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The Corporation of Calcutta Vs. the Building Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1573 of 1966
Judge
Reported inAIR1972Cal318
ActsCalcutta Municipal Act, 1951 - Sections 6, 24, 34, 414, 414A and 414(3)
AppellantThe Corporation of Calcutta
RespondentThe Building Tribunal and ors.
Appellant AdvocateSunil Kumar Basu, Adv.
Respondent AdvocateKanika Banerjee, Adv.
Excerpt:
- .....by the corporation of calcutta. it is directed against the appellate order of the building tribunal passed in an appeal under section 414-a of the calcutta municipal act, 1951. 2. the opposite party no. 2 as proprietor of sree printers & binders and as the managing director of esscbe printers pvt. ltd., is a monthly tenant of a structure in the ground floor of premises no. 42. dharamtolla street calcutta, since april, 1955. sometime in the year 1960, by two letters dated 25-8-1960 and 3-9-1960 complaint was made by the owner as well as some co-tenants of the said premises, to the city architect and the commissioner of the corporation of calcutta respectively, that the said opposite party no. 2 without any permission covered the open space with corrogated sheets and constructed a.....
Judgment:
ORDER

Amiya Kumar Mookerji, J.

1. This Rule was obtained by the Corporation of Calcutta. It is directed against the appellate order of the Building Tribunal passed in an appeal under Section 414-A of the Calcutta Municipal Act, 1951.

2. The opposite party No. 2 as proprietor of Sree Printers & Binders and as the Managing Director of Esscbe Printers Pvt. Ltd., is a monthly tenant of a structure in the ground floor of premises No. 42. Dharamtolla Street Calcutta, since April, 1955. Sometime in the year 1960, by two letters dated 25-8-1960 and 3-9-1960 complaint was made by the owner as well as some co-tenants of the said premises, to the City Architect and the Commissioner of the Corporation of Calcutta respectively, that the said opposite party No. 2 without any permission covered the open space with corrogated sheets and constructed a room on the corridor space, thus created an unauthorised structure. On receipt of the said complaint, the site was inspected. Two unauthorised sheds of C. I. Sheets in the side space were detected. The said unauthorised sheds infringed Rules 32 and 33 of Schedule XVI of Calcutta Municipal Act, 1951. Thereupon, on 30th July 1962, a notice under Section 414 (1) of the Calcutta Municipal Act, 1951, (hereinafter referred to as the Act) was served upon the said opposite party No. 2. On receipt of the said notice, the opposite party No. 2 on 4th August, 1962, addressed a letter to the City Architect of the Corporation of Calcutta, wherein he denied any construction, addition and alterations and, contended that the existing structures were more than 12 years old. Thereafter, on the 15th of May, 1963, the Commissioner passed an order of demolition under Section 414 (3) of the Act after duly intimating the said opposite party No. 2 the date of hearing which was fixed on 15th May, 1963 The opposite party No. 2, however, did not appear before the Commissioner at the date of the hearing of the demolition case. Immediately after the said order of demolition was passed, the said opposite party No. 2 by his letter dated 23rd May, 1963, asked the Commissioner, Calcutta Corporation, for rehearing of the case, and stay of the implementation of the order that passed on 15th of May 1963. The Commissioner rejected the prayer for review. Thereupon, a Lawyer's notice purported to be under Section 80 of the Code of Civil Procedure was served upon the Commissioner and the Special Officer (Building), Corporation of Calcutta, by the opposite party No. 2 expressing his intention to file a suit for setting aside order of the Commissioner and for other reliefs. A reply was sent thereto intimating that the Commissioner's order should not be stayed unless an injunction was obtained from a Civil Court. Thereafter, on the 17th of December, 1963, the opposite party No. 2 again applied to the Commissioner for review of his order passed on 15th May, 1963. On 4th of April, 1960, (1964 ?) the Commissioner declined to grant review and by a letter dt. 16th of March, 1963 (1965 ?) addressed to the opposite party No. 2 asked him to carry out the order of demolition. By Amending Act XVIII of 1964. Section 414-A was brought into force on the 1st April, 1965, The right of appeal was given under that section against the order of the Commissioner passed under Subsection (3) of Section 414 within the 30 days from the date of such order. On 16th of March, 1965, notice was given to the opposite party No. 2 to carry out the demolition order dated 15th of May, 1963. On the 20th of June, 1965, the opposite party No. 2 again applied for the third time for the review of the demolition case. On 21st January, 1966, the Commissioner rejected the opposite party No. 2's said application after hearing the parties. Thereafter on the 19th February, 1966, the opposite party No. 2 filed an appeal before the Building Tribunal under Section 414-A of the Act against the order dated 21-1-1966 passed by the Commissioner by which the opposite party No. 2's application for review had been rejected. The said appeal was filed against the Corporation of Calcutta and the Commissioner was not made a party. On 13th April, 1966, the Building Tribunal allowed the opposite party No. 2's appeal upon the findings that the sheds in question were erected more than 12 years before the issue of notice in Sub-section (1) of Section 414. Accordingly, provisions of Section 414, Clause (4) would be attracted. Therefore, no action could be taken under that section in respect of the sheds and as a result, the demolition case against the opposite party No. 2 was liable to be dropped.

3. Being aggrieved against thesaid appellate order of the Building Tribunal, the Corporation of Calcutta moved this Court on an application underArticle 227 of the Constitution and obtained the present Rule.

4. Mr. Basu, appearing on behalf of the petitioner made a two-fold submission. In the first place he contended that as the order dated 21st of January, 1966, was not an order passed under Section 414 (3) of the Act, but the said order was merely an order rejecting a review application inasmuch as the order for demolition under Section 414 (3) of the Act was made on the 15th of May, 1963, and that order could not be set aside by the Tribunal under the provisions of the Section 414-A of the Act; moreover, the order dated 21-1-1966 could not be set aside while the order dated 15th of May, 1963. remained valid and subsisting, thereby the Building Tribunal exercised its jurisdiction not vested in it by law.

5. Under the Calcutta Municipal Act, 1951, there was no provision for review. The provisions of appeal under Section 414-A was introduced for the first time by the Amending Act XVIII and from 1st April. 1965. Section 414-A of the Act reads as follows :

'Any person dissatisfied with the order of the Commissioner made under Sub-section (3) of Section 414 may, within 30 days from the date of the order, present an appeal accompanied by a copy of the order to the Tribunal constituted under Section 391-B (and the President of the Tribunal) may stay the execution of the order for such period or periods as (he may think fit) or until the disposal of the appeal.'

6. It appears that in the instant case the order of demolition was passed on the 15th May, 1963, and the opposite party No. 2's appeal was filed on the 19th of February, 1966. So, on the face of it the said appeal was barred by limitation. Therefore I am of opinion that the Tribunal had outstepped the limits of its jurisdiction by entertaining the opposite party No. 2's Appeal under Section 414-A of the Act, and its order cannot be sustained.

7. Mr. Basu next contended that as Commissioner of Corporation of Calcutta had not been made a party in the said appeal preferred by the opposite party No. 2, the order of the Building Tribunals setting aside the order of the Commissioner passed under Section 414 (3) of the Act was illegal and without jurisdiction.

8. Under Section 6 of the Act the three authorities, namely, (a) The Corporation, (b) The Standing Committees and (c) the Commissioner are charged with carrying out the provisions of the Act. Under Section 24 of the Act, the Municipal Government of Calcutta is vested in the Corporation but the Corporation shall not be entitled to exercise or discharge any powers, duties or function expressly assigned to it by or under that Act or any other law to a Standing Committee or to the Commissioner. Under Section 34 of the Act, the Commissioner may delegate to any Municipal Officer any of his powers, duties or functions but not of those conferred under Subsection (3) of Section 414. So, where the Commissioner exercises statutory function, imposed upon him by the statute and in regard to which he is the sole authority, he does not exercise powers as an Agent of the Corporation and so, impleading of the Corporation is not enough for the purpose of challenging the impugned order passed by the Commissioner under Section 414 (3) of the Act. So the absence of the Commissioner as a party in the present appeal, has rendered the appeal bad and defective.

9. In the result this Rule is made absolute, the impugned order of the Building Tribunal is set aside and that of the Commissioner dated 15th of May, 1963, passed under Section 414 (3) of the Act, is restored. There will be no order as to costs.


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