(1.)This Rule was obtained by the Corporation of Calcutta. It is directed against the appellate order of the Building Tribunal passed in an appeal under Section 414-A of the Calcutta Municipal Act, 1951.
(2.)The opposite party No. 2 as proprietor of Sree Printers & Binders and as the Managing Director of Esscbe Printers Pvt. Ltd. is a monthly tenant of a structure in the ground floor of premises No. 42, Dharamtolla Street, Calcutta, since April, 1955. Sometime in the year 1960, by two letters dated 25-8-1960 and 3-9-1960 complaint was made by the owner as well as some cotenants of the said premises, to the City Architect and the Commissioner of the Corporation of Calcutta respectively, that the said opposite party No. 2 without any permission covered the open space with corrugated sheets and constructed a room on the corridor space, thus created an unauthorized structure. On receipt of the said complaint, the site was inspected. Two unauthorized sheds of C.I. Sheets in the said space were detected. The said unauthorized sheds infringed Rules 32 and 33 of Schedule XVI of Calcutta Municipal Act, 1951. Thereupon, on 30th July 1962, a notice under Section. 414(1) of the Calcutta Municipal Act, 1951. (hereinafter referred to as the Act) was served upon the said opposite party No. 2. On receipt of the said notice, the opposite party No. 2 on 4th August, 1962, addressed a letter to the City Architect of the Corporation of Calcutta, wherein he denied any construction, addition and alterations and, contended that the existing structures were more than 12 years old. Thereafter, on the 15th of May, 1963, the Commissioner passed an order of demolition under Section. 414(3) of the Act after duly intimating the said opposite party No. 2 the date of hearing which was fixed on 15th May, 1963. The opposite party No. 2, however, did not appear before the Commissioner at the date of the hearing of the demolition case. Immediately after the said order of demolition was passed, the said opposite party No. 2 by his letter dated 23rd May, 1963, asked the Commissioner, Calcutta Corporation for rehearing of the case, and stay of the implementation of the order that passed on 15th of May 1963. The Commissioner rejected the prayer for review. Thereupon, a Lawyer's notice purported to be under Section 80 of the Code of Civil Procedure was served upon the Commissioner and the Special Officer (Building), Corporation of Calcutta, by the opposite party No. 2 expressing his intention to file a suit for setting aside order of the Commissioner and for other reliefs. A reply was sent thereto intimating that the Commissioner's order should not be stayed unless an injunction was obtained from a Civil Court. Thereafter, on the 17th of December, 1963, the opposite party No. 2 again applied to the Commissioner for review of his order passed on 15th May, 1963. On 4th of April, 1960(1964?) the Commissioner declined to grant review and by a letter dt. 16th of March, 1963 (1965 ?) addressed to the opposite party No. 2 asked him to carry out the order of demolition. By Amending Act XVIII of 1964, Section 414-A was brought into force on the 1st April, 1965. The right of appeal was given under that section against the order of the Commissioner passed under sub-section (3) of Section 414 within the 30 days from the date of such order. On 16th of March, 1965, notice was given to the opposite party No. 2 to carry out the demolition order dated 15th of May, 1963. On the 20th of June, 1965, the opposite party No. 2 again applied for the third time for the review of the demolition case. On 21st January, 1966, the Commissioner rejected the opposite party No. 2's said application after hearing the parties. Thereafter on the 19th February, 1966, the opposite party No. 2 filed an appeal before the Building Tribunal under Section. 414-A of the Act against the order dated 21-1-1996 passed by the Commissioner by which the opposite party No. 2's application for review had been rejected. The said appeal was filed against the Corporation of Calcutta and the Commissioner was not made a party. On 13th April, 1966 the Building Tribunal allowed the opposite party No. 2's appeal upon the findings that the sheds in question were erected more than 12 years before the issue of notice in sub-section 414, clause (4) would be attracted. Therefore, no action could be taken under that section in respect of the sheds and as a result, the demolition case against the opposite party No. 2 was liable to be dropped.
(3.)Being aggrieved against the said appellate order of the Building Tribunal, the Corporation of Calcutta moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.