ALOKE MOHAN SAHA Vs. NARAYANGANJ MUNICIPALITY

JUDGEMENT

(1.) The petitioner is the owner of a holding situate by the side of the "long tank" within the Municipality of Narayangunge. In April 1918 he applied for and obtained sanction for the construction of a two-storied building on his holding. After the first storey of the building had nearly reached completion, a notice was served upon him under Section 202 of the Bengal Municipal Act to remove an encroachment alleged to have been made on a portion of the "long tank." The petitioner thereupon filed objection under Section 176 of the Act, but it is alleged that the procedure prescribed by Sections 178 and 179 were not followed by the Municipal authorities. The Municipality, however, instituted proceedings against the petitioner under Sections 217 and 218. The latter, among other objections, denied the title of the Municipality to the land upon which the building had been created and denied that he had encroached upon any land of the Municipality. That case was dismissed mainly upon the ground of defeat in the notice served upon the petitioner. The Municipality, thereupon issued fresh notice upon the petitioner and, the latter having failed to comply with the requisition, started proceedings under Section 202 of the Act. The Sub Divisional Magistrate who tried the case found that there was an encroachment of one foot beyond the sanctioned plan upon Municipal land, and directed the removal of the encroachment under Section 202 of the Act. The petitioners thereupon moved this Court and obtained this Rule.

(2.) It is contended on behalf of the petitioner that the land on which the encroachment is said to have been made is not a drain, sewer or road, and that, therefore, the provisions of Section 202 are inapplicable to the case, even if the land belongs to the Municipality. It is contended, on the other hand, by the opposite party that the "long tank" is a sewer" and the land encroached upon is part of the sewer. It is not clear, however, whether the land in dispute forms part of the sewer or drain. It is referred to in one passage in the judgment of the Magistrate as Municipal land, but the opposite party relies upon other passages in the judgment as indicating that it forms part of the "long tank. "

(3.) Section 202 of the Bengal Municipal Act provides: "The Commissioners may issue a notice requiring any person to remove -any wall which be 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...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 encroachment and the expenses thereby incurred shall be paid by the person who erected the same." In order, therefore, that the provisions of the section may be applicable it is essential that the wall must have been built or the obstruction or encroachment erected in or on any road or open drain, server or aqueduct. Assuming that the land upon which the encroachment is alleged to have been made forms part of the "long tank," it must be shown that it is part of the sewer itself or forms part of its slope, which may be treated as part of the sewer itself.