The Corporation of Calcutta vs Chakowri Lal

Chunder, J.—These are two petitions in revision by the Corporation of Calcutta against an order of the municipal magistrate, refusing to take action u/s 363 of the Calcutta Municipal Act.

The facts, briefly are that according to the Calcutta Corporation, third and fourth stories were sanctioned, of an old existing building in 1947. Certain constructions had taken place, and in 1949 the Calcutta Corporation found, on further examination, that the sanction had been obtained by misrepresentation or fraudulent statement contained in the application, and therefore, the sanction was revoked. The Corporation alleged before the learned magistrate that after the revoked sanction certain works were being done. These are said to have been stayed by the orders of the High Court. Previous to the revocation of the sanction, works in deviation from the sanctioned plan had been done. The learned magistrate came to the conclusion that the revocation was not proper under Rule 65 of sch. XVII of the Calcutta Municipal Act. He did not consider the question of constructions after the revocation or the question of construction in deviation from the sanctioned plan.

A Division Bench of this Court pointed out in the case of Basantakumar Das v. Corporation of Calcutta ILR (1934) Cal. 356, that the magistrate has jurisdiction to go into the question whether the revocation was made, or the extent to which the misrepresentation, or fraudulent statement, if any, could have affected the granting of the permission, the magistrate has a discretion under a. 363 in making an order for demolition, and "therefore, to exercise his discretion properly, he should go into the matter. I fully agree with this view of the law as far as it goes.

In the present case, it is urged by Mr. Basu that the learned magistrate in considering the question of revocation, has not properly understood or appreciated the contentions put forward before him by Mr. Pashupati Ghosh on behalf of the Corporation. I express no opinion on the matter. As on the other grounds the case has to go back to the learned magistrate, when the case is dealt with by him afresh, I do not want to fetter him by expressing any opinion either way.

The decision previously referred to applies where the work was done previous to the revocation, but the Corporation being the authority to revoke a sanction already granted, if the sanction is revoked, so long as the revocation stands and is not set aside by a proper court, any new construction after the revocation is an altogether unauthorised and unsanctioned structure, and it is not such as comes within Rule 65, and the demolition in such a case is to be ordered because the structure is wholly unauthorised and unsanctioned when actually constructed, not because it was authorised and done before the sanction was revoked. This aspect of the case has not been considered by the learned magistrate. Further, even if the revocation is not proper, it does not justify a deviation from the plan sanctioned whether revoked or not. Even if the sanction had not been revoked, the deviation still would have been an act making the party liable to an order for demolition of the portions which were not in accordance with the sanctioned plan. Therefore, the learned magistrate even if he be of opinion that the revocation of the sanction was not proper, must enter into the question of deviation from the revoked plan. In the present case, the learned magistrate did not do so.

For the reasons pointed out, it is necessary, therefore, to set aside the order of the learned magistrate and remand the cases to him for further hearing and decision in the light of this judgment, according to law.

It must not be taken that I have expressed any opinion on facts as to either deviation or new construction or propriety or impropriety of revoking the sanction.

The learned magistrate, pending the hearing of the cases, may continue the injunction.

The Rules are made absolute accordingly.