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Purna Chandra Dutt Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal440,122Ind.Cas.549
AppellantPurna Chandra Dutt
RespondentCorporation of Calcutta
Cases ReferredMohummad Raziuddin v. Corporation of Calcutta
Excerpt:
- .....had been in existence for some 40 years.2. the language of section 299, sub-section (1) of the present calcutta municipal act of 1923 is as follows:when any verandah, platform or other similar structure or any fixture attached to a building so as to form part of the building whether erected before or after the commencement of this act causes a projection, encroachment or obstruction over or on any public street or any land vested in the corporation, they may by written notice require the owner or the occupier of the building to remove or alter such structure or fixture.3. section 364 of the same act provides for the demolition of such structure by an order of the magistrate. the applicant before us relies upon the case of mohummad raziuddin v. corporation of calcutta [1919] 23 c.w.n......
Judgment:

Pearson, J.

1. This is a rule which was issued upon the Municipal Magistrate and the Chief Executive Officer of the Corporation of Calcutta calling upon them to show cause why a certain order of demolition should not be set aside on the ground that the elements necessary to constitute an offence punishable under Section 364, Sub-section (1), Calcutta Municipal Act of 1923, had not been shown to exist. The petitioner is the owner of certain premises No. 49, Doctor Lane, Calcutta. He was served with a notice under Section 299, Calcutta Municipal Act, alleging that he had unlawfully encroached over the extreme end of a blind passage by the side of his house by erecting an one storied entrance with masonry walls and pucca roof and a ledge and calling upon him to remove the same. On his failure to do so, he was prosecuted before the Municipal Magistrate and order was passed directing that the structure complained of should be demolished. The finding of the Magistrate is that the passage belongs to the Corporation and that there has been an encroachment ; and there is no denial of this fact. The defence gave evidence to the effect that this covered entrance had been in existence for some 40 years.

2. The language of Section 299, Sub-section (1) of the present Calcutta Municipal Act of 1923 is as follows:

When any verandah, platform or other similar structure or any fixture attached to a building so as to form part of the building whether erected before or after the commencement of this Act causes a projection, encroachment or obstruction over or on any public street or any land vested in the Corporation, they may by written notice require the owner or the occupier of the building to remove or alter such structure or fixture.

3. Section 364 of the same Act provides for the demolition of such structure by an order of the Magistrate. The applicant before us relies upon the case of Mohummad Raziuddin v. Corporation of Calcutta [1919] 23 C.W.N. 752. It was a case decided under the corresponding provisions of the former Calcutta Municipal Act of 1899. The corresponding section of that Act, namely, Section 341, Sub-section (1) provided as follows:

When any fixture has, whether before or after the commencement of this Act, been attached to a building so as to form part of the building and the same causes a projection, encroachment or obstruction over or on any public street or any land vested in the Corporation, the General Committee may by written notice require the owner or occupier of the building to remove or alter such fixture.

4. The decision of this Court in the case cited was based on the wording of the old section, it is said in the course of the judgment:

As we understand them, the word 'fixture which has been attached to a building cannot be applied to a part of the building which was constructed at the same time as the main building itself. The word 'when a fixture has been attached' seem to us to mean that the building must first be in existence and the attachment of the fixture subsequent to the erection of the building.

5. Consequently, in that view, as it had not been proved that the platform in question was constructed after the building was erected, the Court in that case held that the Municipal Magistrate had no power to order for the demolition complained of. On the analogy of that case, it is argued before us that there is no evidence in the present case to show when the structure complained of was erected whether before or after the building to which it was attached, and, therefore, it is said that the same order should be made holding that the Magistrate had no power to pass such an order. The answer to that argument I think is this : As a matter of interpretations the section as it now stands must be construed according to the ordinary plain meaning of the language used. The decision in the case cited obviously depended upon the construction which the Court sought ought to be put upon the language employed in the section of the old Act, particularly the words 'when any fixture has been attached.' If we looked at the present corresponding Section 299, those words are not be be found. The words now are:

when any verandah, platform, or other similar structure or any fixture attached to a building so as to form part of the building and so on.

6. These words taken in their ordinary meaning are sufficient to cover the present case and it matters not that evidence is not forthcoming to show whether the structure complained of came into existence after the building to which it was attached or before. It is a question of plain meaning of the words of the section as they stand, and, in my opinion, no analogy can be evoked from the language of the previous Act nor can it be said that the present Act must be constructed to mean the same thing as to the previous Act though a different language has been employed. For these reasons, in my opinion, the rule should be discharged.

Mallik, J.

7. I agree.


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