K.M.Yusuf, J. - (1.) This bunch of 21 writ applications is taken up for hearing analogously as they deal with two important questions : whether sub-section (8) of section 400 of the Calcutta Municipal Corporation Act, 1980 is ultra vires the Constitution of India and particularly violative of articles 14, 21 and 300A of the Constitution ? And whether section 400(8) of the Act is violative of sections 29 and 33 of the said Act?
(2.) Mr. Bankim Dutt, the learned Counsel appearing for some of the petitioners, has advanced strenous arguments to bring home his contention that section 400(8) of the Calcutta Municipal Corporation Act is ultra vires of Constitution as well as of certain sections of the Calcutta Municipal Corporation Act, 1980. He took the Court through various sections of the Calcutta Municipal Corporation Act, 1980 beginning with section 2(5) which defines "building". The building was defined in section 3 (7) of the Calcutta Municipal Act, 1923 and according to the submission of Mr. Dutt the definition of building is substantially the same as in section 5(6) of the Calcutta Municipal Act, 1951. Section 2(32) of the C.M.C. Act, 1980 defines "a dwelling house" as a masonry building constructed, used or adopted to be used wholly or principally for human habitation. A similar definition of dwelling house was given in section 5 (28) of the Calcutta Municipal Act, 1951. The Calcutta Municipal Act, 1923 did not define dwelling house but in section 2(23) of the said Act domestic house includes a dwelling house.
(3.) Thereafter Mr. Dutt passed on to Chapter II of the C.M.C. Act, 1980 wherein he pointed out to section 3 of the Act which 1ays down different Municipal authorities, i.e. (a) the Corporation; (b) the Mayor-in-Council ; and (c) the Mayor; and then to section 4 which provides for the establishment of a Corporation charged with the Municipal Government of Calcutta. Section 5 of the said Act lays down the Constitution of the Corporation and section 8 lays down the Constitution of the Mayor-in-Council and the Inner of transactions of business therein. Then on to Chapter IV of the Act wherein section 29 lays down the functions of the Corporation with a special reference to clause (k) which includes the control of building operations and securing or removal of dangerous buildings and places. According to Mr. Dutt section 33 of the said Act lays down the executive power of the Corporation to be exercised by Mayor-in-Council and such powers are limited to the executive powers of the Corporation which should be exercised subject to the provisions of the said Act and the Rules and Regulations thereunder. To emphasis on the word 'executive' he referred to Articles 50 and 166 of the Constitution as well as Earl Jowitt's Dictionary of English Law (1950) and Webster's New 20th Century Dictionary. He submitted that the authority concerned is given a right to determine question affecting the rights of the parties, the function is judicial in the case of Judiciary and quasi-judicial in the case of Administrative authority. He further referred section 39 which defines power and function of the Municipal Commissioner and its sub-section (b) gives power to the Commissioner to assign the duties and to supervise and control acts and proceedings, of all officers and employees of the Corporation, subject to the supervision and control of the Mayor. Section 48 of the Act provides for delegation of powers by the Corporation to the Mayor-in-Council and delegation of the power of the Mayor-in-Council to the Mayor or the Commissioner.;