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Mahadev Shaw Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 8 of 1964
Judge
Reported inAIR1971Cal161,74CWN733
ActsCalcutta Municipal Act, 1951 - Section 608A, 608A(2) and 608A(3)
AppellantMahadev Shaw
RespondentCorporation of Calcutta
Appellant AdvocateJnan Ranjan Ganguly, Adv.
Respondent AdvocateSunil Kumar Basu, Adv.
DispositionAppeal dismissed
Excerpt:
- .....mookerjee, j.1. this appeal is under clause 15 of the letters patent against the judgment of our learned brother t. p. mukherji j. under leave, given by him under the said clause.2. the appeal is directed against the judgment and decree of our learned brother, setting aside the judgments and decrees of the courts below, decreeing the plaintiff's suit for permanent injunction against the respondent-corporation of calcutta to restrain them from demolishing the plaintiff's disputed structures.3. the relevant facts are admitted and they are as follows: the disputed construction appears to have been detected by the corporation authorities in december, 1951. they were actually completed in or about march, 1952. during these periods, the old calcutta municipal act of 1923 was in force and the.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is under Clause 15 of the Letters Patent against the judgment of our learned brother T. P. Mukherji J. under leave, given by him under the said Clause.

2. The appeal is directed against the judgment and decree of our learned brother, setting aside the judgments and decrees of the courts below, decreeing the plaintiff's suit for permanent injunction against the respondent-Corporation of Calcutta to restrain them from demolishing the plaintiff's disputed structures.

3. The relevant facts are admitted and they are as follows: The disputed construction appears to have been detected by the Corporation authorities in December, 1951. They were actually completed in or about March, 1952. During these periods, the old Calcutta Municipal Act of 1923 was in force and the Corporation authorities duly issued a stop-work notice under Section 365 of the said Act Actually, however, no step was taken under Section 363 of the above Act, either in the shape of issue of a show cause notice under that Section or an enquiry, as contemplated therein. After the new Act had come into force on May 1, 1952, proceedings were taken for demolition in accordance with the said new Statute and, thereafter, the instant suit was filed on April 3, 1954, for restraining those proceedings.

4. The suit was decreed by the first two courts. On appeal, their concurrent decision was reversed by our learned brother T. P. Mukherji, J. upon the view inter alia that, having regard to Section 608-A, Sub-section (3) the procedure for demolition in the instant case must be the procedure, prescribed by the new Act of 1951.

5. In our view, our learned brother made the correct approach as to the legal position in the instant case and his decision must be affirmed.

6. It is clear from what we have stated above, that prior to the new Act of 1951, there was no suit or legal proceeding, instituted under the old Act of 1923 for the demolition in question, and, in the instant case, no such suit or legal proceeding could also be instituted after the coming into operation of the new Act as the preliminary enquiry, necessary for a proceeding under Section 363 of the old Act, under the said section, had not, admittedly, been made and it could no longer be made after the coming into operation of the new Act of 1951, as such power or step was not preserved under this new Act. Obviously, therefore, it was not a case, where a suit or legal proceeding for the demolition in question had either been instituted or might have been instituted, as contemplated under Section 608-A, Sub-sections (1) and (2), and, accordingly, this will not be a case, covered by the said Sub-section (2), thus plainly indicating that the procedure, prescribed by the new Act of 1951, has to be followed for purposes of the disputed demolition [vide Sub-section (3)]. That is what has been done by the respondent-Corporation and, accordingly, they are not liable to be restrained by any injunction in the matter.

7. Upon the above view, we dismiss this appeal.

8. There will be no order as to costs.

Amiya Kumar Mookerji, J.

9. I agree.


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