CORPORATION OF CALCUTTA Vs. BIJOY KUMAR

JUDGEMENT

(1.) The plaintiffs-respondents are the owners of premises No. 12-1, KPuddopookur Lane, and Nos. 34-1 and 37-3, Watgunge Street, which are bustee lands in occupation of their tenants. The lands are situated within the jurisdiction of the Municipal Corporation of Calcutta and are subject to the operation of Chapter XXVI of the Calcutta Municipal Act, 1899 (Act ill of 1899 B.C.). The defendant Corporation called upon the plaintiffs to carry out improvements in the busteea, and upon their failure to comply with the requisition, instituted successive criminal prosecutions to compel execution of the works. The result has been that the plaintiffs have been convicted on no less than eight occasions and sentenced to pay fines of various amounts under Section 575 read with Section 408 of the Calcutta Municipal Act. The plaintiffs have thereupon instituted the present suit for an injunction against the Corporation. The plaintiffs pray that the Corporation be restrained by an injunction (a) from taking any action or proceeding for non-compliance with the requisition for carrying out improvements in their premises, and (b) from instituting or continuing any proceeding or putting the law in motion for enforcing the requisition. The claim for an injunction was based on the assertion that the Corporation had not only initiated proceedings without strict compliance with the provisions of the law in that behalf and without proper service of notice upon the parties interested, but had instituted prosecutions against them in perverse exercise of alleged powers not authorised by law. The Corporation repudiated these allegations and maintained that they had acted in strict compliance with statutory provisions. The Subordinate Judge came to the conclusion that the Corporation had not acted without jurisdiction, but granted an injunction, first, because the plaintiffs were nod in a position to carry out all the improvements by reason of the obstructive attitude of some of their tenants on the premises, and secondly because the Corporation had taken action under Section 409 with a view to carry out the improvements themselves. The present appeal has been brought by the Corporation to test the propriety of this order.

(2.) Section 406 of the Calcutta Municipal Act authorises the General Committee to arrange for inspection, report and preparation of standard plan by a medical officer and an engineer, in oases where the improvement of a bustee is a matter of emergency. Section 407 requires the General Committee to approve such standard plan after hearing objections of the owner and after making such modification as they may deem proper. Section 408 next provides that the General Committee may cause a written notice to be served upon the owners of the land, requiring them to carry out all or any of the improvements or any portion thereof. Section 409 empowers the General Committee to carry out such improvements in default of the owners and to realise the expenses from them. Section 574 makes non-compliance with requisitions under Section 408 punishable with a fine, and Section 575 makes the continuing offence punishable with a daily fine after a first conviction.

(3.) In the present case, it was contended that the notices contemplated by Secs.407 and 408 had not been duly served, and that the proceedings were consequently without jurisdiction, as indicated in Kanailal V/s. Corporation of Calcutta (1907) 11 C.W.N. 508. The Subordinate Judge has held on the evidence that the requirements of Secs.406, 407 and 408 were fulfilled and the requisite notices were served in the manner prescribed by Section 593. He has further pointed out that receipt of the notices under Secs.407 and 408 is admitted by one of the plaintiffs. The conclusions of the Subordinate Judge are amply supported by the evidence on the record. In these circumstances, the view cannot be maintained that the General Committee acted illegally and without jurisdiction, when they called upon the plaintiffs to make the improvements under Section 408.