Subhasini Nandi vs Corporation of Calcutta and Another

Chakravartti, C.J.—We do not consider it necessary to call upon the respondents in this appeal. The learned Counsel for the appellant has said all that he wished to say and the way in which he said it makes it possible for us to dispose of the appeal straightaway. It appears that the appellant, Subhasini Nandi, is the owner of three premises on the southern part of the city, numbered respectively 56, 57 and 42. It is the common case of all the parties that she carried out certain additions and alterations in respect of those premises without even submitting any plan to the Corporation of Calcutta, far less obtaining any sanction. When the constructions were detected, the Corporation decided to take appropriate legal proceedings and such proceedings were, in fact, commenced on the 23rd of September, 1949, by means of an application before a Magistrate u/s 363 of the Calcutta Municipal Act of 1923, which was the statute then in force. The proceedings thus commenced terminated on the 26th of June, 1952, when what is called a demolition order was made. The appellant thereupon moved this Court under Article 226 of the Constitution of India and obtained a Rule. At the final hearing of the Rule, it was discharged.

The first point taken by the learned Counsel on behalf of the appellant was that although no plan had been submitted to the Corporation, nor any sanction obtained before the impugned constructions had been commenced, there had subsequently been an amalgamation of the three premises into one which had rendered the constructions inoffensive. What was meant was that if the three premises were taken as one, no building rule would be found to have been infringed by the constructions which formed the subject-matter of the proceedings before the Magistrate. It appears to me that the contention is wholly fallacious. The fact which attracted to the appellant a liability to have the additions and alterations demolished was not that they infringed any building rules, although they might have done so, but that they had been commenced, undertaken and completed without obtaining a prior sanction from the Corporation. If the constructions were unauthorised and bad at the time they were commenced on account of the want of a prior sanction, no subsequent amalgamation of the three premises could remove the initial illegality. The constructions still remained constructions which had been commenced and completed without obtaining any sanction from the Corporation which was sufficient to condemn them as unauthorised. As I pointed out in the course of the argument, if a person were to purchase a plot of land within the municipal limits of Calcutta and erect thereon a structure in strict compliance with every building rule but he did so without obtaining any sanction from the Corporation, the want of such sanction would itself be sufficient for action to be taken against the construction even though it might not offend against any of the building rules. This appears to have been the view taken by the learned trial Judge and, in my opinion, it was the only possible view that could be taken.

The learned Counsel for the appellant urged before us a second point which was a pure point of law, unconnected in any way with the merits of the case. He contended that during the pendency of the procedings before the Magistrate, the Calcutta Municipal Act, 1951, came into force on the 1st of May, 1952, the Act of 1923, being repealed, and he contended that the effect of the new Act replacing section 363 of the old Act by section 414, was that the Magistrate could no longer continue the proceedings before us, but that the only authority which could thereafter deal with the alleged unauthorised constructions was the Commissioner appointed under the new Act. It was contended broadly that section 414 of the new Act was a procedural provision and if it was so, it had to be construed as retrospective in operation. In aid of that contention reference was made to an unreported decision of G.K. Mitter, J., in Suit No. 4847 of 1952--Noorjahan v. Jadoddlal Bysack, (1) (decided on the 31st August, 1954).

In my opinion, the second contention of the learned Counsel is equally fallacious. It is quite true that section 414 makes a change as respects the forum of proceedings for the purpose of having orders for the demolition of unauthorised constructions. Whereas u/s 363 of the old Act the Corporation could only decide to take steps against offending constructions, but could take an active step only by making an application to a Magistrate, u/s 414 of the new Act the Commissioner himself may require the owner to demolish the offending constructions and on his failure to do so, direct demolition with the approval of the. Standing Building Committee. It would also appear that the new section applies to old as well as new buildings. I find it quite impossible to regard section 414 of the new Act as incorporating a merely procedural provision, but, to my mind, a complete answer to the appellant''s contention is furnished by clause (e) of section 8 of the Bengal General Clauses Act It is quite true that section 363 of the Act of 1923, and indeed the whole of that Act was repealed by section 2 of the new Act, but section 8(e) of the Bengal General Clauses Act provides that where any Bengal Act repeals any enactment, then unless a different intention appears, the repeal shall not--"(e) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed." Applying that section to the facts of the present case, it is admitted that the constructions were commenced and completed without any sanction obtained from the Corporation. The liability to suffer a demolition order, therefore, arose as soon as the constructions were made. A legal proceeding was also commenced when the old Act was in force. That being so, the position was that although during the pendency of the proceedings the old Act was repealed and replaced by a new one, the appellant''s liability to suffer a demolition order which had arisen under the earlier Act remained unaffected in spite of its repeal and equally unaffected was the legal proceeding commenced while the old Act was in force. If I may proceed a little further, under the express terms of the section, the legal proceeding could legally be continued and the penalty prescribed by the old Act could also be imposed as in fact was done by the Magistrate in the present case. I am entirely unable to see how in the face of section 8(e) of the Bengal General Clauses Act, it could possibly be contended that the moment the new Act came into force, the proceeding commenced under the earlier Act automatically lapsed and that if the Corporation was minded still to proceed against the appellant, it could only do so through the agency of the Commissioner, who could, if he so desired, take action u/s 414 of the new Act. It appears to me quite immaterial that the new Act itself does not contain saving clause in respect of the proceedings already commenced under its predecessor. That duty is done in respect of all repealed Acts and proceedings commenced thereunder by section 8(e) of the Bengal General Clauses Act.

The decision referred to has, to my mind, no bearing whatsoever on the present case. It is true that section 414 was there held to be retrospective in operation, but it was so held in terms of clause (c) of section 8 of the Bengal General Clauses Act What the learned Judge held was that if a particular building had been constructed without any sanction of the Corporation and was therefore an unauthorised structure, it would be in peril of demolition by the Corporation for the space of twelve years under the provisions of the new Act, although the period under the earlier Act was only five years. There was no question in that case of any proceeding commenced under the earlier Act or the validity of the continuance of such proceedings. Since the new Act says that offending constructions can be proceeded against at any time within twelve years, it necessarily follows that there may be certain unauthorised constructions which had been completed more than seven years before the passing of the new Act or had been in existence for more than five years since their constructions, while the old Act was in force. I am unable to see what bearing such construction of sub-section (4) can have on the point we have to consider in the present case. That point, as I have already stated, is whether the proceedings for demolition, validly commenced under the Act of 1923, could be continued and completed by the Magistrate u/s 363 of the Act of 1923, although before the termination of the proceedings, the new Act might have come into force. The point, as I have also pointed out, is completely answered by section 8(e) of the Bengal General Clauses Act.

Both the grounds urged by the learned Counsel therefore fail. The appeal is accordingly dismissed with costs. The interim order stands vacated automatically.

Lahiri, J.

I agree