Authored By : L.H. Jenkins, Henry Reynell Holled Coxe

L.H. Jenkins, C.J.

1. This case comes before us by way of second appeal, andthe suit out of which it arises is one brought by a house-owner within the townand suburbs of Calcutta against the Municipal Corporation to restrain theCorporation in effect from proceeding under a notice given under sec. 341 ofthe Calcutta Municipal Act of 1899. The facts are very briefly these. The allegedprojection in respect of which an action is said to have been taken undersec.341 is an integral part of a house and for the Corporation it is said thatthis projection is over a public street. The Plaintiff maintains that, whetherthe land which this projection overhangs is or is not at the present time apublic street, at the time when the projection came into being and aconsiderable time afterwards, it was his own private land. He further maintainsthat this projection is not such structure as comes within the operation ofsec. 341. The Munsif decided both points in the Plaintiffs favour, and grantedthe relief sought, but on appeal the District Judge who viewed the premisescame to a different conclusion, though he says his visit to the spot satisfiedhim that the Corporation was somewhat unreasonable. In the view I take of thefacts of the case, the particular projection of which complaint is made cannot,on the facts found, be said to be a fixture attached to a building, so as toform a part of the building, and therefore, it does not, in my opinion comewithin sec. 341 of the Act, and on this ground, without negative the othercontention of the Plaintiff, I think the Plaintiff is entitled to succeed. Itis true that an objection has been urged before us that the suit ismisconceived in so far as it was brought against the Corporation, and it wascontended that it should have been brought against the General Committee. Thatpoint is not noticed by either of the lower Courts, and it is not a view to whichI am disposed to give effect. The proper decree in the circumstances appears tome to be that we should reverse the decree of the lower Appellate Court andgrant an injunction restraining the Corporation from taking any proceedingsunder sec. 341 and under the order of the Magistrate passed on the 4th December1908.

2. The Defendant must pay the costs of the Plaintiff in allthe Courts including the costs of this appeal.

Henry Reynell Holled Coxe, J.

I agree.

.

Barada Prasanno Roy Chowdhury vs. Corporation of Calcutta (25.04.1911 - CALHC)