SHEIKH NIZAMUDDIN Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit brought by him against the Corporation of Calcutta for certain declarations and for a permanent injunction against the Corporation, The plaintiff's allegations were briefly these : He is the owner of certain premises at 24 Allenby Road, Bhowanipore. He applied to the Corporation authorities for permission to construct a garage in the aforesaid premises. The permission was at first refused. Thereupon he preferred an appeal to the Building Standing Committee, of the Corporation which according to him was authorised to consider such appeals. On 25 March 1935, the Committee passed a resolution allowing the appeal, the resolution being duly confirmed at the first meeting of the next Committee on 13 June 1935. Thereafter he completed the construction of the garage. On 3 September 1935, after the garage had been completed, he was served with a notice to show cause by 7 September 1935, why the garage should not be demolished. The notice intimated that, an appeal to the Building Standing Committee had been rejected on 28 June 1935. On these allegations he brought this suit praying : (a) that it be declared that the order of demolition was wrong and ultra vires; (b) that the resolution of the Building Standing Committee of 28 June 1935, if any, rejecting the appeal, which the Committee had previously allowed, be declared to be ultra vires and ineffectual; (c) that the garage be declared not liable to be demolished; and (d) that a permanent injunction be issued restraining the Corporation from demolishing the garage or causing it to be demolished. The Corporation in its defence stated inter alia that the suit was premature, inasmuch as no demolition order had yet been passed, and further that the power to pass such an order was vested not in the Corporation, but in the Municipal Magistrate.

(2.) On the other allegations the defence was briefly this : The plaintiff began construction of the garage before getting express permission under the rules and before the resolution of the Building Committee passed on 25 March 1935 had been, confirmed. The resolution was inoperative without confirmation, which in this case took place on 13 June 1935. Meanwhile, the plaintiff was served with a notice on 21 May 1935 to stop construction. As he disregarded the notice, a police guard had to be posted on the premises on 27 May 1935 to prevent him from going on with the work. The guard was withdrawn on 30 May 1935 on the plaintiff giving an undertaking by a letter addressed to the City Architect, dated 28 May 1935, not to go on with the construction until formal sanction had been obtained. Ultimately on 5 September 1935, on the application of the Corporation under Section 363, Calcutta Municipal Act, the Municipal Magistrate served a notice upon the plaintiff to show cause against demolition of the construction. Plaintiff was given due notice that the Building Committee would rehear his appeal on 28 June 1935 and he purposely absented himself from the hearing on that date. The construction in question contravened the provisions of the law and the plaintiff was therefore not entitled to any relief.

(3.) On these allegations and counter-allegations various issues were framed. The trial Court decreed the suit with costs. On appeal the Third Subordinate Judge of Alipur set aside the decree and dismissed the suit. Hence this second appeal by the plaintiff. Before going into the details of the case it. is necessary to set out the relevant provisions of the Calcutta Municipal Act, 1911. Section 319 of the Act, provides that No. piece of land shall be used as a site for the erection of a new building and no new building shall be erected otherwise than in accordance with (a) the provisions of Chap. XXI of the Act and of Schedule 17 and (b) any orders, rules or bye-laws made under the Act relating to the use of building sites or the erection of new buildings as the case may be.