S.B. Sinha, J. - (1.) AN interesting question of law with regard to the power of Calcutta Municipal Corporation to recover costs in purported exercise of its power conferred upon it under Sec. 401(5) of the Calcutta Municipal Corporation Act, 1980 (hereinafter for the sake of brevity referred to as 'the said Act') is in question in this application. The Petitioner is the owner of premises No. 61/F, Topsia Road, Calcutta. Allegedly he made some unauthorised constructions, as a result whereof on and from May 27, 1995 guards were posted by the Respondents to see the activities of construction, if any, being carried on in the said premises.
(2.) THE Learned Counsel for the Petitioner has raised two contentions in support of this application. It is firstly contended that although a power had been conferred upon the Respondents Corporation to post guards, they cannot continue to do the same for an indefinite period keeping in view an undertaking given by the Petitioner as far back as in June, 1995 that he would not raise any construction whatsoever. It was next contended that in any event as the Schedule appended to the said Act does not envisage levy of penalty for alleged violation of Sec. 401 of the said Act, no penalty can be imposed. The Learned Counsel for the Respondents, however, submits that in terms of Sec. 131(3) of the said Act, budget estimate is required to state the rates at which various taxes, surcharges, cesses and fees shall be levied by the Corporation in the year next following. According to the Learned Counsel, although Sec. 602 of the said Act confers power upon the Respondents to make regulation, non -framing thereof does not disentitle the Corporation to levy penalty by way of surcharges. In this connection, my attention has been drawn to a Circular letter being No. 1 of 1995 -96 dated April 3, 1995. In support of his aforementioned contention, the Learned Counsel has relied upon a decision of a Division Bench of this Court in Corporation of Calcutta v/s. Sambhu Das Pyne, 1985(1) C.H.N. 195.
(3.) SEC . 131(3) is an enabling provision. The said provision does not empower the Corporation to levy any penalty. A substantive provision is required to be made for levy of penalty in the said Act itself and in absence of such a provision, no penalty can be imposed. Sec. 610 of the said Act provides for imposition of fine for certain offences. The said provision reads thus: 610. Punishment for certain offences - whoever - (a) Contravenes any provision of any of the sections, Sub -sections, clauses or proviso or any other provision, of this Act mentioned in Column 1 of Schedule VI, or (b) fails to comply with any order or direction lawfully given to him or any requisition lawfully made to him under any such section, Sub -section, clause or proviso or other provision, shall be punishable - (i) with fine which may extend to the amount, or with imprisonment for a term which may extend to the period, specified in that behalf in column 3 of the said Schedule or with both, and (ii) in the case of a continuing contravention or failure, with an additional fine which may extend to the amount specified in Column 4 of the said Schedule for every day during which such contravention or failure continues after conviction for the first such contravention or failure. The Sixth Schedule appended to the said Act provides for levy of penalty for violation of any provisions but Sec. 401 of the said Act does not figure therein and thus, no penalty can be imposed in terms thereof.;