JOSEPH Vs. CALCUTTA CORPORATION

JUDGEMENT

(1.) IN this case the appellants are the owners of a bazaar in Kidderpur, which abuts upon two public streets known as Garden Reach Road and Diamond Harbour Road respectively. Along the frontages of these streets there are a number of verandahs or shops connected with the main buildings and erected upon culverts or platforms placed over drains which run by the side of the roads. The streets and drains are vested in the respondents as the Corporation of Calcutta, and they on July 13, 1905, and April 21, 1908, served notices (under Section 341 of the Calcutta Municipal Act of 1899) upon the appellants, requiring the removal of these fixtures in Diamond Harbour Road and Garden Reach Road respectively. Section 341 of the Act, so far as it affects service of the notices, is not material, but it contains, in Sub-section 3, certain provisions material to this dispute, which are in these terms : " If the owner or occupier of the building proves that any such fixture was erected before the first day of June, one thousand eight hundred and sixty-three, or that it was erected on or after that day with the consent of any municipal authority duly empowered in that behalf, the corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the fixture."

(2.) THE appellants paid no attention to the notices, and the respondents accordingly made application to the magistrate for demolition of the structures as to Diamond Harbour Road on November 22, 1905, and as to Garden Reach Road on November 5, 1908. Orders were made on both these summonses--on the first on December 22, 1906, and on the second on May 27, 1909. A rule nisi was obtained by the appellants to discharge the order relating to Garden Reach Road, but this rule was set aside on July 22, 1909.

(3.) THE corporation specifically denied the allegation that the structures in Garden Reach Road had been erected before June 1, 1863; but as to Diamond Harbour Road they gave a more qualified denial, and admitted that part of them had been erected before that date. They disputed that the payment of compensation was a condition precedent to the removal of the fixtures, and they alleged that under Section 617 of the Calcutta Municipal Act the claim with regard to Diamond Harbour Road was bad in law, and that the suit could not be entertained by the Court.