Limitation under municipal removal proceedings depends on when illegality arises: completion of work or expiry of notice.

Section 364(2) of the Calcutta Municipal Act, 1923 applies the limitation rule in Section 363(2) mutatis mutandis, so the court must preserve the statutory policy while making only necessary adjustments. On that approach, limitation in proceedings concerning illegal works begins from completion of the work where the work is unlawful from inception, but from expiry of the notice period where legality depends on non-compliance with notice. The commentary also notes that a prior proceeding concerning the same encroachments can bar renewed proceedings in respect of the identical structures, supporting refusal of further interference.

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Issues: (i) Whether, for proceedings under Section 364(1) read with Section 364(2) of the Calcutta Municipal Act, 1923, the period of limitation always begins from the expiry of the notice period or, in cases of works illegal from the inception, from the date of completion of the work; (ii) Whether the earlier decision against proceedings in respect of the same encroachments barred the present proceedings.

Issue (i): Whether, for proceedings under Section 364(1) read with Section 364(2) of the Calcutta Municipal Act, 1923, the period of limitation always begins from the expiry of the notice period or, in cases of works illegal from the inception, from the date of completion of the work.

Analysis: Section 364(2) makes the limitation rule in Section 363(2) applicable mutatis mutandis, so only such changes may be made as are necessary to fit the different classes of cases under Section 364(1). The majority held that the section contemplates both categories of cases: some where the offending work is illegal from the outset, and others where legality ends only upon non-compliance with a notice. In the former category, limitation runs from completion of the work; in the latter, it runs from expiry of the notice period. The view that limitation uniformly begins only from expiry of the notice was therefore rejected.

Conclusion: The answer is no. Limitation does not begin from the expiry of the notice in all cases; where the work is illegal from the beginning, it begins from completion of the work, while in other cases it begins from expiry of the notice period.

Issue (ii): Whether the earlier decision against proceedings in respect of the same encroachments barred the present proceedings.

Analysis: The earlier proceeding concerned the same encroachments on the Corporation Road. The judges treating the point held that the prior failure to obtain relief barred a fresh attempt in respect of the identical structures, at least so far as that part of the case was concerned. This was treated as an additional ground supporting the refusal to interfere with the magistrate's order in respect of those encroachments.

Conclusion: The earlier decision barred renewed proceedings in respect of the same encroachments.

Final Conclusion: The Corporation's challenge failed, and the magistrate's order was left undisturbed in substance, with the proceedings rejected for being time-barred in the relevant parts and the remaining discretionary relief not interfered with.

Ratio Decidendi: When a limitation provision is applied mutatis mutandis to a different class of proceedings, the court must preserve the legislative policy while making only the minimum necessary changes; limitation runs from the point at which the relevant illegality arises, which may be at completion of the work or upon expiry of a notice, depending on the nature of the case.

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