- (1.) This appeal is directed against a judgment and order dated 3rd March, 1994 passed by a learned Single Judge of this Court whereby and where under the writ petition filed by the appellant was dismissed. The petitioner filed a representation before the Calcutta Municipal Corporation alleging inter alia therein that the respondent No. 7 made an unauthorised construction. It Is the case of the respondent No. 7 that he is a tenant of the appellant In the premises in question and a suit for eviction is pending. This contention is denied and disputed by the appellant.
(2.) A bare perusal of the impugned judgment and order would show that the learned Trial Judge passed the impugned order only on the basis that the City Architect who was directed to submit a report could not categorically find out as to whether the construction is of recent origin or 12 years old. It is accepted that in terms of 1951 Act a statute of limitation was provided but such provision does not exist in the 1980 Act. In that view of the matter the question as to whether the age of the structure was 12 years old from the date of passing of the judgment was of no or little consequence. A provision of limitation is granted by a statute and such provision of the Act can alto be taken away by another statute. In order to bring the case within the purview of the 1951 Act, it was obligatory on the part of the concerned respondent to show the C.M.C. cannot take recourse to the provision of Section 401 of the Calcutta Municipal Corporation Act read with the proviso appended to 414 thereof and prior to coming into force of the 1980 Act a period of 12 years had already elapsed. Such being the position la law the impugned judgment cannot be sustained. The learned Trial Judge thus ought to have gone into the merits of the matter and pass appropriate order.
(3.) For the aforementioned reasons the appeal is allowed. The impugned judgment is set aside and the matter is remitted back to the learned Trial Judge for considering the matter afresh and dispose of the same in accordance with law. Liberty to mention for early hearing. There will be no order as to costs. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.;