Lakhi Prosad Jajodia vs Commissioner, Corporation of Calcutta

Banerjee, J.—In this rule the Petitioners challenge the order of the Building Tribunal wherein the Tribunal held that the appeal filed u/s 414A of the Calcutta Municipal Act was barred by limitation. The relevant facts for the purpose of our consideration are as follows:

It is alleged that the Petitioners constructed the offending premises without a proper plan. The Commissioner, Corporation of Calcutta, initiated the proceeding u/s 414 of the Calcutta Municipal Act and issued notice on June 11, 1972, fixing July 12, 1972, as a date of hearing of the Demolition Case before the Commissioner. Admittedly the Petitioners got the said notice before the date of hearing, but it is alleged that the time was too short, but in any case the Commissioner passed an order on July 12, 1972, in Demolition Case No. 12D of 1974-75. It must be stated that another proceeding u/s 414 of the Act against the Petitioners was pending which was numbered as 46D of 1973-74 and the two cases were heard together on July 12, 1974. While the Petitioners were informed of the result of case No. 46D of 1973-74, no communication was issued in respect of case No. 12D of 1974-75 and they could come to know that case No. 12D of 1974-75 was also disposed of on July 12,1972, only on December 23,1974, when the appeal against case No. 46D of 1973-74 was being heard by the Building Tribunal, they applied for the certified copy of the order passed on July 12, 1972. On or about January 3, 1975, they filed the appeal being No. 29 of 1974-75. The Tribunal below held, inter alia, that they had no knowledge of the order dated July 12, 1974 and that was duly communicated to them.

We called for the record of the case arid the record was produced by Mr. Sarkar before us. It does not appear to us that after the order was passed in Demolition Case No. 12D of 1974-75 it was ever been sent to the Petitioner. In fact, the original order which the parties are entitled to is in the file itself. It is, however, true that in the order-sheet it is stated that the letter bearing No. CAB 7248 was sought to be sent. Whether it was actually sent or not, it is not to be found from the order-sheet of the case in 12D of 1974-75. In our opinion, therefore, it cannot be said that the final order passed on July 12, 1974, was communicated to the Petitioners.

Mr. Sarkar then argued that assuming that is not so, as the Petitioner came to know of the order, the limitation began to run from the date of knowledge. In our opinion, the contention of Mr. Sarkar cannot be accepted. The appeal lies u/s 414A of the Calcutta Municipal Act from the date of the order, but unless the order is communicated to the Petitioners the period of limitation cannot run. Moreover, u/s 414A the certified copy of the order must be accompanied with the appeal and without communication of the order impugned, the order of demolition cannot be given effect to and the question of taking the copy of the order does not arise. In that view of the matter, in our opinion, the learned Tribunal was wrong in dismissing the appeal on the ground of limitation.

We, therefore, make the rule absolute setting aside the order of the Building Tribunal and hold that the appeal is not barred by limitation and direct the re-hearing of the appeal and dispose of the same in accordance with law.

G.N Ray J.

I agree.