- (1.) THESE appeals arise out of as many suits for a declaration that the notices, issued to the several plaintiffs under sec. 354 (1) of the Calcutta Municipal Act, 1951, by the District Engineer II, on behalf of the Corporation of Calcutta, were invalid and for a permanent injunction, restraining the Corporation of Calcutta from giving effect to the said notices. The suits were brought by the present plaintiffs, who claimed to be tenants of shop rooms with certain planks, affixed to the same, at premises No. 12, Upper Circular Road. In the suits, the sole defendant was the Corporation of Calcutta. A preliminary objection was taken by the defendant to the maintainability of the suits on the ground that they were bad for defect of parties, as, according to its submission, the Commissioner, Corporation of Calcutta, was a necessary party to the suits but he had not been impleaded therein.
(2.) RELIANCE was placed in support of this preliminary objection on certain observations, contained in the decision of this Court in (1) Shivadhar Sukla v. Corporation of Calcutta and others, 64 C. W. N. 60 (vide pp. 65-6), seeming to suggest that the Commissioner was a necessary party to every suit against the Corporation. The observations in question appear to have been based upon a reading of sec. 28 of the above Act, under which all executive power, so far as municipal administration of this city is concerned, is vested in the Commissioner.
(3.) THE learned trial Judge was not very much inclined to accept the said observations in their apparently wide terms but he felt,-and rightly so,- that he was bound by the authority of the said observations, as they were contained in a decision of this Court. The learned trial Judge, however, sought to supplement the said view by adding that the power under sec. 354 (1) of the Calcutta Municipal Act, 1951, though it was delegated under sec. 30 of the above Act to the Commissioner and the Commissioner was really acting as the delegate or agent of the Corporation in the matter of such power, had a special consequence in the instant case as the Commissioner's decision in exercise of such power was, under the terms of the said delegation, final, and that, according to the learned trial Judge, made it necessary for a party, seeking to challenge his (Commissioner's)order in the matter, to impaled the Commissioner in the suit.;