1. Reference No. 90. This is a reference by the District Magistrate of Howrah under the following circumstances : It appears that there is a person named Bal Govinda Tewary who has erected a tin shed in Pandit Ghat Road within the Municipality of Howrah and has thereby been guilty of an encroachment on the public road. The Municipality through their Sub-overseer R. K. Roy lodged a compliant under Section 202, Bengal Municipal Act, III (B. C.) of 1884, which runs as follows:
The Commissioners may issue a notice requiring any person to remove any wall which he may have built, or any fence, rail, post or other obstruction or encroachment, which he may have erected in or on any road or open drain, sewer or aqueduct, after the date on which, the District Municipal Improvement Act, 1864, or the District Towns Act, 1868, or the Bengal Municipal Act, 1876, as the case may be took effect in the Municipality : or, in case none of the said Acts was in force in the Municipality before the commencement of this Act, then after the date on which this Act may have been extended thereto : and if such person shall fail to comply with such requisition within eight days of the same, the Magistrate may on the application of the Commissioners, order that such obstruction or encroachment be removed : and thereupon the Commissioners may remove any such obstruction or encroachment : and the expenses there by incurred shall be paid by the person who erected the same.
No person shall be entitled to compensation in respect of the removal of any wall, fence, rail, post or other obstruction under this section.
2. The Magistrate before whom the matter came, came to the conclusion that Section 202, Bengal Municipal Act, so far as Howrah was concerned, had been repealed when in 1904 the Local Government by a notification in the Calcutta Gazette extended Section 342 of the then Calcutta Municipal Act III (B. O.) of 1899 to Howarh. The Magistrate had his attention drawn to the fact that Section 342 of the then Caclutta Municipal Act was no longer existent---the present Calcutta Municipal Act, not containing that section. The question then arose as to whether having regard to the fact that Section 432, Calcutta Municipal Act III (B. C.) of 1899 was not incorporated id the present Calcutta Municipal Act and Section 300 of the present Calcutta Municipal Act was not extended to Howrab, Section 202, Bengal Municipal Act, which according to the Magistrate, had been repealed by the extension of Section 342, Calcutta Municipal Act III (B. C.) of 1899 was revived. The Magistrate came to the conclusion that Section 202, Bengal Municipal Act, had not been revived. The matter attracted the notice of the District Magistrate and he has made & reference to this Court for the determination of the questions: (1) whether Section 202, Bengal Municipal Act, so far as Howrah is concerned has been repealed : and (2) what is the present state of the law having regard to the fact that Section 342, Calcutta Municipal Act III (B. 0.) of 1894, is non-existent so far as Howrah is concerned.
3. It will be seen from the language of Section 202, Bengal Municipal Act, that the Legislature gave power to the Commissioners of a Municipality to
issue a notice requiring any person to remove any wall which he may have built, or any fence, rail, post or other obstruction or encroachment, which he may have erected in or on any road or open drain, sewer' etc . . . . 'and if such person shall fail to comply with such requisition within eight days of the receipt of the same, the Magistrate may, on the application of the Commissioners, order that such obstruction or encroachment be removed : and thereupon the Commissioners may remove, any such obstruction or enrcoachment : and the expenses thereby incurred shall be paid by the persons who erected the same.
4. Section 242, Calcutta Municipal Act, III (B. C.) of 1899, gave power to the Chairman of the Calcutta Corporation and, after the extension of the said section to Howrah, to the Commissioners of the Municipality of Howrah or the Executive of the Howrah Municipality to
remove any wall, fence rail, post, platform or other obstruction, projection or encroachment (not being a fixture referred to in Section 341) which has been erected or set up and any materials 6r goods which have bean deposited in a public street or in or over any drain or aqueduct in a public street, whether the offender be prosecuted or not.
5. The section goes on to say:
When the Chairman removes any wall or other obstruction, projection or encroachment from land which forms part of a public street, no compensation shall be payable, but the General Committee shall be bound to provide proper means of access to and from the street if none exist already.
6. It will, be seen from a comparison of the two sections, namely Section 202, Bengal Municipal Act, and Section 342, Calcutta Municipal Act, III (B. C.) of 1899 that what was done at the time when the latter section was extended to Howrah was to clothe the Municipality of Howrah with the summary or dictatorial powers which the Legislature thought fit to confer upon the Chairman of the Corporation of Calcutta in addition to the powers which the Municipality already had under Section 202, Bengal Municipal Act. Doubtless, there were reasons which were sufficient to satisfy the Local Government that such additional powers, having regard to the state of things within the Municipality of Howrah, were necessary from the point of view of the conservancy in Howrah and for other considerations. But, because in addition to the powers conferred by Section 202, Bengal Municipal Act, additional summary powers having the same objective without recourse to a Magistrate were conferred upon the Municipality, it does not follow that Section 202, Bengal Municipal Act was repealed. It is said that the Howrah Municipal Manual issued by the Howrah Municipality suggests that Section 202 ceased to have any operation from and after 1904 when Section 342, Calcutta Muni cipal Act, 1899, was extended to Howrah We have looked into the Municipal Manual and beyond the suggestion made by somebody who was charged with the duty of compiling the Manual that one section corresponded with the other there is nothing whatever in the said book to suggest that Section 202 was repealed in 1904 and ceased to have any operation from and after that date.
7. It is said that Section 342, Calcutta Municipal Act, 1899, shows that when one of the provisions of the when Calcutta Municipal Act was extented to another Municipality the corresponding section in the Bengal Municipal Act must be taken to have been repealed and that its operation must have ceased. It all depends upon what you mean by the words 'corresponding section.' In our view, Section 342, of the then Calcutta Municipal Act, does not correspond to Section 202, Bengal Municipal Act. For the reasons which have already been advanced, one Section prescribed the normal machinery and the other section gives the Executive of the Municipality summary powers which ordinarily would not be availed of if the normal machinery were found to be sufficient but which would only be availed of in cases where recourse to the normal procedure would involve delay or where obstruction might be anticipated from the party alleged to be guilty of encroachment. One section does not cores pond to the other and there is no foundation for the suggestion that in 1904, Section 202 was repealed and consequently there is no foundation for the suggestion that by reason of the non existence of Section 342, Calcutta Municipal Act, 899, so far as Howrah, is concerned at the present moment Section 202 must be considered to have been revived. It is not a case of revival at all, there having been no case of repeal in the first instance.
8. For these reasons, we accept the reference made by the learned District Magistrate of Howrah and direct that the order of the trying Magistrate be set aside and the proceedings do continue against the person who was summoned as having been guilty of the encroachment referred to above.
Revision Case No. 583.
9. For the reasons given in our judgment in Reference No. 90 of 1931, we are of opinion that a sufficient case has been made out for our interference and we make this rule absolute.