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Tarak Chandra Das Vs. Chief Executive Officer, Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal285
AppellantTarak Chandra Das
RespondentChief Executive Officer, Corporation of Calcutta
Excerpt:
- .....illegal and not binding on the plaintiff and for a permanent injunction restraining the calcutta municipal corporation from executing this order of the municipal magistrate. the suit has been dismissed by both the. courts below on the ground that the civil court had no jurisdiction to interfere in revision with such an order of the municipal magistrate and also that the magistrate's order was a legal one and should not be interfered with on the merits. the plaintiff applied for sanction to build a privy on the ground floor and he also wanted to build a second storey on the first floor. eventually he was allowed to build a privy on the ground floor on condition that he did not apply for building one on the first floor. however, having built a privy on the ground floor, he also built a.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for declaration that an order for demolition of the plaintiff's second storey, erected over a privy connected with his premises at 31/1 Girish Mukerji Road, is illegal and not binding on the plaintiff and for a permanent injunction restraining the Calcutta Municipal Corporation from executing this order of the Municipal Magistrate. The suit has been dismissed by both the. Courts below on the ground that the Civil Court had no jurisdiction to interfere in revision with such an order of the Municipal Magistrate and also that the Magistrate's order was a legal one and should not be interfered with on the merits. The plaintiff applied for sanction to build a privy on the ground floor and he also wanted to build a second storey on the first floor. Eventually he was allowed to build a privy on the ground floor on condition that he did not apply for building one on the first floor. However, having built a privy on the ground floor, he also built a privy on the first floor, although he had not obtained the sanction for this additional building. In consequence, on an application made by the Corporation to the Municipal Magistrate, he ordered the demolition of the building on the first floor and hence this suit to set aside this order.

2. Under the provisions of Section 363, Calcutta Municipal Act, if the Corporation are satisfied that the erection of any new building has been commenced without obtaining the written permission of the Corporation, they may apply to a Magistrate and such Magistrate may make an order directing that such erection or so much thereof as has been executed unlawfully be demolished. In this case, the building on the first floor having been erected without the written permission of the Corporation it was unlawful in the terms of the Section and the Municipality was therefore right in making the order for demolishing this structure. It is contended for the appellant that the Municipal Magistrate ought to have investigated whether this structure was against the rules or whether the Corporation were-entitled to refuse sanction for the erection, of this building and that if he found that the Corporation had no right to refuse sanction no order for demolition should have been passed. There seems to be no authority for this view. The Section does not give the Magistrate any power to enquire as to whether the sanction was rightly withheld or not. If the sanction was withheld, for whatever reasons, the Magistrate apparently was entitled to order the demolition of the building. That being the case, there has been in this case no error of law and this Court is not entitled to interfere with the order in second appeal. The appeal must accordingly be dismissed with costs.


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