RAJENDRA KUMAR ROY Vs. BAL GOVINDA TEWARI

JUDGEMENT

(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 complaint under Section 202, Bengal Municipal Act, 3 (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, 1863, 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 data 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 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. 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matter came, came to the conclusion that Section 202, Bengal Municipal Act, so far as Howrah was concerned, had been repealed when in 1904 the Local Government by a notification in the Calcutta Gazetta extended Section 342 of the then Calcutta Municipal Act 3 (B. C.) of 1899 to Howrah. The Magistrate had his attention drawn to the fact that Section 342 of the then Calcutta 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 342, Calcutta Municipal Act 3 (B. C.) of 1899 was not incorporated in the pre-sent Calcutta Municipal Act and Section 300 of the present Calcutta Municipal Act was not extended to Howrah, Section 202, Bengal Municipal. Act, which according to the Magistrate, had been repealed by the extension of Section 342, Calcutta Municipal Act 3 (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 a reference to this Court for the determination of the questions (1) whether Section 202, Bengal Municipal Act, so far as Howrah is concerned has bean repealed; and (2) what is the present state of the law having regard to the fact that Section 342, Calcutta Municipal Act 3 (B.C.) of 1899, 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 Magistrate 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 encroachment; and the expenses thereby incurred shall be paid by the person who erected the same.