Dayamoy Chatterji vs Corporation of Calcutta

P. Chatterjee, J.—This is a Second Appeal from the judgment and decree of the appellate Court in T.A. 1065 of 1966 affirming the judgment and decree of the trial Court in Title Suit No. 242/65. This suit and the Title Suit No. 230/65 were treated analogous in the Courts below. But the Second Appeal arising from Title Suit No. 230/65 is not yet ready for hearing.

Title Suit No. 242/65 was instituted by the Plaintiffs who are the owners of certain premises on or near about a projected public street under the Calcutta Corporation. Defendant No. 1 is the Calcutta Corporation and 2 to 6 are the owners of the premises Nos. 106/12 and 106/13, Hazra Road, which have been subsequently amalgamated and numbered as No. 106/12, Hazra Road.

On July 19, 1940, the Corporation of Calcutta, Defendant No. 1 sanctioned an alignment 30'' wide through the premises No. 106/12 and 106/13, Hazra Road. The learned Advocates for both the sides agree that it is not a street alignment as defined in Section 5(71) of the Calcutta Municipal Act; it is really a projected public street. I would, therefore, call it a projected public street. The provisions of Section 356, 357 and 358 are applicable to a projected public street. This is u/s 364 of the Calcutta Municipal Act, 1951. Such sanction of the Calcutta Corporation is evidenced by Ex. D/10. This resolution relates to a projected public street. Thereafter, certain plans which are marked Ex. 1 series were sanctioned by the Corporation of Calcutta to different persons in the locality and these plans depicted the projected public street 30'' wide. u/s 382(1)(a) of the Calcutta Municipal Act, no new building shall be erected unless the site of such building abuts a projected public street or a public street or a private street. According to the Plaintiffs, plans as in Ex. 1 series were sanctioned because they abutted on the projected public street sanctioned on July 19, 1940. On behalf of the Defendant Nos. 2 to 6 it is pointed out that all the plans marked 1 series would show that the plans were sanctioned not on the basis of the projected street but on the basis of the existing street, the projected street might have been merely shown in the sanctioned plans. However, all these plans were sanctioned between 1947 and 1957 during which period the resolution dated July 19, 1940, of the Calcutta Corporation was in force. The resolution for projected public street of 30'' wide was modified by another resolution (Ex. E) by the Corporation on January 18, 1957, and the width of the projected street was reduced from 30'' to 20'' by this second resolution. Again on December 2, 1960, the Calcutta Corporation passed another resolution Ex. D/8 modifying the resolution dated January 18, 1957, and the width of the projected street was restored to 30'' as originally resolved on July 19, 1940. Subsequently, it appears, there was some doubt in the Calcutta Corporation as to the validity of the said resolutions modifying the original resolution dated July 19, 1940, and they thought it fit to take the opinion of the Advocate-General, West Bengal, as to the validity of the modification made. I have accepted additional evidences with the consent of the learned Advocate for all the parties in this Second Appeal--the said case for the opinion of the Advocate-General and the opinion of the Advocate-General. They have been marked Exs. H.C.(A) and H.C.(B). I shall discuss this matter of additional evidence later on. After having received the opinion of the Advocate-General the Corporation passed another resolution Ex. D/7 on December 8, 1961, by which the Corporation resolved as follows:

In view of the opinion of the learned Advocate-General, West Bengal, given on 3rd March, 1961, the 30'' alignment through premises Nos. 106/12 and 106/13, Hazra Road, sanctioned by the Corporation on the 10th July, 1960, be cancelled.

However, there is evidence on record which would show that the Corporation intends to pass a further resolution regarding the said projected street and they are at present inclined to have the width of the projected street to be 20''. But no such resolution has yet been passed because of the pendency of this proceeding as is stated by the learned Advocate for the Corporation of Calcutta as also by Mr. Mitter for Defendants Nos. 2 to 6.

On or about July 13, 1963, subsequent to such cancellation, sanction was granted to the Defendants Nos. 2 to 6 to construct their houses on their land which was included in a portion of a projected street; according to Mr. Sinha the Defendants 2 to 6 were the owners of the land which constituted the projected public street, but the land has now vested in the Corporation. Defendants 2 to 6 deny the same and assert that they are still the owners; the Defendants 2 to 6 dug earth on that portion of their land which was included within the 30'' projected public street as it was but outside the 20'' projected public street as it was. That was the occasion for the present suit. The Plaintiffs prayed for injunction against the Defendant No. 1 in prayer (b) restraining it from giving effect to plan No. 195 dated July 13, 1963, or sanctioning any plan for construction of any building on and affecting in any way, the street alignment described in details in the schedule attached to the plan or relinquishing any portion of the same. They also prayed for injunction against the Defendants Nos. 2 to 6 as in prayer (a) restraining them from making any construction on the suit land in accordance with the plan No. 195 dated July 13, 1963, or interfering with or disturbing any portion of the suit land covered by the street alignment and changing the nature thereof. This cause of action for the suit is stated to have arisen on July 13, 1963, when sanction was granted and again on June 20, 1965, when the Defendants Nos. 2 to 6 began to dig earth for the construction of their building in accordance with that plan.

The Defendant No. 1, the Corporation of Calcutta, filed a written statement; it has been urged that the Commissioner, Corporation of Calcutta, not being a party to the suit, the suit is not maintainable and the relief claimed against the Corporation is vague and, therefore, it should be rejected. Defendants Nos. 2 to 6 also claimed that the suit as framed is not maintainable against them because no civil right of the Plaintiffs has been violated by anything that has been alleged in the plaint. The common question that has been raised by the Defendants is that the resolution (Ex. D/7) is not a void one, even if it is voidable, no attempt has been made to avoid it; there was no prayer for avoiding it and there could have been no such prayer as no notice as u/s 586 of the Calcutta Municipal Act was ever sent.

According to Mr. Sinha, on behalf of the Plaintiffs, the resolution dated December 8, 1961, is void. Under the Calcutta Municipal Act, 1923, a building line or a street alignment which would necessarily include a projected public street could not be cancelled. But the Act of 1951 has provided for the same in Section 357. Mr. Sinha urged that by the provision in Section 357 an alignment or a projected public street, sanctioned under the Calcutta Municipal Act, 1923, cannot be cancelled under the corresponding Act of 1951 and hence such cancellation is void. Mr. Sinha did not press his argument further because there was specific provision in Section 357 for cancellation of a street alignment under the Calcutta Municipal Act of 1923. But the second branch of this point is that Section 357 of the Municipal Act offends the Constitution; Article 13 read with Article 19(1)(f) recognised the right of a citizen to hold property; this has been denied or unreasonably restricted by Section 357. According to Mr. Sinha a right to go to a public street from a house and a right to enter the house through a public street is a servitude and, therefore, a property and that property has been taken away by the resolution dated December 8, 1961, and it cannot be so taken away and it is unreasonable to take away such right. Hence, it offends Article 13 read with Article 19(1)(f) of the Constitution. The third point raised by Mr. Sinha with regard to Ex. D/7 is that the Corporation did not enter into the question of the expediency as it must do u/s 357(1). Therefore, this resolution is bad. Finally, Mr. Sinha urges that a resolution for a projected public street may be cancelled, but when a street has been completed there is no question of cancellation of the resolution for a projected street and the street was constructed before December 8, 1961. There is no point in cancelling the resolution for a projected street after the resolution was implemented and ceased to have any effect as a mere resolution.

Mr. Sinha then proceeds to say that if the resolution Ex. D/7 is void and invalid then that must be over-looked and we shall proceed as if no resolution was passed on December 8, 1961. If no resolution was passed on December 8, 1961, then, according to Mr. Sinha, there would still remain the resolution dated July 19, 1940, which was amended in 1957 and which was restored to its original shape by another resolution in 1960. Therefore, Mr. Sinha urges that the Corporation was not in a position to grant any sanction to the Defendants Nos. 2 and 3 for encroaching a portion of a projected street and, therefore, the sanction was void. He urges that as it is void no prayer is necessary for declaring it void, nor it is necessary to avoid it. Therefore, he proceeds on the basis that the resolution is void. If the resolution is void, the sanction, according to Mr. Sinha, is also void and, therefore, the Defendants Nos. 2 to 6 may be restrained from building on the basis of that sanction. Necessarily, therefore, Defendant No. 1, the Corporation, could not grant any further sanction on the basis of any 20'' alignment, and it has been prayed to restrain the Corporation from doing that. With regard to the prayer as against the Corporation for not giving effect to the plan No. 196 dated July 13, 1963, Mr. Sinha referred to various sanctions and wanted to say that the Corporation after granting such sanction will be in a position to superintend the construction and, therefore, they may be restrained from giving effect to the plan. Mr. Sinha has referred to various sections which would show if any construction is made in violation of the plan sanctioned, the Corporation has powers to deal with that matter. But that is not the matter for consideration in this case. I have not been referred to any section or any provision in the Calcutta Municipal Act, 1951, which would show that the Corporation has any power to do anything if the construction is made in accordance with the plan. I, therefore, pointed out to Mr. Sinha that the prayer against the Corporation means practically nothing. He then urged that if the facts are before the Court and the Plaintiffs have made a prayer which is too wide or which cannot be granted in accordance with the law, the Plaintiffs will not for that reason be deprived of any remedy which the Plaintiffs would be able to get on the pleadings and the findings arrived at. He, therefore, urged that under the circumstances of this case, if the sanction is void, the Corporation should be called upon to cancel the sanction.

As the question of maintainability of the suit has been urged by the Defendants, I take up the question as to whether the suit is maintainable or not. That question has two parts--whether the suit is maintainable against the Defendant No. 1 and whether the suit is maintainable against the Defendants Nos. 2 to 6.

Whether the suit is maintainable against Defendant No. 1.

It has been urged that the Commissioner is a person against whom injunction should have been prayed for and the Commissioner is not a party to the proceeding and, therefore, the suit is not maintainable in the absence of the Commissioner. I have been referred to Section 6 of the Calcutta Municipal Act which provides that the Municipal authorities charged with carrying out the provisions of this Act are (a) the Corporation, (b) the Standing Committee and (c) the Commissioner. These are the three authorities who have been charged by the provision of the Act ''to carry out the provisions of the said Act''. Sections 7 to 13 deal with the Corporation, Section 14 to 18 deal with the Standing Committee and Section 19 to 23 refer to the Commissioner. Section 24 provides that the Municipal government of Calcutta shall vest in the Corporation, but the Corporation shall not be entitled to exercise or discharge any powers, duties or functions expressly assigned by or under this Act or any other law to a Standing Committee or to the Commissioner. Section 25 provides that the Standing Committee and the Commissioner shall be bound by and shall give effect to every resolution of the Corporation unless such resolution is annulled by the State Government. Chapter III deals with distribution of powers and safeguarding due exercise of powers of the three authorities aforesaid. But the Municipal government vests in the Corporation of Calcutta though the actual carrying out of the provisions of the Act is to be done by the authorities stated above under various circumstances. Therefore, the Commissioner is charged with the duty of carrying out the provisions of this Act and he shall give effect to certain resolution of the Corporation. Under Schedule XVI, Rule 55 the Commissioner shall, by a written order, grant permission conditionally or unconditionally to execute the work of building or erecting a house; the Commissioner is charged with the duty of granting sanction. There is no prayer as yet in the suit asking the Corporation of Calcutta to cancel the sanction, though Mr. Sinha has urged that on the prayer made such a relief can be obtained, that is another matter. I shall now consider whether the suit is maintainable as framed without the presence of the Commissioner. The Commissioner is the authority'' for granting sanction, and after the sanction is granted the Commissioner has nothing more to do. There is no prayer in which the Commissioner is interested. Further, even if the Commissioner refuses sanction to erect any building, the Commissioner is not the final authority in the matter. An appeal lies to the Standing Committee and under the new amending Act of 1965 to a Tribunal. Therefore, the Commissioner is the executive authority for granting sanction and so far as grant of sanction no prayer has been made though it has been urged that the grant of such sanction was void ab initio. I cannot, therefore, hold that the suit is not maintainable in the absence of the Commissioner, Corporation of Calcutta. In order to understand whether the suit is maintainable against the Defendant No. 1, we have to consider the case of the Plaintiffs. The Plaintiffs'' case in substance is that u/s 382 no new building can be erected unless the site of such building abuts on a public street or a projected public street. The resolution of the Corporation dated July 19, 1940, sanctioning a 30'' projected public street, according to the Plaintiffs, is a good and valid one and all subsequent resolutions are void, particularly the last resolution evidenced by Ex. D/7 passed on December 8, 1961. Sanction granted in favour of the Defendants evidently includes sanction to build on a portion which would be included within the projected public street 30'' wide; and, therefore, that sanction was void. Hence, an injunction has been prayed for. The main question, therefore, is whether the resolution dated July 19, 1940, still stands and whether the other resolutions of different dates, the last one of which was passed on December 8, 1961, are valid or not. That matter can only be effectively decided in presence of the Corporation because the sanction for a projected public street was passed by the Corporation as the resolution states. Therefore, so far as these resolutions are concerned the Commissioner had nothing to do. Therefore, the Commissioner''s presence is unnecessary so far as those matters are concerned. Supposing now the Plaintiffs succeed in proving that the resolution dated July 19, 1940, stands and the other resolutions are void. Sanction granted by the Commissioner to Defendants Nos. 2 to 6 would be bad because it encroached a portion of the projected public street; but still the Commissioner has not been asked in this suit to withdraw such sanction and so his presence is not necessary. Therefore, I do not think that the suit is not maintainable on the plaint as it is because of the absence of the Commissioner. Mr. Sinha has urged that the prayer would include a prayer commanding upon the Corporation to withdraw the sanction granted by the Commissioner. When I discuss that matter I shall consider the said argument. In support of his argument Mr. Sinha has referred to a decision in Ramdhari Singh v. The Corporation of Calcutta 69 C.W.N. 278, and it has been held that all suits against the Corporation are not bad if the Commissioner is not a party. The matter there was u/s 354 and the statute required that the Corporation would give notice for removal of obstruction in the public street. Therefore, the Commissioner had nothing to do so far as that matter was concerned and the suit was not considered to be bad. Hence, whether in a particular case the Commissioner is to be made a party or not, will depend on the circumstances of each case and the prayers in each case.

Under Schedule XVI, Rule 55 the Commissioner is the authority to grant sanction. The Commissioner is a Municipal authority within the meaning of Sections 6 and 585, and Section 586 contemplates suits against Municipal authorities. Hence, if the Plaintiffs had prayed for withdrawing the sanction granted by the Commissioner, he might have been a party necessary for that purpose. But that is not the prayer in the plaint. Whether we can grant such a relief or not is a different matter, and I shall consider that matter later on. There is no prayer in the plaint for directing the Commissioner to withdraw sanction already granted by him. The Plaintiffs want an injunction against the Corporation and the main reason is that the resolution of the Corporation of 1940 is still effective, but the other resolutions are void and that is a matter which can be decided in the presence of the Corporation. If so, the Plaintiffs urge that the sanction granted to the Defendants Nos. 2 to 6 is void and they want the Corporation not to give effect to that void sanction granted to Defendants Nos. 2 to 6. They do not want the Commissioner to do anything or to refrain from doing anything. Hence, the suit is not bad for the absence of the Commissioner.

Whether the suit is maintainable as against Defendants 2 to 6.

The relief prayed against Defendants 2 to 6 is for restraining them from making any construction on the suit land described in details in the schedule to the plaint or in the plan No. 195 dated July 13, 1963. The cause of action as against Defendants Nos. 2 to 6 is because of digging for construction on July 5, 1965. When Defendants 4 to 6 threatened that they would continue to construct according to the alleged sanctioned plan. u/s 354, Sub-section 1 the Corporation has the power to give a notice to any person to remove any obstruction or encroachment in a public street. Therefore, for such digging in any portion of a public street, if it be a public street, the Corporation might have taken steps as in Section 354 of the Calcutta Municipal Act. But such interference with the property of Corporation does not give right to any remedy to a person who suffers no damage by such digging. An allegation against the Defendants Nos. 2 to 6 in para. 9 is that, if the construction is made, the projected public street will be reduced in width and there will be infraction of air and light. This is some allegation relating to an act of tort. Whether it will be granted or not is another matter, but there is some allegation in the plaint which gives rise to a cause of action of the Plaintiffs against the Defendants Nos. 2 to 6. Hence, the suit is maintainable as against the Defendants 2 to 6. This principle has been well-recognised in the decision in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, . The decision of A.N. Ray, J. in Krishna Kali Mallik Vs. Babulal Shaw and Others, does not contradict the decision in Nandalal''s case so far as this matter is concerned. I, therefore, hold that the suit is maintainable against the Defendants Nos. 2 to 6. The next question is regarding.

Validity of the resolution dated December 8, 1961.

I have already referred to that resolution. That resolution is in three parts--the first part refers to the opinion of the Advocate-General dated March 3, 1961, the second part refers to the 30'' alignment through premises Nos. 106/12 and 106/13 Hazra Road and the third part refers to the sanction of the Corporation of Calcutta dated July 10, 1960. It is admitted that the Corporation passed no resolution with regard to any alignment through premises Nos. 106/12 and 106/13 Hazra Road on July 10, 1960. It is urged, therefore, that the resolution is void in law this resolution is ineffective; it cancels something which is not in existence. Mr. Sinha further points out that this resolution was passed by the Corporation under its statutory powers. Therefore, it has the effect of a statute; and Mr. Sinha therefore says, if there is any case of omission in a statute, it is not for the Court to supply that omission. The Court will have to accept that omission and proceed to interpret the statute as if it were no omission at all. This is the general principle of interpretation. But there are exceptions to ordinary principles of interpretation. These exceptions have been considered by Maxwell in chap. IX under the heading ''Exceptional Construction''. Mr. Mitter urges that the Court has the power to correct any clerical mistake made in the statute relating to dates. Mr. Mitter refers to sub-heading ''Omission'' in chap. IX of Maxwell and urges that an omission which the context shows with reasonable certainty to have been unintended may be supplied, at least in enactments which are constructed beneficially as distinguished from strictly. If the statute in question is penal then the principle would not apply, but this principle will apply when the statute is beneficial; the Calcutta Municipal Act is such a statute. Mr. Mitter then refers to p. 258 of Maxwell (9th ed.) and relied on the following observation.

Clerical errors may be read as amended, as where, for instance, an Act refers to another by title and date and mistakes the latter.

In a case where a statute refers to another statute correctly by its title, but there was error regarding the date of such statute, the Court may read the latter statute as amended that means as if the correct date was inserted. The principle there is if this omission can be detected with reasonable certainty and if such omission appears to be unintended, it may be read amended. Therefore, we have the power to read the resolution as amended if from the two other parts of the resolution, the date can be ascertained and the mistake is to be considered to be unintended with reasonable certainty. The other parts refer to the opinion of the Advocate-General and to the alignment through premises Nos. 106/12 and 106/13 Hazra Road where the alignment is 30''. We have before us the original resolution dated July 19, 1940; this was a resolution regarding an alignment through the aforesaid premises and ''the alignment was for 30''. But there was another resolution dated December 2, 1960, that the resolution dated January 18, 1957, be modified and there should be alignment through the said premises and it should be 30'' wide. Therefore, from the reference of the alignment and from the width of the alignment, we cannot say with reasonable certainty whether the resolution dated December 2, 1960, was cancelled or that the resolution dated July 19, 1940, was cancelled. But all that is clear is that it does not refer to the other resolution dated January 18, 1957, where the alignment was reduced from 30'' to 20'' wide. The other part of the resolution refers to the opinion of the Advocate-General. Mr. Sinha in this Court raised objection that the opinion was not available to the Court below and the Corporation should produce it at once. In order to construe the resolution dated December 8, 1961, that opinion was necessary, and without that opinion Ex. D/7 could not be properly understood. The lawyer for the Corporation agreed, in view of the argument of Mr. Sinha, to produce not merely the opinion but the case for the opinion on which the opinion was passed and by consent of parties these two documents were marked Exs. H.C.(A) and H.C.(B). But in my opinion those documents are necessary for the proper determination of a matter in controversy in the present suit and I, therefore, directed that evidence be admitted. If I now refer to these two documents we would find that the Corporation had difficulty in ascertaining as to whether the resolution dated January 18, 1957 and December 2, 1960, were valid because they simply modified the earlier resolution and did not cancel it, and Sections 356 and 357 refer to passing of a resolution and to cancellation of such resolution, and therefore they had doubt whether the Corporation has or had power to modify a resolution. They being in doubt referred the matter to the Advocate-General. The opinion of the Advocate-General was that the Corporation had no power to modify. Hence, it is clear from that opinion that the Corporation considered the resolutions dated December 2, 1960 and January 18, 1957, to be void. Whether the opinion of the Advocate-General was right or wrong is another matter. But that opinion resolves the doubt that the only resolution which could be validly cancelled was the resolution passed in 1940 and the other two resolutions were void ab initio. Hence, it is clear that the Corporation did not take into account the resolution of 1960 and, therefore, I may say with reasonable certainty that the mistake was in the date of the resolution which should be dated July 19, 1940. Because of the opinion of the Advocate-General the resolutions dated July 18, 1957 and December 2, 1960, required no cancellation. The only other resolution relating to an alignment through the premises in question was the one dated July 19, 1940. The date July 10, 1960, in the resolution, Ex.D/7, is an obvious oversight because there was no other resolution relating to that alignment and relating to the opinion of the Advocate-General. Hence, this insertion was an obvious oversight; even if I cannot correct the mistake by way of interpretation, I may overlook the mistake as being an obvious oversight and try to construe the resolution without any reference to the portion i.e. dated July 10, 1960. Even then it can be said with reasonable certainty that the resolution of 1940 was cancelled because that was at that time the only effective resolution (according to the opinion of the Advocate-General) which related to that alignment.

This principle of exceptional construction does not apply ordinarily. The exceptions under which they apply have been stated by Maxwell in the following language in chap. IX, p. 236:

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modified the meaning of the words, and even the structure of the sentence.

In this case it is quite clear that the Corporation intended to pass a resolution. It would be absurd to say that they intended to do nothing. The apparent purpose of the resolution was to cancel the earlier resolution. Unless properly construed that purpose will be defeated. It would also do harm and injustice to Defendants Nos. 2 to 6 who are no parties to such resolution and who obtained sanction on the basis of the resolution, Ex. D/7. I would hold that the principle of exceptional construction would apply to the facts of the case and, therefore, this argument of Mr. Sinha must be overruled.

Mr Sinha next urges that the resolution relating to cancellation is not effective because the projected public street was completed before the date of the resolution. The date of the resolution, Ex. D/7, is December 8, 1961. If by that date a public street had already come into existence, the resolution for a projected public street would cease to stand as a resolution and there was no question of cancellation of such resolution. According to Mr. Sinha the projected public street was completed before December 1961. Hence, the cancellation of the resolution means nothing. According to Mr. Sinha, if a projected public street is constructed by the Corporation it will have no power to abolish that street and sell that land to the public. That is not a matter which I need consider. The first question here is whether the projected public street came into existence before the date of the resolution. That is entirely a question of fact. That question of fact was not urged in any of the Courts below. The Corporation had no notice while it adduced evidences that such a point would ever be taken. Mr. Sinha urges that as there is evidences and as that point arises I may decide that point in second appeal u/s 103 of the Code of Civil Procedure. Section 103 of the said Code reads as follows:

In any Second Appeal the High Court may, if the evidence on record is sufficient, determine any issue of fact necessary for the disposal of the Appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100.

In the circumstances of this case the question of fact, namely, whether the street in question was constructed before the date of the resolution has not been determined either by the trial Court or by the lower appellate Court.

The next question is whether this point of fact is necessary for the disposal of the appeal. For the reasons, which I shall consider later on, this point of fact is not necessary for the disposal of the appeal. Further the High Court has power to determine an issue of fact when the evidence on record is sufficient. The Corporation of Calcutta had never any notice that such a point of fact would be urged at any stage and, therefore, the Corporation adduced no evidence as to the date on which the projected public street was completed. It is true that on record there is some evidence that there was something like a public street at some point of time; it is impossible from the record even to say that the public street of 30'' wide came into existence on any date prior to the passing of the resolution. I do not think that there is sufficient evidence on record to determine that issue of fact. I do not also think that justice would be done to the parties if that issue of fact is decided on the basis of the evidence on record because it would deprive the Court of the benefit of the entire evidence on the matter, I cannot, therefore, say that the High Court had power u/s 103 in a case like this to determine a question of fact, namely, whether a projected public street was constructed before December 1961 on the ground that the parties had no notice of such point of fact being urged and, therefore, sufficient evidence has not been brought on the record. Secondly, this issue of fact is not very necessary for the disposal of the appeal, and hence this point of Mr. Sinha is overruled.

The third point of Mr. Sinha is that Section 357 of the Calcutta Municipal Act offends the Constitution. The Corporation had no power to cancel a projected public street. According to Mr. Sinha, there was a public street. Therefore, he had a right of servitude over the public street. By cancellation he has been deprived of that servitude. Servitude is property and, therefore, he has been deprived of the property and he has been deprived unreasonably of that property. Hence, Article 13 and 19(1) of the Constitution are offended. That point has not been urged in any of the Courts below, and this being a question of law I have allowed Mr. Sinha to raise that point. Mr. Sinha has referred to the decision in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . The Supreme Court observed that the word ''property'' as used in Article 19(1)(f) of the Constitution should be given a liberal and wide connotation and should be extended to all well recognised types of interest which has the insignia or characteristic property right. Mr. Sinha further says, he has been deprived of the property and he has been unreasonably deprived of the property. According to Mr. Sinha there was no reasonableness in shortening the width of the road and, therefore, it is an unreasonable restriction. This argument of Mr. Sinha is, however, based on assumption. u/s 356(3) of the Calcutta Municipal Act the Corporation may make an order prescribing a street alignment or projected public street. Section 357 provides that the Corporation may cancel the order after 10 years and shall cancel it after 25 years. It is order for a street that is cancelled. If no street comes into existence in 25 years of the order it must be cancelled. Section 356 or any other section of the Calcutta Municipal Act does not provide that a street which comes into existence will be excavated and the land sold. Servitude arises only when there is a public street and, if that street is excavated and sold, servitude acquired would be affected; had there been such a position it might offend the Constitution. Section 357 relates to cancellation of a chance of a street which street if constructed would give rise to such servitude. But as long as it is not constructed there is no servitude; hence no property right is affected and, therefore, no question of violating the Constitution. Section 357 of the Calcutta Municipal Act is not void as offending the Constitution.

But that does not answer all the questions raised by Mr. Sinha. By the resolution dated December 8, 1961, the resolution dated July 19, 1940, was cancelled. The question then is what happened to the other two resolutions passed in 1957 and 1960. Mr. Mitter has urged on the basis of the opinion of the Advocate-General, these two resolutions are void. Mr. Sinha has rightly pointed out that the opinion of the Advocate-General is not an expert''s opinion for the determination of any matter, and I have to decide that point on the evidence on record and on the submissions of the learned Advocates for both sides. I entirely agree with Mr. Sinha. I would, therefore, see whether the resolution dated January 18, 1957, is a void resolution. I shall take it that the resolution dated July 19, 1940, has been now cancelled. If the resolution dated January 18, 1957, can stand independently then the cancellation of the resolution of 1940 does not matter. Ex. ''E'' is the resolution dated January 18, 1957. That resolution again refers to the premises in question and it also refers to the proposed alignment and gives a complete idea as to the projected public street and along with it there is a plan prepared which may be inspected by anybody in the office of the Corporation. Hence, I have no doubt that the resolution dated January 18, 1957, may stand by itself without any reference to the resolution dated July 19, 1940. Hence, we have to examine whether that resolution is void. It is urged by Mr. Mitter that Section 356 grants power to pass a resolution to prescribe a building line and street alignment which would include a projected public street. Section 357, on the other hand, provides for its cancellation. By the resolution dated January 18, 1957, the resolution dated July 19, 1940, was modified. It was modified because it was in existence at that time. According to Mr. Mitter the Corporation has no power to modify the resolution though it has the power to cancel the resolution already passed. In this connection it may not be out of place to remember that there was no provision for cancellation of such a resolution for a projected public street or an alignment, in the Calcutta Municipal Act of 1923. Hence, it may be that under the Act of 1923 once such a resolution was passed, the Corporation had nothing more to do and there was no power to cancel it. Under the circumstances of the Act of 1923 it may be that the Corporation had no power to modify. But the Act of 1951 is different. It provides a power to pass a resolution, it also provides power to cancel the resolution. The opinion of the Advocate-General is that the Corporation may cancel an earlier resolution and pass a new one providing a shorter street, or in other words, it can do the same thing but by another method. It will pass one resolution cancelling the earlier, then a second resolution providing a new street with modified width. It is urged that there is no power to modify, but still the same modification may be achieved by two resolution instead of one; this is something which I do not very much appreciate. If a single resolution of modification is passed, that is void. If two successive resolutions are passed, one cancelling and another introducing the earlier resolution with some modification, they are valid. However, the question here is not whether the word ''cancellation'' implies modification as Mr. Sinha first urged. But later on Mr. Sinha urges that power to cancel would include power to modify. If there is power to pass a resolution and if there is power to cancel that resolution, the existence of these two powers imply a third power, i.e. the power to modify which is intermediate between the two.

Section 17 of the General Clauses Act may be referred to. This section does not prove the proposition, because power to pass a resolution is different from the power to appoint a person. If a person is appointed, the question would be whether there is implied power to suspend or dismiss; unless that is granted the power of appointment is ineffective. Therefore, these are implied. I may refer to Maxwell''s interpretation of statute in chap. XII which relates to intention attributed to Legislature where it expresses none. In such circumstances of the case the question is: What was the intention of the Legislature regarding modification where it expresses none? Therefore, such question comes under chap. XII. The first section refers to implied enactments, necessary incidents and consequences. The question is: Has the Legislature, which provided in the Calcutta Municipal Act for resolution for a projected public street and also for their cancellation, impliedly provided for modification? They have the power to cancel a resolution if they think it to be expedient. If they cancel the resolution, the resolution goes entirely. If they have the power to reduce it to nothing, the question is whether that would imply a power to amend that resolution or to alter the scope of the resolution. Ordinarily the ''Legislature is presumed not to intend any alteration in the law beyond the immediate and specific purpose of this Act''. The immediate and specific purpose for alteration of the statute in 1951 was to introduce a provision for cancellation. The question is: Does it necessarily imply modification? The Corporation is granted power impliedly to do anything which necessarily follows from the aforesaid provision. The Corporation of Calcutta is one which is incorporated by the statute. Hence, it can do only such acts as it has been duly authorised. What is urged is, it has been authorised to cancel, but it has not been authorised to modify. Therefore, it has no power to modify. The question then is: Does the power to cancel imply power to do something lesser? Or the question is, whether in order to give full effect to the power of cancellation the power to modify would be implied. It is an well-known principle of law as stated by Maxwell at p. 360:

Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution,

and this has been interpreted to mean that when an Act authorises the making of bye-laws, it impliedly authorises the annexation of a reasonable pecuniary penalty for their infringement and also provision for recovery of it by action or distress. It has also been held that when powers, privileges or property are granted by statute, everything indispensable to their exercise or enjoyment is impliedly granted also as it would be in a grant between private persons. Hence, from the grant of certain power, other powers which are necessary and which are indispensable to the exercise and enjoyment of that power are impliedly granted by this statute. In this case the statute has granted the Corporation power to construct a road and it has also granted it the power to cancel the resolution; if in the circumstances of any case it is found that the road to be made should be wider or narrower, it is urged that the Corporation has no power to do the same. When power has been given to the Corporation to do away with something entirely, that in my opinion includes the power to do away with it partly because the entirety includes a part. Hence, the power to do away with the resolution entirely includes the power to do away with the resolution partly because the whole includes the part. In my opinion, therefore, the power to pass a resolution and the power to cancel a resolution implies the power to modify the resolution. The result, therefore, is that I must agree with Mr. Sinha that apart from other things the resolution of 1957 was one within the competency of the Calcutta Corporation.

Whether a particular resolution is void or voidable would depend on (a) whether the authority which passed the resolution was duly constituted in accordance with law and (b) whether that authority had the power to pass a resolution on the subject. If these two conditions are satisfied the resolution is not ab initio void. But if a competent body has passed the resolution with regard to a matter which is in their competency to decide but still passes a resolution not in accordance with the rules and procedure referred to in the law or in violation of the law or in violation of the principle of natural justice, such a resolution may be avoided by a competent Court. But such a resolution is not ab initio void. It is voidable; it has to be avoided to make it void.

The resolution of 1957 was passed by a competent body with regard to a subject within the power of the said body. Hence, it is not void ab initio.

The next question is whether any of the two resolutions violated the law. The Corporation, before it passes the resolution u/s 357, must consider it ''expedient to cancel'' the street alignment and such consideration must be made at a time beyond ten years from the date on which the resolution was passed. Section 357 further shows that the Corporation may cancel it after 10 years, and it shall cancel a resolution within 25 years. The resolution of 1957 was passed 17 years after the resolution of 1940 regarding alignment. Therefore, it was passed after 10 years. The next question is whether the Corporation considered it expedient to modify the alignment.

I agree with Mr. Mitter that if the Corporation had considered the question of expediency whether it considered it rightly or considered it wrongly, the purpose of the Act would be served and the Court will not be in a position to redetermine that point or, in other words, there is no justiciability of such consideration of expediency. The question arises: Did the Corporation consider the question of expediency? Mr. Mitter has urged that as the existing road was 20'', the projected street was reduced to 20'' from 30'', it may or may not be so. It is difficult for me to say, that they must have considered the question of expediency. I must again say that this point cannot be raised in this Second Appeal for the first time where new questions of facts cannot be urged. Had it been the case of the Plaintiffs that the resolution was passed without the consideration of expediency, it was for the Plaintiffs to say in the plaint. If the Plaintiffs had said that, the Defendants might have denied it or admitted it. If the Defendants denied it, the Plaintiffs would have to prove that the matter of expediency was not considered. But it was not pleaded. But had the question of expediency not being considered at all, even then the resolution would not be void but would merely become voidable or, in other words, the authority vested by law did something within their power, but when it exercised its power it did not act in accordance with law. Hence, this would not be a case where the resolution would not be void ab initio but would be a case where the resolution would have been avoidable. But in the present suit there was no prayer for avoiding the said resolution. Mr. Sinha has urged that the Court has such power. Undoubtedly the Court has power in a case where the Plaintiffs placed their case too high to grant them such a relief as the Plaintiffs may be entitled to. Vide Malik Ahmad Ali Khan v. Musammat Shamsi Jahan Begam (1906) 33 I.A. 81. Therefore, a prayer to treat a resolution as void may include a prayer to avoid it. But again in doing that the Court cannot do anything which offends the provisions of the statute. The Plaintiffs could not have applied for avoiding the resolution unless by giving a notice u/s 586(1) of the Calcutta Municipal Act. Therefore, even if we consider that the prayer for avoiding the resolutions of 1957 and 1960 has been impliedly made, we cannot grant the same because of absence of notice u/s 586(1) of the Calcutta Municipal Act. Hence, my finding with regard to the resolution dated January 18, 1957, is that the resolution is not void and it might have been avoided, but no steps being taken in accordance with the law for avoiding, I cannot go into the matter whether it should have been avoided or not.

Next I consider the resolution of 1960. The said resolution was passed on December 2, 1960, modifying the earlier resolution dated January 18, 1957. Here again the Corporation had the power to pass a resolution modifying the resolution dated January 18, 1957. The Corporation was, therefore, a competent body to pass a resolution and the subject-matter of the resolution would be within the scope of the Corporation, because I have held Section 357 empowers the Corporation to modify the resolution and not merely to cancel it. So far as this resolution is concerned, the Corporation does not seem to have considered two matters, namely, the resolution of December 2, 1960, was passed within the period of 10 years of the resolution made in 1957 and further there is nothing to show that the Corporation considered the question of expediency of cancelling the resolution made in 1957. u/s 357 the Corporation is empowered to cancel a resolution, i.e. after 10 years, and is compelled to cancel the resolution after 25 years. The idea is that a projected public street or any alignment or a building line should not be disturbed for 10 years; if things change in 10 years it may modified. But it would serve no public purpose if such resolutions relating to projected public streets are altered every now and then, a sense of uncertainty would grow. Hence, the statute directs that cancellation may be made after 10 years. This may or may not imply that no modification shall be made within 10 years. Hence, it is urged that the power to modify a resolution has been circumscribed by the aforesaid time period. The question is, if a resolution is passed even within 10 years, as has been done in the present case, would it be void or would it be voidable?

It is urged that it is void because the Corporation''s power to pass a resolution modifying another resolution is restricted and that restriction is for 10 years. Therefore, it is urged that during 10 years after the resolution the Corporation''s power to modify has been completely taken away. Hence, it is urged that it would be void. In my opinion, the resolution would be considered to be void if the authority or the body who takes up the matter is not authorised by law to take up that matter or if the authority concerned has not been given the power to take that subject up at all. The absence of such conditions would make the resolution ab initio void or, in other words, the authority or the body will have no power to entertain that resolution.

It may also be that the Legislature having laid down the terms and conditions under which a resolution may be entertained by a body or an authority may further provide in what manner and under what conditions that authority will exercise the power invested in it by the legislation in question, and that is what has been done u/s 357. Having provided for the body, the Corporation, and then having granted the Corporation power with regard to the subject-matter, namely, with regard to the cancellation, it further laid down under what circumstances and to what limit such power shall be exercised. In determining this limit, the Legislature has said that such resolution for cancellation will be premature if taken within 10 years and such resolution will not be passed unless the Corporation considers the expediency in its own way. Therefore, these two conditions are conditions limiting the exercise of power and not limiting power itself. The Corporation has the power but cannot exercise it within 10 years. Therefore, this is a matter relating to avoidability of the resolution and not a matter relating to voidability of the resolution. It is unnecessary, in the circumstances of the case, to enter into a discussion which at once arises, i.e. whether the word may means shall or, in other words, where the word may ordinarily means may, but by some exceptional construction the word may should be understood to mean shall. If in the context of Section 357 the word may merely means may, then there is no doubt the 10 years'' rule does not affect the question of competency of the Corporation of Calcutta or its power. Even if the word may is understood in the sense of shall, even then the competency of the Corporation of Calcutta is not challenged nor the competency to deal with the subject-matter is challenged; what is challenged is the exercise of the power of the Corporation over the matter in which they have undoubted power. Hence, where the word may is understood strictly or in its exceptional meaning shall, in any case the resolution of December 1960 would be considered to be voidable resolution and none has come to avoid the resolution, and the scope of the present suit does not include any prayer for avoiding the same. Hence, with regard to the resolution of 1957 or 1960, my findings are that they are valid as long as they are not avoided. But this is not all. It cannot be that the resolution of 1957 and the resolution of 1960 would co-exist. In 1963, when sanction was granted to the Defendant, the Corporation must have decided it either to keep the projected public street 30'' wide or 20''. But it cannot be that the projected public street in 1963 might be both 20'' as well as 30''. Hence, the further question would be whether the resolution of 1960, if valid, has cancelled the resolution of 1957. The two resolutions cannot co-exist--one contradicts the other, both are avoidable and none of them are void. Hence, the question arises whether the resolution of 1960 has impliedly cancelled the resolution of 1957? I would refer to Maxwell, chap. VII, which relates to construction to avoid collision with other provisions. On the sub-heading ''Implied repeal'', it has been observed as follows at p. 171:

Again, if the co-existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later.

If both these two resolutions are valid until avoided, the later resolution would destroy the object of the earlier. According to both the resolutions the street would be at least 20'' and there is no inconsistency so far as that is considered. But the earlier resolution said, it shall not be wider than 20'' and the later resolution says it will exceed 20'' by 10''. Hence, there would be direct collision between the two resolutions and the earlier resolution would be construed to be repealed and, therefore, only the third resolution will stand. This is apart from the question of avoidability. If the third resolution is avoided as it contradicts the provision of Section 357 in two ways, namely, it was passed within a period of 10 years, secondly, the Corporation did not consider the question of expediency, in that case the resolution would become void, and if the third resolution is declared void then there is no inconsistency in the continuance of the second resolution. As the points have been argued I express my opinion on the matter, but I do not think it would be necessary for me to go further. It is enough for me to say there is no suit to avoid any of the two resolutions and, therefore, it is not necessary for me to express any opinion as to whether any of the resolutions would stand the test regarding its avoidability. I may again mention that the resolution Ex. D/7 was passed within 10 years of the resolution of 1960 and of the resolution of 1957, and secondly it may be difficult for me to say how it would be expedient for the Corporation to cancel an alignment which has been in existence for more than 21 years and where something has been done to construct the street within that period of 21 years. However, the net result would be that neither the resolution of 1957 nor the resolution of 1960 is void though they or any one or two of them may or may not be liable to be avoided. The Plaintiff not having prayed for any declaration for avoiding any of them, the Plaintiff is net entitled to a decree avoiding any of them. Such a decree would be barred u/s 586 of the Calcutta Municipal Act, because such a decree would be inconsistent with the provision of Section 586 of the Calcutta Municipal Act.

Mr. Sinha has urged that we can grant such relief to the Plaintiffs in this particular case as they are entitled to under the law even though this has not been specifically mentioned. It is indeed true that the Judicial Committee held in Malik Ahmad Ali Khan v. Mst. Shamsi Jahan Begam Supra that the Plaintiff ought not, by reason of his having claimed too much to be precluded from recovering what he is undoubtedly entitled to a claim which the pleadings are wide enough to cover. The Judicial Committee held in Babu Raja Mohan Moucha v. Babu Manzoor Ahmed Khan 70 I.A. 1 that the mortgagee could recover the money advanced as matter of restitution even though the suit was on a mortgage which was found to be void, the Judicial Committee granted a decree for restitution. Again in Srinivas Ramkumar v. Mahabir Prosad (1952) S.C.R. 277 the Plaintiff instituted a suit for specific performance of a contract for sale, but the Defendant pleaded that he had taken a loan and so the money was due; the Supreme Court granted a decree for money. Mr. Sinha has also referred to another case in Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru, , and Mr. Sinha urged that we can grant the relief the Plaintiff has not prayed for. The Plaintiff says that sanction of the plan to Defendants No. 2 to 6 is bad because the resolution of 1940 relating to 30'' public street is valid but the other resolutions are void; if they are not void and if they are voidable the Plaintiffs have merely placed their case too high. Mr. Sinha says that we can grant them that relief which they may be entitled to; we can grant them a decree declaring that the resolutions other than the one of 1940 are void. But the Court cannot grant such relief if the power to grant such relief is circumscribed by law. Section 586 is the law which has circumscribed that power of the Court. Therefore, we can grant no decree.

The next argument of Mr. Sinha is that, even if we do not grant a declaration as stated above nor direct that the Corporation be restrained from giving effect to the sanction of the building plan, we may grant an injunction asking the Corporation to withhold the sanction or, in other words, to withdraw the sanction. This relief is also barred for want of notice u/s 586(1) of the Calcutta Municipal Act, because mandatory injunction is granted u/s 55 of the Specific Relief Act whereas Section 586(4) refers to Section 54 of the Specific Relief Act.

My conclusions, therefore, are:

(i) that the suit as framed is not bad for not making the Commissioner a party;

(ii) the suit is maintainable against Defendants Nos. 2 to 6 for their act has been pleaded to be tortuous;

(iii) the resolution, Ex. D/7, is not void; if it is voidable, this is no suit to avoid it;

(iv) the provisions of Section 357 of the Calcutta Municipal Act do not offend the Constitution;

(v) the suit is properly framed against the Corporation because the Corporation is the authority referred to in Section 357.

The suit is liable to be dismissed as the reliefs claimed cannot be granted. This appeal is dismissed with costs.

Leave to appeal under Clause 15 of the Letters Patent is asked for and is refused.

Let the order for injunction granted by this Court continue for a period of six weeks from this date.

Let the certified copy of the judgment be given within five weeks from this date.

No further order need be passed in the Rule and in the application.