HARI CHARAN BOSE, AGENT AND MANAGER, EASTERN MORTGAGE AGENCY CO LD AND ON HIS DEATH HIS SON NARESH CHANDRA BOSE Vs. SURENDRA NATH BANERJEE, CHAIRMAN OF THE NORTH BARRACKPUR MUNICIPALITY

JUDGEMENT

(1.) WE are of opinion that this appeal fails upon both the grounds which have been taken against the finding of the learned Subordinate Judge in the Court below. As regards the question of limitation, there cannot be the slightest doubt that the alleged damage having been caused by order of the Magistrate purporting to be under Section 144, Criminal Procedure Code, falls within Article 2, 2nd Schedule of the Limitation Act, and as the case was brought five months after the damage and not within 90 days as laid down in that Article, the suit is clearly barred; and as regards the want of jurisdiction in the Municipality under Section 243 to forbid any person to erect, huts that question does not arise. WE may remark in passing that Section 243 only enables the Municipality to correct the alignment of huts, see that they are put up in a safe and sanitary way, and there appears to have been no provision by which they can take any action themselves to remove such huts unless the owners have not given notice to the Municipality a month beforehand, or have erected in contravention of the Municipal direction. But in this case, we have no allegation in the Civil Court either that they did not give notice or that the hut was required to be altered and the owner neglected to do so; and had the Municipality, having got notice and not having issued any orders to alter the hut, ordered its demolition, their action certainly would have been wrongful. But they did nothing of the kind. They went to the Magistrate and they asked him to direct the removal of the hut under Section 144, Criminal Procedure Code. The Magistrate was at first under the impression that the petition was based upon defective notice and he, therefore, properly said: "I cannot act on an allegation of this sort." He then had a full inquiry made. He went to the spot himself and he decided the matter for himself under Section 144 that this hut was dangerous and insanitary inasmuch as it interfered with the pilgrims and sightseers who flock there for the purpose of bathing during the fair. His order was an order for which the Municipality is in no way, responsible; even had it been a wrong order no damages could have been got against them. But the order which has been read to us is a good and perfectly proper order, and, therefore, the plaintiff had no case whatever either against the Municipality or against the Magistrate.

(2.) THAT being so, the appeal fails and must be dismissed with costs.