COMMISSIONERS OF RISHRA MUNICIPALITY Vs. ANIL KUMAR MUSTAFI

JUDGEMENT

(1.) THE commissioners of Rishra Municipality instituted the present suit. The allegation is that with a view to erecting a construction on the Holding No. 92/2, N. K. Banerjee Street, the defendant had submitted a plan, which had been duly sanctioned. On 5. 9. 1966, the employee of the Municipality found on inspection that there had been a deviation from such sanctioned plan. The suit is for mandatory injunction to pull down such unauthorised construction and for a declaration that the construction in question was an illegal one.

(2.) THE defendant filed a written statement alleging inter alia that he erected the construction with the permission of the Chairman of the Municipality.

(3.) THE learned Munsif accepted the plaintiff's version and decreed the suit. The defendant filed an appeal. The learned District Judge referred to the provisions of the section 4 of the specific Relief Act and stated that according to that section, specific relief could be granted only for the purpose of enforcing an individual civil right and not for the mere purpose of enforcing a penal law. He stated that the Commissioner's remedy was to file an application before the Magistrate according to the provisions of the section 330 of the Bengal Municipal Act and the Civil Court had no jurisdiction to try the suit. Hence this appeal by the plaintiff.