TaxTMI 
TaxTMI 
1957 (3) TMI 84
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....s Lane and on another by a road which has been called the Corporation Road. Both of them are public roads. 3. It appears that on the 17th of January, 1947, the Corporation detected certain unauthorised projections on the northern side of the building and instituted proceedings under Section 363 (1) of the Calcutta Municipal Act, 1923. Those proceedings came to an end on the 12th of July, 1949, when the learned Magistrate held that the projections complained of did riot violate any of the Building Rules and, therefore, in respect of them, no order for demolition would be made. The projections then complained of were a room and a front veranda in the fourth storey made of masonry work and a projected veranda on the second, third and fourth storeys on the north over a common passage. 4. On the 17th of September, 1951, two officers of the Corporation again inspected the premises and thought that there were certain unauthorised encroachments built without sanction. The encroachments concerned were, (1) projecting verandas at first, second, third and fourth floor levels over Phears Lane; (2) a cornice at roof level; (3) projecting verandas at the first, second and third flood level....
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....at those constructions would be allowed to stand on payment of encroachment fees and wet-work charges to be assessed by the Corporation within the 31st of March, 1954. If the fees and charges, so directed to be paid, were not paid by the date mentioned, the Corporation would be at liberty to demolish the encroachments by the 31st of July, 1954, at the cost of the opposite party. 7. Against that order . of the learned Magistrate, the Corporation of Calcutta, moved this Court in its revisional jurisdiction and obtained a Rule. The Rule came to be heard before Mitter and Guha Ray, JJ. The first ground taken on behalf of the Corporation was that the previous failure to obtain a demolition order in respect of the projections on the Corporation Road in a proceeding instituted under Section 363 (1) of the Act could be no bar to the present proceedings under 364 (1), although the projections concerned might be identical. It was next contended that in holding that the projecting verandas, encroaching upon Phears Lane, being more than five years old, proceedings with respect to those encroachments were not maintainable, the learned Magistrate had been in error. Objection was also taken to....
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....ed Judges of the Division Bench found themselves unable to agree with that view. They thought that there could be no broad rule that in the case of every type of proceeding contemplated respectively in the several clauses of Section 364(1), the starting point of limitation for proceedings under that section would be the date of the expiry of the notice. According to them all the constructions contemplated by the several clauses of Section 364 (1) were not of the same type, but they were of two different types. Some of them were illegal from the very beginning and in the case of such constructions, the Division Bench thought that the starting point of limitation should be the date of the constructions. There were certain other constructions contemplated by some of the clauses of Section 364 (1) which were not constructions illegal at the beginning, but which would become illegal upon non-compliance with a notice, requiring the owner either to remove them or take some order with them. Indeed, by some of the clauses of Section 364 (1), constructions of both types were contemplated. As the learned Judges of the Division Bench thought that the starting point of limitation would be diffe....
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....s the correct view. When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. IF a construction coming within any of the clauses of Section 364 (1) is illegal from the beginning, Section 363 (2) may be applied, as it is, to proceedings for its demolition without any difficulty and no change in the terms of the section is called for or would be warranted. It might seem at first sight that Section 363 is concerned only with unauthorised constructions and Section 364 with constructions which are not unauthorised, but in respect of which the Corporation may require some order to be taken. The very exhaustive analysis which my learned brothers Das Gupta and Guha Ray have made of the various clauses of Section 364 (1) and the constructions contemplated thereby, has convinced me that there is no broad division of constructions between Section 363 and Section 364, confining the former to unauthorised constructions and the latter to constructions which are not unauthorised. It ....
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....ce the reasons for the view taken by Das Gupta, J., and Guha Ray, J., have been given by them in their respective Judgments, which I respectfully accept, it is not necessary for me to give any further reasons on my own account. I agree with my learned brothers that the answers to the questions, as re-framed by us, should be as follows: Question 1 - Part (1): No. Part (2): Not in all cases. Question 2 - Not in so far as if was held that the starting point of limitation for proceedings under Section 364 (1) of the Calcutta Municipal Act, 1923, would in all cases be the date of the expiry of the period mentioned in the notice not complied with. 11. To the above answers we would add a corollary to the following effect:-- The starting point of limitation under Section 363 (2), f in its application mutatis mutandis to proceedings instituted under Section 364 (1), would be (i) where the work is illegal from the beginning under the Municipal Act in force at the time, the date of the completion of the work and not the date of the expiry of the period mentioned in the notice under Section 299 (1); (ii) where the work ....
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....de an order on the 4th of March, 1952, drat if encroachment fees and wet-work charges at double the usual rate were paid, the case would be dropped. The learned Magistrate has made in substance the same order and no ground was made out before us which could persuade us to reverse it. 15. For the reasons given above, I agree that the answers to the question referred to the Full Bench, as re-framed, should be as proposed by my learned brothers, Das Gupta and Guha Ray, the terms of which I have already set out. 16. As regards the whole case, for the reasons I have also given, the Rule must be discharged. K.C. Das Gupta, J. 17. On the 2nd September, 1953, the Corporation of Calcutta made an application before, the Municipal Magistrate, Calcutta, under Section 364 (1) of the Calcutta Municipal Act, 1923, in respect of (1) projecting verandas at 1st, 2nd, 3rd and 4th floor levels over Phears Lane; (2) projecting Verandas at 1st, 2nd and 3rd floor level over the Corporation Road; (3) cornice at roof level over the Corporation Road; and (4) a sloped roof at roof level projecting over the Corporation Road. It was alleged that a notice had been served on the owner of the building....
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....on moved the Court under Section 439 of the Code of Criminal Procedure, praying that the Magistrate's order be set aside, and an order of demolition of all the projections be made. A rule was issued by this" Court calling upon the Municipal Magistrate and the opposite parties, of whom opposite party No. 1 is the owner of the premises and the rest are occupiers, to show cause why the Magistrate's order should not be set aside, and demolition ordered. 21. At the hearing of this rule, the learned Advocate of the Corporation contended, on the authority of 35 Cal WN 397: (AIR 1931 Gal 433) (A), and Criminal Revn. No. 879 of 1954 (Cal) (B), that the starting point of limitation for the proceeding was the date of expiry 'of the notice under Section 299 (1), and not the date of construction, and so, the Magistrate was wrong in holding that the proceeding was barred by limitation, in respect of the projecting verandas over the Phears Lane. 22. Guha Ray and Matter, JJ., were of opinion that the view taken in Jatindra Nath Barat v. Corporation of Calcutta (A) and Jagneswar Roy v. Corporation of Calcutta (B), that in all cases under Section 364 (1), the starting point of limi....
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....ad of making the change, itself, the Legislature left the task to the Courts. It has authorised the Courts to make necessary changes in the provisions of Section 363 (2) before applying them to the proceedings under Section 364 (1). The question Is. What changes are reasonably necessary? 27. Before we can answer this question, we have to examine the cases that arise under the different clauses of Section 364 (1), in order to discover what practical difficulties arise, if the provision of Section 363 (2) that no proceedings shall be instituted in respect of work done more than five years before the institution, which for the sake of convenience, I shall refer to 'as the five years since construction' rule is applied without modification. 28. Clause (1) deals with verandas, platforms, or similar structure or a fixture, which causes a protection, encroachment, or obstruction over, or on any public street, or any land vested in the Corporation. Section 299 (1) of the Act authorises the Corporation to require the owner or occupier of the building to which such offending structure or fixture is attached, to remove or alter the same. If the owner or occupier has not compl....
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....same causes a projection, encroachment or obstruction over or on any public street or any land vested in the Corporation, the General Committee may, by written notice, require the owner or occupier of the building to remove or alter such fixture. (2) If the expense of removing or altering any such fixture is paid by the occupier of the buildings, in any case in which the fixture was not erected by himself, he shall be entitled to deduct the expense of removal or alteration from the rent payable by him to the owner of the building. (3) 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." 30. Under the law in force between 1899 and the commencement of the Act of 1923, therefore, the Corporation or rather the General Committee of the Corporation had the same powers as now to require the owner or occupier of a buildin....
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.... especially when considering a question affecting limitation. It therefore appears to me that when the 1923 Act came into force, it was not likely that very many structures coming within the mischief, of Section 299, and really requiring action thereunder, had been in existence, except for a very short period, say two or three years, without action having taken under Section 341 (1), and under Section 450 of the 1899 Act. There could be very few such structures in existence for five years or more, without necessary action for their removal having been taken under the .1899 Act. I have therefore come to the conclusion that the inability of the Corporation to institute proceedings under Section 364 (1), in respect of structures constructed five years or more before the commencement of the 1923 Act, if the 'five years since construction' rule of limitation were applied would cause very little difficulty in practice. 34. There might be some cases in which the provisions of Section 299 (1) are attracted after the construction of verandahs, platforms or similar structures attached to a building, because of the fact that a street over which the structure causes projection, or o....
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....n to remove such building or addition on the strength of the agreement, fails so to remove." 37. In many cases, five years or more will elapse before the Corporation has reason to call upon the owner to remove such a building or addition. In such cases, the "five years Since construction" rule of limitation will cause real difficulty, because however vigilant the Corporation may be, proceedings for removal of such building will be barred. 38. The third clause - deals with cases where after an addition has been made to a building, 'within a street alignment' in pursuance of an agreement, as provided in Section 363 (1) proviso, the Corporation requires the owner to remove it, and the owner fails to do so. Clearly, if the Corporation has waited five years, before requiring the owner to remove the added building, the 'five years since construction' rule will have the consequence that no proceeding can be instituted under Section 364 (1). In those cases, where the Corporation, requires the removal, before the expiry of five years, there will be no such difficulty. 39. The fourth clause covers the case of buildings erected or added, within the street alignment of....
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....Rule 2, Sub-rule (5) of Schedule XVI, requiring the owner or occupier of a building to comply with any condition on which the erection of a projection was permitted, but the Condition is not complied with. Sub-rule (3) of the said rule provides that no person shall put up any verandah, balcony, sun shade, weather frame, or the like, to project over a street, without the written permission of the Corporation. Sub-rule (4) provides that subject to Sub-rule (1) and Sub-rule (2) of the rule the Corporation may give written permission on such conditions as they think fit and on payment of prescribed fees, to owners, or occupiers of buildings to put up verandahs, balconies, sun shades, weather frames, and the like over such street. Sub-rule (5) provides that if any of the conditions on which permission was given, is broken, the Corporation may require the owner or occupier to comply with such condition. It seems to me that ordinarily, the condition will be that something be done, before or at the time the construction permitted is made. In such cases, if the condition is broken, that should come to the knowledge of the Corporation authorities within a short time after the construction, a....
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....ible for the Corporation to institute proceedings within five years from the date of the construction of the offending work. Where the offending roof or wall was constructed, less than five years before the commencement of the Act, it should be possible, in most cases, if the Corporation authorities are vigilant, to take action under Sub-rule (2) with such expedition that institution of proceedings for removal will be possible, within five years from construction. 45. Clause (10) deals with some cases of buildings which endanger health. Rule 6 (1) of Schedule XVIII is in these words - "Whenever the Corporation consider -- (a) that any building is by reason of its having no plinth or having a plinth of insufficient height, or by reason of the want of proper drainage or ventilation, or by reason of the impracticability of cleansing attended with risk to the health of the occupiers thereof or to the inhabitants of the neighbourhood, or is for any reason likely to endanger the public health, or (b) that any block of buildings is, for any of the said reasons, or by reason of the manner in which the buildings are crowded together, attended with such risk as ....
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....at any structure coming within the mischief of Rule 6, Sub-rule (1) of Schedule XVIII, that was constructed before the commencement of the 1923 Act, was equally within the mischief of Section 446 (1) of the 1899 Act. If the General Committee of the Corporation, were reasonably vigilant, as it is proper to think they were, they must have instituted proceedings before the Magistrate under Section 450, in respect of all such structures where action was really necessary, except those which were constructed only a short time, say, two or three years before the commencement of the 1923 Act. Among the structures, which come within the mischief of Rule 6, Sub-rule (1) of Schedule XVIII, of the 1923 Act, there were likely therefore to be very few, which had been constructed five years or more before the commencement of the 1923 Act, but in respect of which action. under Section 440 and where necessary, under Section 450 (6) of the 1899 Act had not been taken. 49. In respect of cases under Clause (10) of Section 364 (1) of the 1923 Act, the application of the 'five years since construction' rule would not therefore cause any real difficulty, in actual practice. 50. The above ex....
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....of provisions of the Act, or rules or bye-laws of the same, or in other words, were unauthorised or illegal constructions, while the latter are all in respect of constructions which at the time it was made did not contravene the provisions of the Act, or rules, or bye-laws thereunder, or in other words were "not unauthorised" constructions. It was this distinction it is argued, which made the Legislature decide that the rule of limitation for proceedings under Section 363 (1) would not apply unchanged to proceedings under Section 364 (1), but with necessary modifications. It is reasonable, the argument proceeds, therefore to say that as the starting point of limitation for proceedings under Section 363 (1) is the date of construction, which is identical with the date of illegality of the construction, the starting point of limitation for proceedings under Section 364 (1) should be the expiry of the period of the notice mentioned in the different clauses of Section 364 (1), that being the date when the illegality commences. The view that all proceedings under Section 364 (1) are in respect of structures which were "not unauthorised" at the time they were made, and the view that the ....
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....e same in the cases under Clause (9). This deals with roofs or walls made of grass, leaves, canvas and other inflammable material that exist at the commencement of the 1923 Act in buildings situated within thirty feet of other buildings. Whether the construction-of these was illegal at the time it was made depends therefore on the state of the law prior to the commencement of the 1923 Act. I find that while the previous Calcutta Municipal Acts -- viz., those of 1863, 1876 and 1888 prohibited the making of external roofs or walls of grass, leaves or other inflammable material, (by Ss. 142, 211, 224, respectively) the 1899--Act contains no such prohibition -- neither in the body of the Act, nor in the rules thereunder. As it appeared surprising that such prohibition, which we find again, in the 1923 Act, should be absent in 1899 Act, I examined the bye-laws made under the 1899 Act to find out whether they contained any such prohibition. But I have not discovered any, As it is wholly unlikely that any external roof or wall made of grass, leaves, or mat and other inflammable material of like nature, that was constructed prior to the commencement of the 1899 Act would last till 1923, we....
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....on who Suffers damage by the removal or alteration thereof." 58. The first sub-section of Section 299 (1) itself makes it clear that action thereunder may be taken in respect of offending structures -- using that word to include fixtures and other structures -- whether these were constructed before or after the commencement of the 1923 Act. The provisions of the third sub-section of the section show that the Legislature contemplated the possibility of action being taken, in respect of structures constructed, even before the 1st June, 1863, and provided that where the offending structure was shown to have been constructed prior to 1st June of 1863, compensation was payable for damage caused by the removal or alteration, whether or not the construction was lawful or otherwise; but if the structure was constructed on or after the 1st June 1863, compensation is payable only if it was made ''with the consent of any municipal authority duly empowered in that behalf". It seems clear that if the construction was with such permission, it was not illegal at the time it was made. 59. It will be convenient to consider first the tease of structures, constructed before the commence....
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....er; and further provides that if such construction be lawfully made, the Commissioners shall make reasonable compensation. Section 35 provides that the Commissioners may give permission for the construction of Verandas, balconies, sun shades and the like to project over the street' upto a certain distance. 62. The 1863 Act has also three sections dealing with this matter -- Section 139 empowers the Justices of the Peace constituting the Corporation to remove or alter 'projections, encroachments, or obstructions' erected in front of or against any building, after the passing of the Act; Section 140 empowers the Justices to remove or alter similar structures erected before the Act came into force, and provides that if such construction has been lawfully made, compensation will be payable for damage caused by such removal or alteration; Section 141 empowers the Justices to give permission for the construction of verandas, balconies, etc., projecting over a street. 63. In the 1876 Act, Section 208 empowers the Commissioners to remove or alter similar structures, erected subsequent to the 1st of June 1863; Section 209 empowers the Commissioners to remove or alter such ....
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....s if made without permission was illegal in most, if not in all cases. 68. The position appears to be the same with regard to similar structures constructed after the commencement of 1923 Act. Sub-rules (1), (2), (3) and (4) of Rule 2 of Schedule XVI of this Act are substantially the same as Sub-sections (1), (2), (3) and (4) of Section 340 of the 1899 Act, that have been set out above. It is clear therefore that many -at least of the structures, which, on being constructed after the commencement of the 1923 Act come within the operation of Section 299 (1), must be held to have been constructed illegally. 69. It seems to me that most of the structures that would attract the operation of Section 299 (1) are likely to be verandas and the like, projecting over public streets, and even if it be that some of the structures coming within the mischief of Section 299 (1) may fall outside the class of structures, the construction of which was illegal under the law in force' at the time of construction the reasonable conclusion is that in the majority of cases coming under Section 299 (1), the construction was illegal at the time it was made. 70. I think it proper to mention tha....
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....ss than six feet from certain specified buildings; (3) every service privy and service urinal shall be detached from the inhabited portion of any building. 75. Rule 22 (1) provides, that no service privy or service urinal shall be placed on any upper floor of a building. This is subject to a proviso, 'which however does not affect our present problem. It is the 'placing' of the privy or urinal in contravention of the prescribed rules that are specified, which attracts the operation of Section 364 (1). Tin's 'placing' is by the nature of the thing simultaneous with the construction of the privy or urinal. Thus, the construction is illegal at the time it is made. 76. It may be mentioned here that Sub-rule (3) of Rule 21 provides that no service privy or service urinal shall be constructed in any premises occupied by a masonry building, or without the special sanction of the Corporation, in any other premises which are situated in answered street, and has an adequate filtered supply. Whether the construction of a privy in contravention of Rule 21, Sub-rule (3) will attract the operation of Section 364 (1), Clause (6), it is not necessary to decide for our....
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.... may be one foot above such level. Rule 77 of the same schedule prescribes the height of the plinth for huts. Similar provisions though not exactly the same were contained in the 1899 Act; in Rule 8 of Schedule XVII in respect of masonry buildings and in Rule 46 in respect oGBP huts. In the Calcutta Municipal Act, 1888, Section 243 requires that the plinth of buildings shall be at least two feet above the centre of the nearest street, while Section 247 contains similar provisions for huts. The previous Acts -- viz., the Calcutta Municipal Act of 1876, and the Calcutta Municipal Act of 1863 do not appear to contain any provisions as regards the height of the plinth; but Section 269 of the former Act, and Section 161 of the latter Act require that the levels at which the lowest floor of a house shall be built must be in accordance with the decision of the Commissioners and of the Justices respectively. A building without any plinth that attracts the operation of Rule 6 (1), Ch. XVII of the 1923 Act, must have been constructed in contravention of the provisions of the Municipal Act, if constructed when the 1888 Act or the 1899 Act was in force, or after the 1923 Act commenced. As it i....
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....cases under Clauses (9) and (10), this reasoning and this conclusion cannot therefore be accepted, 84. I have no doubt however that the solution of our problem as to what modifications the Court can properly make in the provisions of Section 363 (2), for applying them to Section 364 (1) proceedings must be sought in the direction which Jatindra's case (A) indicates. 85. In prescribing the period of limitation for proceedings under Section 364 (1), the Legislature, it is clear, thought if proper that the starting point of limitation should be the commencement of the illegality of the structure. It was because the learned Judges were of opinion, in Jatindra's case (A), that in proceedings under Section 364 (1), the illegality commenced in all cases, on the expiry of the notice mentioned therein, that they decided that the modification should be such as to make this expiry the starting point of limitation in such proceedings. 86. The examination of the various cases arising under the ten different clauses has established the mistake of that opinion; but the position still remains that (1) in many cases, the illegality commenced at the very time of construction, (2) in....
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.... prescribed in a rule of limitation is available to a litigant, after the cause of action has arisen. But it is futile to seek logic in rules of limitation, and there is nothing to prevent the Legislature from prescribing a point of time before which proceedings must be commenced, without making the full period mentioned in the rule available for instituting proceedings. An instance of this can be seen in Clause (5) of Section 363 (1). That clause deals with cases where alterations as required by a notice under Rule 22 of Schedule XVI have not been duly made. This rule provides that if an inspection discloses that a building has been erected, not in accordance with the sanctioned plan, or in contravention of the Act, or rule, or bye-laws thereunder, the Corporation may require the owner of the building to make the necessary alterations, after giving him an opportunity to show cause why such a direction should not be given. Proceedings under Section 363 (1) can be instituted by the Corporation only, after the period mentioned in the final order, as the time within which the alterations are to be made, has expired. The effect of the provision in Sub-section (2) of Section 363 is that....
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....ll still remain open to the Corporation, to institute proceedings under Section 364 (1), in respect of the same structure, by merely delaying the issue of the notice to remove or alter it. Such a. strange result should be avoided, wherever possible. 91. For all these reasons, I have come to the conclusion that in applying the provisions of Section 363 (1), to proceedings under Section 364 (1), the proper modification the Court should make, is by inserting after the words "the work is done", the words "illegally, or continued illegally". 92. I would therefore give the following answers to the questions : Q. l-Part (1): No. Q. 1-Part (2) : Not in all cases. Q. 2: Not in so far as it was held there that the starting point of limitation for proceedings under Section 364 (1) of the Calcutta Municipal Act, 1923 would in all cases be the date of the expiry of the period mentioned in the notice not complied with, 93. As in Q. 1, special mention has been made of the Clause (1) of Section 364 (1), I would add the following: The starting point of limitation under Section 863 (2) in its application mutatis mutandis to proceedings instituted under Se....
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....g. Along the north of the building is a passage which it has been found in this case to be a passage of the Calcutta Corporation. Both the passage and the lane are public streets within the meaning of the Act. In September 1951 an officer of the Corporation found that the building had certain verandahs and cornices projecting on the lane and the passage. It appeared to the Corporation that these projections had never been authorised by it and it thereupon on September 22, 1951 gave a notice to the owner of the building under Section 299 (1) of the Act to remove the offending verandahs and cornice within a certain time. The owner did not comply with this notice nor did he appear before the Corporation when asked to do so in that connection. The Corporation then passed an order on March 4, 1952 that nothing would be done in the matter if the owner paid encroachment fees and certain other charges at double the usual rates within a month failing which the Municipal Magistrate was to be moved for the appropriate orders. 100. The owner did not pay the fees and charges. The Corporation thereupon on September 2, 1953 made an application to the aforesaid Magistrate under Section 364 (1J ....
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....ct-matter of the previous case, being raised in this case. For this part of their judgment the learned Judges relied on Sambasivan v. Public Prosecutor, Federation of Malaya, 54 Cal WN 695 (PC) (C). 102. On the question of the bar of limitation the learned Judges were pressed on the authority of the case of AIR 1931 Cal 433, to hold that the proceedings before the Magistrate were within time. That was also a case under Section 364 (1) in respect of a platform forming part of building which obstructed a Corporation passage and the Corporation asked for an order for its demolition. 103. It was admitted that the platform had been in existence for more than five years before the proceedings in the Magistrate's Court had commenced. It was argued on behalf of the owner that the proceeding, was barred by limitation as under Section 364 (2) it had to be commenced within five years of the construction of the offending structure and it had not been so commenced. There also a notice under Section 299 had been served and it was contended on behalf of the Corporation that under Section 364 (2) the period of limitation started to run from the expiry of the period mentioned in the notic....
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.... opportunity of being heard, apply to a Magistrate, and such Magistrate may make an order directing that such erection, alteration, addition or other work, as the case may be, or so much thereof as has been executed unlawfully as mentioned in Clauses (1), (2) or (3), or that any structure, specified under the Explanation to Clause (d) of Rule 53, or the Explanation to Clause (iv) of Rule 81 of Schedule XVII as a structure to be demolished or altered, shall (i) be demolished by the owner thereof or altered by him in accordance with the order of the Magistrate to the satisfaction of the Corporation, as the case may require, or (ii) be demolished or altered by the Corporation at the expense of the said owner: Provided that the Magistrate (a) shall not make any order under this section without giving the owner and occupier, of the building to be so demolished or altered full opportunity of adducing evidence and of being heard in his defence, and (b) may make any such order notwithstanding the fact that a valuation of such building has been made by the Executive Officer under Chapter X for the assessment of the consolidated rate : Pr....
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....n external roof or wall made of inflammable material, the same be not duly removed or altered, or 10. if any owners or occupiers neglect to execute any works or to take any measures required by any notice affixed under Rule 6, Sub-rule (1) of Schedule XVIII, the Corporation may apply to a Magistrate, and such Magistrate may make an order directing that the projection, building, block of buildings, verandah, platform, fixture, additions, roof, wall, privy or urinal, as the case may be, shall (a) be demolished by the owner thereof or altered by him. to the satisfaction of the Corporation, or (b) be demolished or altered by the Corporation at the expense of such owner : Provided that before making such application, the Corporation shall give the owner or occupier an opportunity of being heard on his behalf : Provided also that the Magistrate (i) shall not make any order under this section without giving the owner and occupier of the structure to be so demolished or altered full opportunity of adducing evidence and of being heard in his defence, and (ii) may make any such order notwithstanding the fact that a valua....
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....364 (1). Clause (1), a part of Clause (2) and Clause (6) appear to contemplate constructions which are illegal from the very beginning either because they are completely unauthorised or because they are in contravention of specific rules. The other clauses appear to contemplate cases which are not initially illegal but only turn out to be so on the happening of certain contingencies. Guha Ray J. then concluded : Clearly then Section 364 (1) broadly contemplates two types of cases, in one of which the constructions are illegal from the very beginning and in the other they are not illegal from the beginning but become illegal on the expiry of the period of the notices issued by the Corporation. If Section 363 be compared to Section 364 it will at once appear that the first contemplates only one type of cases where the constructions are illegal from the very beginning because they are completely unauthorised. That explains to our mind the use in Section 364 (2) of the expression 'mutatis mutandis'. Where the constructions are illegal from the very beginning the starting point of limitation should, in our opinion, be the date of construction and not the date of expiry of ....
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....that section by virtue of Section 364 (2) is not therefore brought about by the use of the expression "mutatis mutandis" in the latter section. When a section in a Statute says that the provisions of another section applicable to specified proceedings, shall apply to other proceedings, it does not and cannot include in the provisions so made applicable, those parts of them which are referable to the proceedings contemplated by the Section so applied. The omission hence, of the words "Notwithstanding anything contained in Sub-section (1) no proceeding shall be instituted there under" from Section 363 (2) when its provisions are applied to a proceeding under Section 364 (1) by virtue of Section 364 (2) is not the change brought about by the use of the words 'mutatis mutandis'. 110. What then is the change contemplated? There has to be a change and such change must be necessary. In order to find out what is the necessary change, one has inevitably to ask why is a change necessary? The answer to this question must be that the proceedings contemplated by Section 364 (1) are in respect of matters different from those in respect of which proceedings are contemplated by 6. 363 (....
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....one class of such proceedings a provision for serving a notice requiring something to be done has been made. 113. Coming now to Section 364 (1) I find that it contemplates cases in each of which a notice by the. Corporation requiring the owner to do something has been issued and not been complied with within the period limited by the notice. In all the clauses of Section 364 (1) such non-compliance with the notice has been expressly mentioned except Clause (6). In my view for reasons which I shall state later, Clause (6) also contemplates such non-compliance but I will now deal with all other clauses except Clause (6). The provisions of these clauses show that the right to institute proceedings under Section 364 (1) arises on the non-compliance with the notices therein mentioned. As the right to institute a proceeding under Section 364 (1) arises on the non-compliance with the notice, it necessarily follows that the period within which the proceeding should be instituted cannot commence from a time before the right arises. It must, in my view, commence at the earliest when the right arises, that is, when the non-compliance takes place. It is irrelevant therefore to enquire when ....
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....and shows cause the Corporation may cancel the notice or modify it. Therefore the non-compliance with the provisions of the notice requiring alterations to be made does not create a new right in the Corporation to institute proceedings before a Magistrate. The requisition to make the alterations may itself be cancelled or modified and hence the non-compliance with the notice does not itself result in an illegality being perpetrated and that being so no right to institute a proceeding for the non-compliance can be said to arise. As has been seen, that notice can be given only when work is being or has been carried on otherwise than in accordance with the permission of the Corporation or in contravention of the Act or the rules or by-laws made thereunder. When such is the case a right to institute a proceeding before a Magistrate in respect of the work arises under Section 363 (1), Clause (1), Sub-clauses (b) and (c). The work being against the provisions of the Act is ex hypothesi unlawful. The right to institute the proceeding therefore arises under Section 363 (1), Clause (1) Sub-clause (b) and (c) and not because of any non-compliance with the notice mentioned in Section 363 (1),....
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....provides that if upon the inspection the Corporation find the privy or urinal has been constructed in contravention of any of the provisions of Schedule XV, they may by written notice, require the owner to take such order with them as the Corporation may think fit to direct. I think that the provisions of Section 278 about the service of a notice are obligatory : See Julins v. Bishop of Oxford (1880) 5 AC 214 (D). It would therefore be seen that even Clause (6) of Section 364 (1) contemplates the expiry of a notice before a proceeding under it can be started before a Magistrate. 116. I would therefore answer the questions before us as follows : Q. 1. The starting point of the period of limitation for proceedings to be instituted under Section 364 (1) Clauses (1) to (5) and (7) to (10) is the expiry of the period of notice mentioned in these clauses and for proceedings under Clause (6) the expiry of the notice mentioned in Section 278 of the Act. Q. 2. The cases of AIR 1931 Cal 433 and Criminal Revn. No. 879 of 1951 decided on 9th February, 1955 (Cal) (B) (unreported) were rightly decided. 117. We have however to decide the whole case. I agree that the decisi....
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....laces." Section 295 vests these rights in the Corporation and Section 296 imposes on it the obligation of maintaining and repairing them and entitles it for those purposes to do everything necessary for the public safety and convenience. Section 298 lays down that streets and public places shall be maintained, repaired, protected and otherwise regulated in accordance with the rules contained in Schedule XVI. Rule 2 of Schedule XVI deals with the regulation of verandahs projecting over streets. Sub-rule (1) of this rule prohibits the erection of a verandah supported by pillars resting on a street either specified by the Corporation or the width of which is less than 50' and the footpath of which is 'not' less than 8' in width, the word 'not' before "less" being very probably a misprint. Sub-rule (2) prohibits the placing of a roof on any verandah supported on pillars resting on a street and the placing of a roof more than 3' wide on any verandah projecting over a street and not so supported. Sub-rule (3) prohibits the erection of a verandah to project over a public street without the written permission of the Corporation. Sub-rule (4) entitles the Corpora....
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....141 Section 35 Section 299 Section 341 Sections 222 & 221 Sections 209 & 208 Sections 140 & 139 Sections 34 & 33 124. The Corporation of Calcutta came to be set up for the first time by Act 4 of 1876. Prior " thereto its functions used to be discharged by the Municipal Commissioners under Act 14 of 1856 and by a Corporation named the Justices of the Peace for the Town of Calcutta, under Act 6 of 1863. The first vests public streets in the Municipal Commissioners and the second in the Justices of the Peace for the Town of Calcutta. The other four Acts vest them in the Corporation of Calcutta. Under all these Acts the duty of maintaining the public streets is laid on the authority in which they vest. Section 35 of Act 14 of 1856, Section 141 of Act 6 of 1863, Section 211 of Act 4 of 1876, Section 223 of Act 2 of 1888, Section 340 of Act 3 of 1899 and Rule 2 of Schedule XVI of Act 3 of 1923 empower the authority in question to permit the erection of verandahs so as to project over public streets in certain circumstances which however, are not always the same in all the Acts. Section 34 of the Act of 1856 provides for the removal of existing projections by the C....
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....rst, does not require that they should have been lawfully made compensation 'being made payable when they had been put up whether lawfully or unlawfully, before that date while in the case of the second, it requires that they should have been made with the consent of any municipal authority duly empowered in that behalf, the use of the expression "any municipal authority duly empowered in that behalf" being easily accounted for by Section 5, though the expression covers the Municipal Commissioners of the Act of 1856, the Justices of the Peace for the Town of Calcutta of the Act of 1863 and the Corporation of Calcutta of the Act of 1876. 126. Section 341 (1) of the Act of 1899 entitles the General Committee to require the owner or occupier of a building by a written notice to remove any fixture attached to it so as to form part of it, whether before or after the commencement of the Act, when such fixture causes a projection, encroachment or obstruction over or on a public street. Sub-section (2) provides for the cost of removal, if paid by the occupier though he was not responsible for its erection, being deducted from his rent. Sub-section (3) provides for reasonable compens....
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.... for proceedings before Magistrates under Sections 363 and 364, there being no such provision in Sections 449 and 450 or elsewhere in the Act of 1899. There is yet a third point of difference between the provisions in the Act of 1923 and those in Chapter XXX of the Act of 1899. Section 452 of the Act' of 1899 lays down that when any person is liable to be directed to demolish work and to pay a fine under the Act, both these directions may be given at the discretion of the Magistrate. In Chapter XXXVII of the Act of 1923 Section 536 which corresponds to Section 452 of the Act of 1899 is as follows : "When under this Act or under any rule or bye-law made thereunder any person is liable, in respect of any unlawful work, (a) to pay a fine and (b) to be required to demolish the work, a Magistrate may in his discretion and subject to the pro- visions of Sections 363, 364 and 493, direct the said person to pay the fine and also to demolish the work." In Section 308 (1) and in Section 364 (1), there is a second proviso in exactly the same terms. This prohibits proceedings under Section 363 or Section 364 where the Corporation have instituted proceedings under Section 463. T....
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.... the different Acts governing the municipal administration of Calcutta since 1856. Section 139 of Act XIV of 1856 made it three months from the commission of the offence, but Section 235 of Act 6 of 1863 reduced it to two months from that date. Section 351 of Act 4 of 1876 retains the same provision but adds a proviso to the effect that the failure to take out any licence under the Act will be deemed to be a continuing offence until the expiry of the period for which the licence is required to be taken out. Section 419 of Act II of 1888 increases the period to three month but retains the proviso introduced in Section 351 of its immediate predecessor. Section 631 of Act III of 1899 makes the period of limitation three months for prosecution for all offences under the Act, rule, bye-law or regulation made under the Ad| except offences under Section 156 in which case the period is 6 months. The proviso is still there. Section 534 of the Act of 1923 retains the same provision in a somewhat modified form. It is, therefore, clear that from the very beginning there were provisions for prosecution for offences under the Act and there has always been a provision prescribing the period of li....
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....e, tends to put owners and occupiers into difficulties, particularly when the building in question had changed hands. What the Legislature may in the circumstances be reasonably supposed to have sought to ensure in 1923 by prescribing a period of limitation for proceedings under Sections 363 and 364 was that constant vigilance on the part of the Corporation without which it is impossible for them to find out the offending structures and to take steps for their demolition or alteration and if in the Act of 1951, it vested in Commissioner of the Corporation the powers of ordering demolition or alteration which the Acts of 1899 and of 1923 had vested in Magistrates, it did riot do away with the provision for limitation altogether but raised it from five to twelve years so as to give the Corporation a much longer period in which to detect and to take action as to offending structures. 132. It seems to me reasonably clear from the above analysis that when the Act of 1923 re-shaped the provisions of the Act of 1899 relating to the demolition or alteration of offending structures, the problem it set out to solve was how best to reconcile the interests of the owners and occupiers of bui....
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....ection of new buildings is illegal. The second clause of Section 363 (1) deals with the alteration of or for addition to, any building or any other work done or made for any purpose, to or on a building, when it has been commenced, is being carried on or has been completed in breach of or otherwise than in accordance with any sanction granted under Sections 330, 340 or 341. Section 330 makes the rules applicable to new buildings also applicable, subject to certain modifications, to alterations and additions and Rule 92 of Schedule XVII mentions the cases where Rules 52 to 65 of this Schedule will apply. The second clause of Section 363 (1) is thus evidently limited to the cases where according to Rule 92, Rules 52-65 will apply, for in other cases no sanction being necessary, the question can hardly arise of any breach or variation of its terms. Clearly, therefore, this clause also contemplates a type of cases where the commencement, the continuance or the completion of the alterations, additions or the other building work is illegal. The third clause of Section 363 (1) deals with the failure of the owner to carry out duly the alterations required under a notice issued by the Corpo....
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....nder Section 364 (1). This will have to be reverted to when a careful examination of the different clauses of Section 364 (1) has prepared us for a probe into the terms of Section 364 (2) in our search for its true meaning. It will suffice here to say that the rule of limitation which is laid down in Section 363 (2) makes the time when the work is done the starting point of limitation and the work referred to in Sub-section (1) and therefore, necessarily in Sub-section (2) also, as already seen, is work which is illegal. In other words, as far as proceedings under any of the clauses of Sub-section (1) of Section 363 go, limitation begins to run from the time when the illegal work is done. This will be so, even in a case falling within Clause (3) of Section 363 (1) where, if one might say so, the Corporation's right of action does not arise till the time mentioned in the notice under Rule 22 of Schedule XVII for making the alterations has expired, because as far as proceedings under Section 363 (1) are concerned, there is nothing at all which entitles the Court to make changes in the terms of Section 363 (2) so as to adapt it to the proceedings in question, as there is in the ca....
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....ny or an outhouse not exceeding 15' in height and along not more than one-third of the frontage, no permission is necessary. This sub-section which is mentioned in the second clause of Section 364 (1) does not at all empower the Corporation to require an owner to remove a building. Sub-section (4) provides that if the Corporation grants permission under Sub-section (3) it may require the owner to execute an agreement in accordance with the proviso to sub-s. (1). That agreement, as already stated, entitles the Corporation to require the owner to remove the addition. Clause (3) of Section 364 (1) deals with a case where a person making any additions to a building in pursuance of an agreement under the proviso to Section 303 (1) fails to remove such additions when called. upon to do so by the Corporation. It is, therefore, clear that while Clause (2) of Section 364 (1) provides for a case of failure or omission on the part of the owner to comply with a notice not really under Section 303 (3) but under the terms of the agreement executed under Sub-section (4) of Section 303, for the removal of a building or additions thereto between a street alignment and the building line, Clause ....
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....olition after notice to the Owner and the occupier and if upon such consideration, it is of opinion that it has not been made fit for human habitation and that the necessary steps are not being taken with the diligence to render it fit for that purpose, it shall serve a notice on the owner and the occupier requiring them to demolish the building, Evidently then, in this case also it is not till the date by which the building is required to be demolished has expired, that there is an illegal omission on the part of the owner, there being nothing illegal till the expiry of that date. 139. Clause (6) of Section 364 (1) provides for a case of a privy or urinal being placed in contravention of Rule 21 or Rule 22 (1) of Schedule XV. This schedule contains the rules as to drains, privies and urinals. Rules 1-18 relate to drains, and Rules 19-38 to privies and urinals. Both R, 21 and Rule 22 (1) deal with service privies and service urinals. The first prohibits the placing of such privies or urinals more than 11' high at the space to be left vacant at the back of a building, the placing of such a privy or urinal within less than six feet of a public building, a dwelling place, a kit....
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....Sub-rule (2) of Rule 7 lays down that the Corporation may by written notice require the owner of any building situated within a distance of 30 from any other building and having at the commencement of the Act of 1923 an external roof or wall made of any such inflammable material, to remove or alter such roof or wall. As pointed out by My Lord Das Gupta, J., Section 36 of Act XIV of 1856, Section 142 of Act VI of 1863 and Section 224 of Act II of 1S88 prohibited the use of inflammable material in the making of external walls or roofs and made a contravention of the rule an offence punishable with fine. There was, however, no such provision in Act IV of 1876. Section 368 of Act III of 1899 prohibited the use of such materials in the construction of external walls and roofs and Section 574 made it a penal offence. But, it made an exception in the case of bamboo shingle and wood and also in the case of certain structures and structures with walls and roofs made of inflammable material in certain areas. In Rule 7 (3) of Schedule XVII of the Act of 1923, the provisions making exceptions in the case of bamboo shingle or wood and of certain structures are retained, subject to the reservati....
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....do and as the Corporation- is legally entitled under the rules referred to in the different clauses to make such requisitions or orders by written notices, such omission or negligence on the part of the owner, the occupier or the owner of the land is clearly illegal, to the extent of entitling the Corporation to ask for Magisterial intervention for setting matters right. Clause (6) on the contrary contemplates a case where the placing of a service privy or urinal in contravention of the rules is in itself illegal or unauthorised so as to justify the Corporation in approaching the Magistrate for intervention without any further notice requiring the owner or the occupier to do anything, apart of course, from a notice under the proviso to Section 364 (1) itself. Clause (7) is a combination of an illegal work and an illegal omission, the illegal omission arising as a consequence of the illegal work. 144. As the first clause of Section 364 (1) stands, it is in form at least very similar to all the other clauses save and except Clause (6), so that at first sight at any rate the omission on the part of the owner or occupier to remove or alter the projection, etc., within the period pre....
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....ied by the Corporation in its notice. under Section 299 (1) gives rise to an illegal omission on his part. From this point of view, Clause (1) reflects within itself the broad division marked on the one hand by Clause (2), (3), (4), (5), (8), (9) and (10) and on the other by Clause (6) and (7). If of course, it were possible to limit the application of Section 299 (1) only to cases where the veranda, etc.. does not cause a projection, etc., to a public street at the time of its construction but causes it later so as to render the owner's omission to remove or alter it within the time specified in the notice under Section 299 (1) an illegal omission, Clause (1) of Section 364 would necessarily be confined to one class of cases only, but Section 299 (1) is couched in such general terms that it is impossible to restrict its operation to one class of cases-only without doing violence to its language. 145. On an analysis of Section 363 (1) and 364 (1) therefore, it is clear that the first contemplates a type of cases where the work done is illegal at the time when it is done and the second contemplates two types of cases, in one of which the work done is illegal at the time when ....
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....tedly does not make use of the word "act'1 but it uses the expression "work which has been done". That as already shown, means 'work which has been illegally done". "Work illegally done" is only another mode of expressing the same thing as an illegal act and therefore, the words "work which has been done" must be held to be words which refer to acts done and so on the rule of interpretation embodied in Section 3 (2) of the Bengal General Clauses Act, they extend to illegal omissions. The starting point of limitation therefore, for the cases coming within Clauses (2)-(5) and Clauses (8)-(10) is the date by which the specific work as directed by the Corporation is to be done and is illegally omitted to be done or left undone. As Clause (1) covers both types of cases, it must necessarily follow that for the class of cases where the work is illegal at the time when it is done, no changes are called for in the words of Section 363 (2) to make it applicable to the proceedings: and for the other class, namely where there is only an illegal omission, the only change necessary is exactly what the proceedings under Clauses (2)-(5) and Clauses (8)-(10) call for, namely that for the wo....
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....1) makes the. illegality of the omission this starting point. The question, however, sti1! remains what is to happen when there is a combination of both. For a correct answer to this question, the relation between the illegal work and the illegal omission has to be examined. If a construction is illegal from the very beginning, nothing that the owner may leave undone with respect to it can make it any more illegal than it ever was, so that by his omission to carry out the directions of the Corporation in its notice under Section 299 (1) or under Rule 2 (5) of Schedule XVI the owner or the occupier does not become guilty of a fresh illegality, though at best he might be guilty of an aggravation of the original illegality committed by him, by his refusal to remove 01 alter the offending structure or to comply with the condition on which permission to erect a veranda was given. Even if the subsequent omission amounts to a fresh illegality, it clearly stems from the original illegality in the sense that were there no projection at the time of the construction of the veranda or were there no construction of a veranda without satisfying the conditions imposed, there would be no notice un....
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.... aware of the necessity of its removal or alteration has been exhaustively dealt with by My Lord, Das Gupta, J. I respectfully agree with his conclusion that that contention is not tenable and for the reasons given by him. 148. The argument in question is that Section 299 is a special provision dealing with verandas, etc., attached to buildings so as to form part thereof and overriding the general provisions relating to buildings, so much so that if their erection itself is unauthorised or illegal in the sense that they cause projections, etc., over public streets even at the time of their erection, the taint of that original sin will not stick to them and they will always be. governed by Section 299 to the exclusion of other sections relating to buildings in general, and consequently, time will always run in their case from the date of expiry of the period of the notice under Section 299 (1), Let us examine the soundness of this proposition. The general provisions relating to buildings occur in Ch. XXI. Section 319, the very first section of that chapter, provides that no new buildings shall be constructed otherwise than in accordance with the provisions of Ch. XXI, Schedule XV....
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....d consequently the Court is bound to give effect to all the provisions according to their natural meaning. It must accordingly be held that there is no substance in this argument. 150. It has been already pointed out that the words of either Section 363 (2) or Section 364 (2) do not indicate that the Legislature intended any relaxation of the rule of limitation it was laying down; far less can it be held that it could have intended any such relaxation of the rule of limitation at the sweet will of the Corporation on which was imposed the statutory duty of looking after the maintenance of public streets, for that would be the precise effect of the view that where there is a primary illegality followed by a secondary illegality in the form of an illegal omission as a necessary consequence of the primary illegality the Corporation by merely issuing a notice under Section 299 (1) would be entitled to give itself the benefit of a new starting point of limitation, thereby taking advantage of its own laches. 151. A close examination of the terms of Sections 363 (1) and 364 (1) would go to show that the two were not meant to be mutually exclusive and there is a certain amount of over....