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Tripendeswar Mitter Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal84
AppellantTripendeswar Mitter
RespondentCorporation of Calcutta
Excerpt:
building - 're-erection'--renewing or repairing a roof replaced on its former site--reconstruction not exceeding one-half its cubical extent--'building' whether a shed with posts and tin roof is a--buliding line of a road, encroachment on--calcutta municipal act (beng. iii of 1899), sections (3), (39)(a), 351, 449. - holmwood and n.r. chatterjee, jj.1. this convection is for re-erecting a building within the building line of a certain road. it appears that before the building line was laid down, the shed consisting of four posts and a tin roof stood in identically the same spot as it does now. after the building line was laid down, the owner had occasion to take the. roof off, and the municipal authorities happened to see this place when there was no roof on the shed. whether the owner repaired the same bits of tin, or whether he put in new bits of tin, or what he did in renewing or repairing his roof, there is nothing to show. but he eventually put up a roof either made of new tin or repaired, it does not matter which, in identically the same place as the old roof.2. now, this is certainly not a.....
Judgment:

Holmwood and N.R. Chatterjee, JJ.

1. This convection is for re-erecting a building within the building line of a certain road. It appears that before the building line was laid down, the shed consisting of four posts and a tin roof stood in identically the same spot as it does now. After the building line was laid down, the owner had occasion to take the. roof off, and the municipal authorities happened to see this place when there was no roof on the shed. Whether the owner repaired the same bits of tin, or whether he put in new bits of tin, or what he did in renewing or repairing his roof, there is nothing to show. But he eventually put up a roof either made of new tin or repaired, it does not matter which, in identically the same place as the old roof.

2. Now, this is certainly not a 're-erection.' It is admitted that Section 3(39)(a) is the only definition which can apply in this is reconstruction of the building if more than one-half of the B cubical contents has been taken down. Now, the removal of this roof for the purpose of repairing did not alter the cubical contents of this shed in the least, except a small area which the lean to roof may have contained. That certainly cannot have been anything, like one-half or even a quarter of the whole cubical contents. The expression 're-erected' does not apply.

3. Now comes the question whether Section 351 has been infringed. 'No portion of any building or wall abutting on a public street shall be constructed within the line.' We cannot find any definition of the word 'building,' and we are not at all clear that this roof with four posts is a 'building,' but from the use of the expression 'wall abutting on a public street,' we presume that the offence intended was one which is indicated in Section 8(3) of the Act where the ' building line' is defined as meaning 'a line (in rear of the street alignment) up to which the main wall of a building abutting on a street may lawfully extend.' It is therefore, clear that the offence of infringing on a building line is the erection or re-erection of the wall of a building within that line, and we do not think that the replacing of the roof upon the same posts can fall within the purview of the law. Admittedly it, is the front posts and not the roof which caused the trouble, and if the Municipality wish to remove the obstruction, they must obtain powers obviously to remove the posts, because the roof cannot be removed unless the posts are removed, and the posts appear to have been always in the same position as they are now. The Rule must, therefore, be made absolute, and the order of the lower Court discharged.


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