CHAIRMAN, HOWRAH MUNICIPALITY Vs. RAMSARUP SEROUGEE

JUDGEMENT

(1.) This appeal, in which the Chairman of the Howrah Municipality is the appellant, arises out of certain proceedings which were taken against the plaintiffs, one of whom is now respondent (the other having since died) for the removal of certain alleged encroachments and obstructions from a Municipal road. The plaintiffs were owners of the premises known as 128 and 137, Khurut Road, Howrah, and upon a report submitted by the Municipal Surveyor that they had encroached on the road a notice was issued upon them under Section 204 of the Bengal Municipal Act to remove the said encroachments within eight days. Upon their failure to comply with the requisition the Municipality applied to the Magistrate for an order for removal of the obstructions. The Magistrate, after local inspection and after hearing the parties directed the plaintiff to remove a portion of the encroachments. That order also was not complied with, and the plaintiffs subsequently brought this suit for a declaration that the proceedings of the Municipality and the order of the Magistrate following thereon were illegal and ultra vires, and that the notices served upon them were not legal and valid notices.

(2.) Of the issues framed in the suit the following need only be referred to for the purposes of this appeal: 5. Are the notices served upon and the action taken thereupon by the defendant Corporation under Section 204, and other provisions of the Bengal Municipal Act, legal, valid and sufficient? Were the notices duly signed, and the action taken under due and legal authority? 6. Were the proceedings taken by the defendant Corporation before the Deputy Magistrate of Howrah legally instituted? 7. Is the order passed by the said Deputy Magistrate on 9 May 1919 legal and valid? 8. Are the eaves in question in existence in the present condition for over 50 years? Were the projections erected before the passing of the District Improvement Act of 1864?

(3.) The trial Court found that the notices bore the signature of the Vice-Chairman and that it was clear from Exs. F and F (1) that be had authority to do so by virtue of delegation of these powers from the Chairman. He held further that after the objections of the plaintiffs had been heard, notice was by order of the Vice-Chairman issued under Section 179 of the Bengal Municipal Act, that thereafter on failure of the plaintiffs to comply with the requisition the Vice- Chairman gave orders to prosecute them, the fact that he had authority to do so being proved by Exs. E and F. On the issue as to plaintiffs right to the land he held that they had failed to establish any such title, and that on the contrary the land belonged to the Municipality.