1. This appeal has been preferred by the appellants, Harbans Singh Saluja, against the judgment of a learned single Judge of this Court whereby the learned Judge discharged the Rule Nisi issued on the application of the appellant under Article 226 of the Constitution.
2. The appellant moved this Court under Article 226 of the Constitution challenging the validity of the order of Deputy Commissioner of the Corporation of Calcutta ordering the demolition of a shed in occupation of the appellant and also the order of the President of the Building Tribunal affirming the said order of demolition of the Deputy Commissioner.
3. The appellant claims to be a tenant of a premises consisting of a garage in the ground floor, a mezzanine floor room above the said garage and an asbestos shed in the ground floor situated in the south eastern portion of the premises No. 207A, Park Street, Calcutta, under the Respondent 5, Sm. Urmila Debi. It appears that on the complaint of the respondent 5, the Corporation of Calcutta served an order on the appellant dt. Dec. 18, 1976 under Section 414(3) of the Calcutta Municipal Act, 1951 whereby the Deputy Commissioner directed the appellant to demolish the disputed shed appertaining to the said tenancy of the appellant. Being aggrieved by the said order of the Deputy Commissioner, the appellant preferred an appeal to the Building Tribunal.
4. It was inter aha contended on behalf of the appellant before the Building Tribunal that the disputed shed had been in existence for more than 12 years before the impugned notice was served on the appellant. Two Assessors came to the concurrent finding that the disputed shed had been in existence for a period of 12 years before the impugned notice was served. It has been observed by the Assessors as follows:
'Considering all these facts and circumstances of the case as discussed above, we find that the Deputy Commissioner was wrong in passing the impugned order of demolition and, we, under Sub-rule (4) of Rule 15 of the Calcutta Corporation Tribunal (Conductof Business) Rules, 1965 held that the impugned order of demolition of the asbestos cement corrugated sheet roofed shed should be set aside being protected under Sub-section (4) of Section 414 of the Calcutta Municipal Act, 1951.'
It may be stated here that one of the evidence that was considered by the Assessors was the evidence of one Birendra Krishna Bose, an adjoining owner who, according to the Assessors, was a reliable and disinterested witness. The President of the Tribunal however, disagreed with the finding of the Assessors that the disputed shed had been constructed 12 years before the impugned notice under Section 414 of the Act and affirmed the order of demolition.
5. Being aggrieved by the said order of thePresident of the Tribunal, the appellant filedthe writ petition in this Court and as statedalready, the learned Judge dismissed the writpetition and discharged the Rule Nisi. Hencethis appeal.
6. Sub-rule (4) and Sub-rule (5) of R, 15 of the Calcutta Corporation Tribunal (Conduct of Business) Rules, 1965, hereinafter referred to as the Rules, provide as follows :
'(4) The decision on any question of fact shall be in accordance with the opinion of the President unless both the Assessors agree in holding an opinion different from that of the President in which case the decision shall be in accordance with the agreed opinion of the Assessors.
(5) The decision on any question which, according to the President, is a mixed question of law and fact shall be in accordance with the opinion of the President but the opinion of each of the Assessors shall also be indicated in the judgment.'
7. It is clear from Sub-rule (4) that the concurrent opinion of the Assessors on a question of fact will prevail over that of the President of the Tribunal. In the instant case, the question whether the disputed shed had been in existence for 12 years or more is preeminently a question of fact and, both the Assessors having been of the opinion that it had been in existence for over 12 years, such opinion will prevail over that of the President.
8. Mrs. Sengupta, learned Advocate appearing on behalf of the respondent 5, the landlady, has urged that the question is amixed question of flaw and fact inasmuch as a presumption of fact has been drawn by the Assessors against the Corporation for the non-production of a register. We are afraid, a presumption of fact under Section 114(g) is also a question of fact and not a question of law. It may be that the Assessors committed an error in coming to the said finding, but we are afraid, such finding, however erroneous it may be, cannot be interfered with by the President of the Tribunal.
9. For the reasons aforesaid, the appeal is allowed and the judgment of the learned trial Judge is set aside. The Rule Nisi is made absolute. The impugned order of the Deputy Commissioner of the Corporation passed under Section 414(3) and the order of the Tribunal affirming the said order of the Deputy Commissioner are both quashed.
10. Let a Writ in the nature of Certiorari issue accordingly.
11. There will, however, be no order for costs in this appeal.