog-
nizance of any such offence or of any offence under any enactment
which is repealed by, or which ceases to have effect under this Act
D by reason only of his being liable to pay any municipal tax or rate
or benefitted out of the Municipal Fund."

Chapter II of Cr. P.C. deals with the Constitution of Criminal Courts
and offices.

E Section 4 Cr. P.C. reads as follows :

"4. Trial of offences under the Indian Penal Code and other /aws.-
(1) All offences under the Indian Penal Code (45 of 1860) shall
be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
F
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences."
G
Section 5 Cr. P.C. Provides as follows :

"5. Saving- Nothing contained in this Code shall, in the absence
of a specific provisions to the contrary, affect any special or local
H law for the time being in force, or any special jurisdiction or power
ATTIO-UR-REHMANv. M.C.D. 25

conferred, or any special form of procedure prescribed, by any A
other law for the time being in force. 11

Section 6 Cr. P.C. reads as follows :-

"Classes of Criminal Courts. - Besides the High Courts and the
Courts constituted under any law, other than this Code, there shall B
be, in every State the following classes of Criminal Courts, namely-

(i) Courts of Session ;

(ii) Judicial Magistrates of the first class and, in any metropolitan
area, Metropolitan Magistrates; C
(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates."

Sections 8 and 16 of Cr. P.C. deal with the courts of Metropolitan D
Magistrates and inter alia provide that in every metropolitan area, the State
Government may, after consultation with the High Court establish courts
of Metropolitan Magistrates at such places and in such number as it may
specify. The presiding officers of such courts shall be appointed by the
High Court and the jurisdiction and powers of every such Magistrate shall E
extend throughout the metropolitan area. The High Court shall appoint a
Metropolitan Magistrate as Chief Metropolitan Magistrate in every
metropolitan area and may also appoint Additional Chief Metropolitan
Magistrates and such other Metropolitan Magistrates as it may deem
necessary.
F
Section 11 of Cr. P.C. deals with the establishment of the courts of
the Judicial Magistrates while Section 13 deals with the appointments of
Special Judicial Magistrates.

Section 14 Cr. P.C. deals with the local jurisdiction of Judicial G
Magistrates and inter-alia provides :

"14. Local jurisdiction of Judicial Magistrates - (1) Subject to the
control of the High Court, the Chief Judicial Magistrate may, from
time to time, define the local limits of the areas within which the
Magistrates appointed under Section 11 or under Section 13 may H
26 SUPREME COURT REPORTS [1996) 3 S.C.R.

A exercise all or any of the powers with which they may respectively
be invested under this Code :

Provided that the Court of a Special Judicial Magistrate may
hold its sitting at any place within the local area for which it is
established.
B
(2) ....................................... .

(3) .......................................... ..

C It is in the light of the aforesaid provisions that we have to resolve
the question formulated above.

Facts are not in dispute insofar as the question of jurisdiction is
concerned. Admittedly at the relevant time no Municipal Magistrate had
been appointed in accordance with the provisions of Section 469 of the Act
D and the complaint was filed by respondent No. 1 in the Court of
Metropolitan Magistrate, Delhi, for trial of an offence punishable under
Section 332 of the Act. The learned Metropolitan Magistrate is a Judicial
Magistrate of the First Class but there was no notification by which the
powers of Municipal Magistrates were conferred on him.
E From a plain reading of Section 4 Cr. P.C. (supra) it emerges that
the provisions of Criminal Procedure Code are applicable where an offence
under the Indian Penal Code or under any other law is being investigated,
inquired into, tried or otherwise dealt with.

F Section 469 of the Act empowers the Central Government to appoint
one or more Magistrates of the First Class to try offences under the Act.
All such Magistrates are called Municipal Magistrates and shall besides
the trial of offences under the Act, rules, regulations or bye-laws framed
thereunder, exercise all other functions of a Magistrate as provided in the
Act and are not precluded from trying offences under any other law as
G well. Every Municipal Magistrate appointed under Section 469 of the Act
by the Central Government is a Judicial Magistrate of the First Class and
shall be deemed to be a Magistrate appointed under Section 12 Cr. P.C.
Thus, no person who is not a Judicial Magistrate of the First Class can be
conferred powers of a Municipal Magistrate to try offences under the Act,
H rules, regulations or bye-laws made under the Act.
)-
< ATTIO-UR-REHMANv. M.C.D. 27

The bar of jurisdiction of ordinary criminal courts to try offences A
under the Act is brought about by Section 470 of the Act which inter alia
,.(_ provides that all offences under the Act, whether committed within or
without the li111its of Delhi shall be cognizable by a Municipal Magistrate.
Vide Section 467 of the Act no court shall proceed to the trial of any
offence specified in the section, including an offence.under Section 332 of B
the Act except on a complaint of or information received from an officer,
not below the rank of Deputy Commissioner, appointed by the Ad-
ministrator of the Corporation.

Keeping in view the scheme of the Act and the relevant provisions
of the Co.de ~f Criminal Procedure, it emerges that the Government has C
an obligation under Section 469 of the Act to appoint Municipal
Magistrates for trial of offences under the Act, rules, regulations or bye-
laws made thereunder. The use of the word "may" in Section 469 of the Act
only indicates that the Government has the discretion to appoint one or
more Municipal Magistrates but it certainly does not relieve the Govern- D
men! of its obligation to appoint Municipal Magistrates and once such
Municipal Magistrates are appointed, they alone would have the jurisdic-
~ tion to try offences under the Act as per the mandate of Section 470 of the
Act. The bar under Section 470 of the Act becomes operative only when
a Municipal Magistrate has been appointed for trial of offences under the E
Act. The jurisdiction of the criminal courts under Section 4 Cr. P.C. is
comprehensive and exhaustive. To the extent that no valid machinery is set
up under any other law for trial of any particular case, the jurisdiction of
the ordinary criminal court cannot be said to have been excluded. Ex-
clusion of jurisdiction of a court of general jurisdiction can be brought
-I about only by setting up of a court of limited jurisdiction in respect of the F
limited field provided that the vesting and the exercise of that limited
jurisdiction is clear and operative. Thus, where there is no valid machinery
for the exercise of jurisdiction in a specific case, the exercise of jurisdiction
by the Judicial Magistrates or the Metropolitan Magistrates, as the case
may, is not excluded. The law and procedure for trial of cases under the G
Indian Penal Code and those under other statutes, according to Section 4
~ Cr. P.C., is not different except that in the cases of offences under other
laws, the procedure laid down by the Cr. P.C. is subject to the provisions
of the relevant enactment for the time being in force for regulating the
·manner of trial of offences under that enactment. H
28 SUPREME COURT REPORTS [1996] 3 S.C.R.

A A conjoint reading of the provisions of Cr. P.C. and the Act, there-
fore, unambiguously suggests that in the absence of courts of special
jurisdiction i.e. Municipal Magistrates to be appointed under Section 469
of the Act, a Judicial Magisrate of the First Class or a Metropolitan
Magistrate, as the case may be, shall have the jurisdiction and powers to
try the offences under the Act in accordance with the procedure envisaged
B
by Section 467 of the Act and in accordance with the limitation the time
prescribed for initiation of the criminal proceedings under Section 471 of
the Act. This interpretation is in accord with the position that every offence
committed under the Indian Penal Code or under any other law for the
time being in force must be tried and an accused cannot be permitted to
C raise any objection with regard to the forum for trial of the offence, where
the specific forum has not been constituted under the Act because the law
does not contemplate an offence, to go untried. Where, no court of a
Municipal Magistrate has been constituted under Section 469 of the Act
and no Notification has also been issued conferring the powers of a
D Municipal Magistrate on a particular Judicial Magistrate of the First class
or a Metropolitan Magistrate, as the case may be, the jurisdiction of an
ordinary criminal court to take cognizance of the offences committed under
the Act, rules, regulations or bye-laws made thereunder is exerciseable by
the courts of general jurisdiction established to try offences under the
Indian Penal Code as well as tlie offences under any other law.
E
We, therefore, unhesitatingly come to the conclusion that in the
absence of establishment of the courts of a Municipal Magistrate under
Section 469 of the Act, the Magistrates of the First Class including
Metropolitan Magistrates are competent to try offences punishable under
p the Act, rules, regulations or bye-laws made thereunder. Our answer to the
question posed in the opening part of the judgment, therefore, is in the
affirmative.

In view of the aforesaid discussion, we do not find any error to have
been committed by the learned Metropolitan Magistrate in taking con-
G gnizance of the complaint filed by respondent No. 1 under Section 332 read
with Section 461 of th.e Act against the appellant since it is not disputed
that the complaint had been filed in the manner prescribed by the Act.
Respondent No. 1 could not have filed the complaint before a Municipal
Magistrate, since no such Municipal Magistrate had been appointed. The
H legal maxim 'lex non cojit ad impossibillia' which means "the law does not
ATTIO-UR-REHMANv. M.C.D. 29

compel a man to do that which he cannot possibly do" is squarely attracted A
.( to the fact situation in this case. This appeal, therefore, must fail and is
hereby dismissed. The trial court is directed to expeditiously conduct the
trial of the criminal complaint No. 533 of 1989 for the offence under
Sections 332/461 of the Delhi Municipal Corporation Act, 1957. We need
not emphasise that if in the meanwhile a court or'Municipal Magistrate has
been established under Section 469 of the Act, the trial of the complaint B
shall be conducted by that court and the complaint shall be deemed to have
been transferred to that court for its trial in accordance with law from the
court of the Metropolitan Magistrate. Nothing said hereinabove shall,
however, be construed as any expression of opinion on the merits of the
case. c
T.N.A. Appeal dismissed.