1. This appeal, in which the Chairman of the Howrah Municipality is the appellant, arises out of certain proceedings which were taken against the plaintiffs, one of whom is now respondent (the other having since died) for the removal of certain alleged encroachments and obstructions from a Municipal road. The plaintiffs were owners of the premises known as 128 and 137, Khurut Road, Howrah, and upon a report submitted by the Municipal Surveyor that they had encroached on the road a notice was issued upon them under Section 204 of the Bengal Municipal Act to remove the said encroachments within eight days. Upon their failure to comply with the requisition the Municipality applied to the Magistrate for an order for removal of the obstructions. The Magistrate, after local inspection and after hearing the parties directed the plaintiff to remove a portion of the encroachments. That order also was not complied with, and the plaintiffs subsequently brought this suit for a declaration that the proceedings of the Municipality and the order of the Magistrate following thereon were illegal and ultra vires, and that the notices served upon them were not legal and valid notices.
2. Of the issues framed in the suit the following need only be referred to for the purposes of this appeal:
5. Are the notices served upon and the action taken thereupon by the defendant Corporation under Section 204, and other provisions of the Bengal Municipal Act, legal, valid and sufficient?
Were the notices duly signed, and the action taken under due and legal authority?
6. Were the proceedings taken by the defendant Corporation before the Deputy Magistrate of Howrah legally instituted?
7. Is the order passed by the said Deputy Magistrate on 9th May 1919 legal and valid?
8. Are the eaves in question in existence in the present condition for over 50 years? Were the projections erected before the passing of the District Improvement Act of 1864?
3. The trial Court found that the notices bore the signature of the Vice-Chairman and that it was clear from Exs. F and F (1) that be had authority to do so by virtue of delegation of these powers from the Chairman. He held further that after the objections of the plaintiffs had been heard, notice was by order of the Vice-Chairman issued under Section 179 of the Bengal Municipal Act, that thereafter on failure of the plaintiffs to comply with the requisition the Vice-Chairman gave orders to prosecute them, the fact that he had authority to do so being proved by Exs. E and F. On the issue as to plaintiffs' right to the land he held that they had failed to establish any such title, and that on the contrary the land belonged to the Municipality.
4. With regard to the question whether the projections had been in existence from before the passing of the District Improvement Act of 1864 he held that the plaintiffs had failed to prove this fact. Finally he held that the defendant Municipality had done nothing in violation of the provisions of the Municipal Act, and that the plaintiffs were entitled to no relief. He accordingly dismissed the suit. On appeal that decision was reversed by the Additional Subordinate Judge of Howrah and hence this second appeal. It may be stated at the outset that the finding of the trial Court that the land in question does not belong to the plaintiffs was not questioned in the Court of appeal below and this matter has not been referred to in the argument before us. The point about the notices being illegal and ultra vires was also not raised by the learned advocate for the respondent, and there is clearly no substance in it.
5. There remain, broadly speaking, two matters for consideration: first, whether the proceedings taken by the Municipality were legal and intra vires and, secondly, whether the alleged projections have been in existence from before the District Improvement Act, so as to render Section 204 of the Bengal Municipal Act inapplicable. On the first point the Subordinate Judge held that the action of the Municipality had been illegal and ultra vires and that the order of the Magistrate passed on the application of that body was also illegal and ultra vires. On the second point he held that the trial Court was not justified in rejecting the testimony of the plaintiffs' witnesses merely because they were unable to state when the projections were made, and accepting this evidence, which he considered raised a presumption that the projections were in existence before 1864, he held that the Municipality had no right to have them removed under Section 204 of the Municipal Act. He accordingly allowed the appeal with costs, set aside the decree of the trial Court and decreed the suit with costs declaring that the order of the Magistrate under Section 204 of the Bengal Municipal Act was ultra vires and illegal, and that the projections were not liable to be removed by a proceeding under that section.
6. The first point which was taken before us on behalf of the appellant was that, inasmuch as one of the plaintiffs, Hera Lal Bhutra died during the pendency of the appeal, and no heir or heirs were substituted within the period prescribed by law, the appeal became incompetent. I. do not think there is any substance in this contention and it was, I think, rightly overruled by the Court of appeal below. The appeal having been instituted on a ground common to both plaintiffs one of them is entitled to maintain the appeal. That being so the death of one of the plaintiffs cannot deprive the surviving plaintiff of his right of appeal.
7. The other grounds urged on behalf of the appellant may be summarized and considered under two heads. Firstly, have the proceedings taken by the defendant Municipality and the Magistrate's order following thereon been rightly held by the Court of appeal below to be illegal and ultra vires and, secondly, was the Subordinate Judge justified in holding that the projections were in existence from before the passing of the District Improvement Act?
8. With regard to the first point, it appears to me that the conclusions arrived at by the learned Subordinate Judge are based upon an erroneous view of the procedure under the Act and the section relating thereto, He appears to have held that the application to the Magistrate was illegal and ultra vires. He observes as follows:
The learned vakil for the plaintiff contended that the Municipal Commissioners are authorized to do certain acts under the statute and, therefore, any act done by them not authorized by the statute is illegal. The learned pleader pointed out that there was no order of the Chairman, or the Vice-Chairman, or the Commissioners at a meeting to file an application under Section 204 of the Act before the Magistrate for an order for the removal of the projections, and therefore, the Municipal Surveyor who filed that application, Ex. 2, had no authority to make that application.9. Later he goes on to observe:
As the Municipal Commissioners had not authorized their officer to file that application, Ex. 2, it was illegal, and the order of the Magistrate passed on that application cannot be sustained. The jurisdiction of the Magistrate for passing an order under Section 204 of the Municipal Act arises on the application of the Commissioners and not otherwise. As there was no application by the Commissioners and as the Surveyor had not been authorized to make the said application the order of the Magistrate passed on that application under Section 204 is ultra vires.10. Before proceeding further it is necessary to refer briefly to some of the provisions of the Act relating to the exercise of powers under the Act, and the delegation of those powers. Section 44 lays down that
11. The Chairman shall for the transaction of business connected with this Act, or for the purpose of making any order authorized thereby, exercise all the powers vested by this Act in the Commissioners. Provided (inter alia)...that the Chairman shall not exercise any power which is directed to be exercised by the Commissioners at a meeting.
12. A distinction is thus drawn between acts done by 'by the Commissioners' and acts done by 'the Commissioners at a meeting.'
13. Section 45 which follows makes provision for delegation of powers and states that
14. The Chairman may, by a written order, delegate to the Vice-Chairman all or any of the duties or powers of a Chairman as defined in this Act'....
15. Section 201 says that:
The Commissioners may give notice in writing to the owner or occupier of any house requiring him to remove...any projection' etc.16. It is important to note that the words used are 'Commissioners' and not 'Commissioners at a meeting.' If, therefore, delegation of powers by the Chairman to the Vice-Chairman is proved, and if there is an order by the Vice-Chairman to make the application to the Magistrate, the procedure will be in accordance with the statute and there will be no question of illegality or ultra vires.
17. What are the actual facts? The surveyor submitted his report about the encroachments, and the Vice-Chairman directed thereon the issue of a notice under Section 204 (vide Ex. G). Subsequently the same officer reported that nothing had been done and a notice under Section 179 of the Act, was ordered to issue (this seems to have been a mistake, but is not material). Thereafter orders for prosecution were solicited, and the Vice-Chairman on the 6th November 1918, passed an order to prosecute (vide Ex. G. (2). Application was then made to the Magistrate and, by his order of the 9th May 1919, the Deputy Magistrate of Howrah held that the case had been proved and ordered the parties to remove a portion only of the projections. I am unable, to find any illegality or defect in these proceedings. The delegation by the Chairman of his powers under the Act to the Vice-Chairman has been proved by Exs. F and E (1), and included among them are the Chairman's power 'In regard to suits and prosecutions.'
18. The learned Subordinate Judge appears to have been of opinion that an application under Section 204 does not come within the term 'prosecution' but this seems to be an unduly narrow view, and I, think the word must be taken as being used in a general sense and as covering all matters incidental, to, or connected with, prosecutions. It is manifestly absurd to suppose that such applications which are frequent in a large Municipality and indeed matters, of almost daily routine, should be dealt with only by Commissioners in a meeting. When the delegation order speaks of powers in regard to suits and prosecutions it clearly means, I think, not only the actual institution of suits and prosecutions but matters relating thereto. The vice-Chairman was authorized to deal with these matters and he did so. I think therefore, that the trial Court was right in holding that there had been no, violation of the provisions of the Act, and that being so the finding of the Court of appeal below that the Magistrate's order based upon the application is also bad and ultra vires cannot be supported.
19. It remains to deal with the second point, viz., the question whether the projections existed before the passing of the District Municipal Improvement Act. We are here confronted with the finding of the Subordinate Judge, which is a finding of fact and cannot be questioned in second appeal unless it can be shown that it has been vitiated by some error of law or procedure. On behalf of the appellant it has been urged that that finding is based upon no evidence, and that it is vitiated by the presumption which the Subordinate Judge has drawn that the state of things proved by the plaintiffs witnesses, so far as their memory went, must have existed prior to 1864, when, the District Improvement Act came into force. I do not think the finding can be said to be based upon no evidence as there are the statements of the witnesses referred to in the judgment of the lower appellate Court, and they are certainly evidence upon the point for what they may be worth. When the learned Subordinate Judge says it should be presumed that the projections had been in existence from before the District Improvement Act (presumed is perhaps an unfortunate word) it is clear that what he meant was that he drew the inference of fact that they were in existence before the passing of the Act. That is an inference which he was entitled to draw and it follows that the finding of fact cannot be assailed in second appeal. The appeal must, therefore, fail upon this ground, and it must be held that the Municipality was not entitled to have the projections removed under Section 204 of the Act, the only course left open to them being to proceed under Section 233 of the Act.
20. In the result the appeal fails and must be dismissed with costs, but the decree of the Court of appeal below is modified to this extent that so much of it as declares the order of the Magistrate to be illegal and ultra vires is hereby set aside, though on the finding arrived at above that order cannot be given effect to.
21. I agree.