Corporation Of Calcutta v. Sirajuddin And Other Opposite Parties.

The Judgment of the Court was delivered by

Chakravartti, C.J:— This is a Reference under Ch. VII, R. 5 of the Appellate Side Rules made by Mitter and Guha Ray, JJ., in a criminal revision case, arising out of certain proceedings instituted by the Corporation of Calcutta under Section 364(1) of the Calcutta Municipal Act, 1923. The circumstances in which the Reference came to be made were as follows:

2. Opposite party No. 1, Sk. Sirajuddin, is the owner of premises Nos. 70 and 71, Phears Lane Calcutta. The remaining opposite parties are only ten ants or occupants and therefore, need not be considered further. The premises are bounded on one side by Phears Lane and on another by a road which has been called the Corporation Road. Both of them are public roads.

3. It appears that on the 17th of January, 1947, the Corporation detected certain unauthorised projections on the northern side of the building and instituted proceedings under Section 363(1) of the Calcutta Municipal Act, 1923. Those proceedings came to an end on the 12th of July, 1949, when the learned Magistrate held that the projections complained of did not violate any of the Building Rules and therefore, in respect of them, no order for demolition would be made. The projections then complained of were a room and a front veranda in the fourth storey made of masonry work and a projected veranda on the second, third and fourth storeys on the north over a common passage.

4. On the 17th of September, 1951, two officers of the Corporation again inspected the premises and thought that there were certain unauthorised encroachments built without sanction. The encroachments concerned were, (1) projecting verandas at first, second, third and fourth floor levels over Phears Lane; (2) a cornice at roof level; (3) projecting verandas at the first, second and third flood levels; and (4) a sloping roof at roof level over the Corporation Road on the north.

5. As, according to the Corporation, those encroachments had been made without obtaining any sanction, a notice under Section 299(1) of the Calcutta Municipal Corporation Act, 1923, was served oh the owner on the 22nd of September, 1951, requiring him to remove the encroachments within certain period. As opposite party No. 1 did not comply with the notice, the matter came up to be considered by the Administrative Officer of the Corporation of Calcutta, on the 4th of March, 1952, when an order was made to the effect that if opposite party No. 1 paid encroachment fees and wet work charges at double the usual rate within a month, the case would be dropped, but if he did not pay, proceedings before a Magistrate would be instituted. No payment was made by opposite party No. 1. Thereafter, on the 2nd of September, 1953, the Corporation instituted the proceedings out of which the present Reference has arisen by an application made before one of the Municipal Magistrates of Calcutta under Section 364(1) of the Calcutta Municipal Act.

6. The learned Magistrate disposed of the case by a Judgment delivered on the 24th of April, 1954. He held that no order for demolition could be made in respect of the projections on the Corporation Road, inasmuch as the Corporation had previously proceeded against the owner of the building in respect of the very same projections, but had been unable to obtain an order. Nor, the learned Magistrate held further, could an order be made in respect of the projections over Phears Lane, inasmuch as opposite party No. 1 had proved that they had been constructed more than five years before the date of the notice issued under S. 299(1) of the Act. There remained the cornice at roof level and the sloping roof over the projections on the north. With respect to them, the learned Magistrate held that opposite party No. 1 had not succeeded in proving that they too had been constructed more than five years before the issue of the notice under S. 299(1) of the Act. They were unauthorised constructions, built without sanction, and therefore the Corporation had a right to proceed against opposite party No. 1 in respect of them. The learned Magistrate, however, in the exercise of his discretion, refused to make a demolition order, but directed instead that those constructions would be allowed to stand on payment of encroachment fees and wet-work charges to be assessed by the Corporation within the 31st of March, 1954. If the fees and charges, so directed to be paid, were not paid by the date mentioned, the Corporation would be at liberty to demolish the encroachments by the 31st of July, 1954, at the cost of the opposite party.

7. Against that order of the learned Magistrate, the Corporation of Calcutta, moved this Court in its revisional jurisdiction and obtained a Rule. The Rule came to be heard before Mitter and Guha Ray, JJ. The first ground taken on behalf of the Corporation was that the previous failure to obtain a demolition order in respect of the projections on the Corporation Road in a proceeding instituted under S. 363(1) of the Act could be no bar to the present proceedings under 364(1), although the projections concerned might be identical. It was next contended that in holding that the projecting verandas, encroaching upon Phears Lane, being more than five years old, proceedings with respect to those encroachments were not maintainable, the learned Magistrate had been in error. Objection was also taken to the order made by the Magistrate in respect of the cornice and the sloping roof.

8. The Division Bench agreed with the learned Magistrate that opposite party No. 1 could not be proceeded against twice in respect of the same encroachments and that the Corporation having failed in the previous proceedings under S. 363(1) with respect to the encroachments on the Corporation Road, it could not maintain the present proceedings in respect of the same encroachments. With regard to the encroachment of Phears Lane, the Division Bench agreed with the learned Magistrate's finding, of fact that the opposite party No. 1 had proved that the encroachments had been constructed more than five years before the date of the institution of the proceedings. They were also inclined to hold that inasmuch as more than five years from the date of the construction of the encroachments had elapsed before the present proceedings were instituted, the proceedings were time-barred, but were confronted with two decided cases. In support of his contention that with respect to proceedings instituted under Section 364(1) of the Calcutta Municipal Act, 1923, the starting point of limitation would not be the date of the impugned constructions but would be the date of the expiry of the period mentioned in the notice issued under S. 299(1) or any other provision of the Act, the learned Advocate for the Corporation relied upon the decision of a Division Bench of this Court in the case of Jatindra Nath Barat v. Corporation of Calcutta, 35 Cal WN 397 : (AIR 1931 Cal 433) (A), and an unreported decision, also of a Division Bench, in the case of Jagneswar Roy v. Corporation of Calcutta, Criminal Revn. No. 879 of 1954, decided on the 9th of February, 1955 (Cal) (B). The second case merely followed the first. In the first case it was held that the provision's of S. 363(2) were to be applied to the institution of proceedings under S. 364(1) mutatis mutandis in manner that for the expression ‘any work which has been done’, occurring in S. 363(2), the words, ‘any noncompliance with a notice which expired’, were to be substituted. The effect of such substitution obviously would be that the starting point of limitation would not be the date of the construction, but would be the date of the expiry of the notice issued under S. 299(1) or any other provision of the Act. The learned Judges of the Division Bench found themselves unable to agree with that view. They thought that there could be no broad rule that in the case of every type of proceeding contemplated respectively in the several clauses of S. 364(1), the starting point of limitation for proceedings under that section would be the date of the expiry of the notice. According to them all the constructions contemplated by the several clauses of S. 364(1) were not of the same type, but they were of two different types. Some of them were illegal from the very beginning and in the case of such constructions, the Division Bench thought that the starting point of limitation should be the date of the constructions. There were certain other constructions contemplated by some of the clauses of S. 364(1) which were not constructions illegal at the beginning, but which would become illegal upon non-compliance with a notice, requiring the owner either to remove them or take some order with them. Indeed, by some of the clauses of S. 364(1), constructions of both types were contemplated. As the learned Judges of the Division Bench thought that the starting point of limitation would be different, according as the construction concerned was illegal at the beginning or it was a construction which would become illegal upon non-compliance with a notice, but: a contrary view had been taken in two previous decisions by Division Benches, the question could be settled only by a Full Bench. Accordingly, they made the present Reference and as regards the question referred, observed as follows:—

“The point for decision of the Full Bench will be whether on a correct construction of S. 364(1), limitation in this case will run from the expiry of the period mentioned in the notice or from the date of construction of the structures in question.”

9. When the Reference came up for hearing before us, we thought that the question had been framed in too broad a form and required to be re-framed. Accordingly, we split the question into two and re-framed it in the following terms:—

(1) “Whether under Section 364(2) of the Calcutta Municipal Act, 1923, the starting point of the period of limitation for proceedings to be instituted under S. 364(1) is the expiry of the period of the notice in all the cases mentioned in the several clauses of the sub-section, particularly in the case mentioned in cl. (1) or whether it is the completion of the impugned work in inter alia, that case.

(2) “Whether the cases of 35 Cal WN 397 : (AIR 1931 Cal 433) (A) and Criminal Revn. No. 879 of 1954, decided on the 9th February, 1955 (Cal) (B) (unreported) were rightly decided.”

10. I have had the advantage of reading in advance the Judgments prepared by my learned brothers Das Gupta, Sarkar and Guha Ray, JJ. I agree that the contemplation of S. 364(2) is that, in applying the provisions of S. 363(2) to proceedings instituted under S. 364(1), some change may be necessary. I do not, however, agree, as seems to have been thought by Sarkar, J., if I have understood him correctly, that the contemplation of S. 364(2) is that a change would be necessary in every case. I think the view taken by Das Gupta and Guha Ray, JJ., whose Judgments I have had the privilege to read, that the starting point of limitation would be the date of the construction or the date of the expiry of the period mentioned in the notice, according as the construction was illegal from the beginning or as it became illegal upon non-compliance with the notice served, is the correct view. When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made. If a construction coming within any of the clauses of S. 364(1) is illegal from the beginning, S. 363(2) may be applied, as it is, to proceedings for its demolition without any difficulty and no change in the terms of the section is called for or would be warranted. It might seem at first sight that S. 363 is concerned only with unauthorised constructions and S. 364 with constructions which are not unauthorised, but in respect of which the Corporation may require some order to be taken. The very exhaustive analysis which my learned brothers Das Gupta and Guha Ray have made of the various clauses of S. 364(1) and the constructions contemplated thereby, has convinced me that there is no broad division of constructions between S. 363 and S. 364; confining the former to unauthorised constructions and the latter to constructions which are not unauthorised. It also seems to me that the mere fact that a notice has to be given in certain cases does not by itself indicate an intention of the Legislature that limitation for any proceedings which the Corporation might institute would begin to run only after the period mentioned in the notice had expired. The provisions of S. 365 may with advantage be referred to in this connection. That section authorises the Corporation to serve a notice when the erection of a new building, or any other work referred to in S. 363, has been commenced, or is being carried on unlawfully and the notice may require the person carrying on such erection or other unlawful work to stop the same. Unlawful construction or unlawful continuation of the construction of buildings is covered by cls. (b) and (c) of S. 363(1), but there can be no doubt that, with respect to any proceedings that the Corporation may institute regarding such constructions, the starting point of limitation would be their date and not the date of the; expiry of the notice. There is, therefore, no implication inherent in the provision for the service of a notice that the period of limitation will not commence to run till after the expiry of the period mentioned therein. It has been said that S. 363 is limited to new buildings. So it is. But the expression ‘new building’ in the Calcutta Municipal Act does not bear the popular meaning of a building freshly constructed, but means and includes, according to the definition given in S. 3(46), any building erected or partially rebuilt or converted into a masonry building or converted into a place for human habitation after the commencement of the Act of 1923. The position with which the Corporation may find itself confronted in the case of the various breaches of or non-compliance with its Rules, as contemplated by S. 364(1) may also be found to exist in cases to which S. 363(1) applies if the violations are old. I find no reason to construe S. 364(1) in a way which will give the Corporation liberty to extend the period of limitation at its will merely by interposing a notice under that section, although the construction may be one which is illegal from the beginning and therefore, a construction to which S. 363(1) would apply with the consequent effect on the limitation to institute proceedings in regard thereto. Since the reasons for the view taken by Das Gupta, J., and Guha Ray, J., have been given by them in their respective Judgments, which I respectfully accept, it is not necessary for me to give any further reasons on my own account. I agree with my learned brothers that the answers to the questions, as re-framed by us, should be as follows:—

Question 1—

Part (1): No.

Part (2): Not in all cases.

Question 2—

Not in so far as it was held that the starting point of limitation for proceedings under Section 364(1) of the Calcutta Municipal Act, 1923, would in all cases be the date of the expiry of the period mentioned in the notice not complied with.

11. To the above answers we would add a corollary to the following effect:—

The starting point of limitation under S. 363(2), in its application mutatis mutandis to proceedings instituted under S. 364(1), would be

(i) where the work is illegal from the beginning under the Municipal Act in force at the time, the date of the completion of the work and not the date of the expiry of the period mentioned in the notice under S. 299(1);

(ii) where the work was not so illegal, the date of the expiry of the period mentioned in the notice under S. 299(1).

12. Since the Reference was made in a criminal case, the whole case was referred to a Full Bench and not merely the questions of law. The answer we have given to the question referred disposes of the proceedings instituted by the Corporation, so far as they were directed against the projections over Phears Lane. Those projections were illegal Troth the beginning, having been constructed in violation of R. 2(3) of Sch. XV of the Act, and they were constructed more than five years before the institution of the proceedings under S. 364(1).

13. There remain the projections over the Corporation Road, the cornice at roof level and the sloping roof. As to the projections on the Corporation Road, it is not necessary to consider whether the learned Magistrate's view that no demolition order could be made, because of the Corporation's previous failure to obtain an order in a previous proceeding under S. 363(1), is correct. Without reference to the previous proceedings and the failure of the Corporation to obtain a demolition order, the present proceedings, as directed against the projections on the Corporation Road, may be disposed of on the ground of limitation equally with the proceedings in respect of the projections on Phears Lane. It appears that the projections on the Corporation Road were detected on the 17th of January, 1947. They too were illegal from the beginning. The present proceedings, as I have already stated, were instituted on the 2nd of September, 1953. Even if the constructions had been made on the 17th January, 1947, much more than five years had already elapsed when the Corporation commenced the present proceedings. As respects the projections on the Corporation Road too, the proceedings must, therefore, be held to have been time-barred.

14. There remain the cornice and the sloping roof. The learned Magistrate did not deem it fit to make a demolition order in respect of those constructions, but directed that they would be allowed to stand, if the opposite party paid certain fees and charges. I can see no reason whatsoever to interfere with the learned Magistrate's exercise of his discretion. It may be recalled that when the constructions were first detected, the Administrative Officer himself made an order on the 4th of March, 1952, that if encroachment fees and wet-work charges at double the usual rate were paid, the case would be dropped. The learned Magistrate has made in sub-stance the same order and no ground was made out before us which could persuade us to reverse it.

15. For the reasons given above, I agree that the answers to the question referred to the Full Bench, as re-framed, should be as proposed by my learned brothers, Das Gupta and Guha Ray, the terms of which I have already set out.

16. As regards the whole case, for the reasons I have also given, the Rule must be discharged.

K.C Das Gupta, J.:— On the 2nd September, 1953, the Corporation of Calcutta made an application before the Municipal Magistrate, Calcutta, under Section 364(1) of the Calcutta Municipal Act, 1923, in respect of (1) projecting verandas at 1st, 2nd, 3rd and 4th floor levels over Phears Lane; (2) projecting verandas at 1st, 2nd and 3rd floor level over the Corporation Road; (3) cornice at roof level over the Corporation Road; and (4) a sloped roof at roof level projecting over the Corporation Road. It was alleged that a notice had been served on the owner of the building to which these projections were attached — viz., Premises Nos. 70 and 71, Phears Lane, under Section 299(1) of the Calcutta Municipal Act, 1923, requiring him to remove the same, but had not been complied with. The Corporation prayed for orders on the owner to remove these projections.

17. On behalf of the owner, a written statement was filed praying that the proceedings be quashed. It was said that the proceeding was barred in respect of the alleged projections over the Corporation Road, as the Corporation had earlier applied under S. 363(1) of the Act in respect of the same, and the application had been rejected. It was next contended that the proceeding was barred by the principle of limitation provided in the Calcutta Municipal Act, 1923. The third objection that was raised was that as the Calcutta Municipal Act, 1923, had been repealed by the Calcutta Municipal Act, 1951, the proceeding under Section 364(1) of the Calcutta Municipal Act, 1923, was no longer maintainable.

18. At the hearing before the Magistrate, only the first two points appear to have been pressed. The Magistrate held that the projecting verandas over the Phears Lane, were constructed more than five years before the initiation of the proceedings, and so the present proceeding was barred in respect of them. He also held that the proceeding was not maintainable in respect of the projecting verandas over the Corporation Road, as in the earlier proceeding in respect of the same under S. 363(1), the application of the Corporation had been rejected. As regards the projecting cornice, and the projecting sloped roof, the Magistrate passed the following order: “The cornice at roof level and the sloped roof over the projecting veranda on the 3rd storey on the Corporation Road to the north which are proved to have been constructed without sanction are allowed to stand on payment of encroachment fees and wet-work charges by the opposite party to be assessed by the Corporation within 31st May, 1954, failing which Corporation will demolish the said two encroachments by 31st July, 1954, at the cost of the opposite party.” We understand that the Corporation did not assess encroachment fee and wet-work charges in accordance with the Magistrate's order, and so the owner also could not make any payment in accordance therewith.

19. On the 5th July, 1954, the Corporation moved the Court under S. 439 of the Code of Criminal Procedure, praying that the Magistrate's order be set aside, and an order of demolition of all the projections be made. A rule was issued by this Court calling upon the Municipal Magistrate and the opposite parties, of whom opposite party No. 1 is the owner of the premises and the rest are occupiers, to show cause why the Magistrate's order should not be set aside, and demolition ordered.

20. At the hearing of this rule, the learned Advocate of the Corporation contended, on the authority of 35 Cal WN 397 : (AIR 1931 Cal 433) (A), and Criminal Revn. No. 879 of 1954 (Cal) (B), that the starting point of limitation for the proceeding was the date of expiry of the notice under S. 299(1), and not the date of construction, and so, the Magistrate was wrong in holding that the proceeding was barred by limitation, in respect of the projecting verandas over the Phears Lane.

21. Guha Ray and Mitter, JJ., were of opinion that the view taken in Jatindra Nath Barat v. Corporation of Calcutta (A) and Jagneswar Roy v. Corporation of Calcutta (B), that in all cases under S. 364(1), the starting point of limitation would be the date of expiry of the notice was not correct. They therefore made this reference to a Full Bench.

22. In the referring Judgment, their Lordships say, “the point for decision of the Full Bench will be whether on a correct construction of S. 364(1), limitation in this case will run from the expiry of the period mentioned in the notice or from the date of construction of the structures in question.”

23. When the matter came before the Full Bench, it was thought that it would not be right or proper to restrict the question to be considered by the Full Bench merely to the question of limitation with regard to the facts of the particular case, but that it would be helpful to consider the question as regards all cases under S. 364(1), though cases under the first clause of S. 364(1), under which the instant case has arisen, would require particular attention.

24. The following questions were therefore framed for the consideration of the Full Bench:—

1. Whether under Section 364(2) of the Calcutta Municipal Act, 1923, the starting point of the period of limitation for proceedings to be instituted under S. 364(1) is the expiry of the period of the notice in all the cases mentioned in the several clauses of the sub-section, particularly in the case mentioned in cl. (1) or whether it is the completion of the impugned work in inter alia, that case.

2. Whether the cases of 35 Cal WN 397 : (AIR 1931 Cal 433) (A), and Criminal Revn. No. 879 of 1954, decided on the 9th February, 1955 (Cal) (B), (unreported) were rightly decided.

25. The real question is: What is the effect of the words ‘mutatis mutandis’ in the second sub-section of Section 364 of the Calcutta Municipal Act, 1923? If these words had been absent, the sub-section would have read thus: “The provisions of sub-s. (2) of S. 363 shall apply to the institution of proceedings under the section.” The result would have been that no proceedings under S. 364(1) could be instituted, more than five years after the offending work was constructed. The fact that the words ‘mutatis mutandis’ were used by the Legislature in S. 364(2) makes it clear that the legislature thought that without some change, the above rule of limitation would produce practical difficulties, in some at least of the cases under S. 364(1). Instead of making the change, itself, the Legislature left the task to the Courts. It has authorised the Courts to make necessary changes in the provisions of S. 363(2) before applying them to the proceedings under S. 364(1). The question is: What changes are reasonably necessary?

26. Before we can answer this question, we have to examine the cases that arise under the different clauses of S. 364(1), in order to discover what practical difficulties arise, if the provision of S. 363(2) that no proceedings shall be instituted in respect of work done more than five years before the institution, which for the sake of convenience, I shall refer to as ‘the five years since construction’ rule is applied without modification.

27. Clause (1) deals with verandas, platforms, or similar structure or a fixture, which causes a projection, encroachment, or obstruction over, or on any public street, or any land vested in the Corporation. Section 299(1) of the Act authorises the Corporation to require the owner or occupier of the building to which such offending structure or fixture is attached, to remove or alter the same.

28. If the owner or occupier has not complied with the requirement within the period prescribed in the notice, Cl. (1) of S. 364(1) comes into operation; and the Corporation may apply to a Magistrate for an order of removal or alteration. Under S. 299(1), the authority of the Corporation to take action extends to all offending structures or fixtures, whether erected before or after the commencement of the Act of 1923. At the commencement of the Act of 1923, there were bound to be many such offending structures, or fixtures. Among these, again, there were bound to be many that were constructed five years or more before the commencement of the Act. The Corporation had authority at any time after the Act came into force, to issue a notice under S. 299(1), requiring the removal of these structures or fixtures. But proceedings under S. 364(1) could not be instituted in respect of any structure or fixture, constructed five years or more before the commencement of the Act, if the ‘five years since construction rule’ be applied, though in all cases, where the offending structure was constructed after the commencement of the Act, and in many of the cases where the construction took place before the commencement of the Act — but less than five years before such commencement, there will be no such difficulty, provided the Corporation is reasonably vigilant.

29. In order to understand whether and if so, how far, this obstacle to the institution of proceedings under S. 364(1) of the 1923 Act in respect of of fending structures (using the word to include fixtures also) erected five years, or more before the commencement of that Act, — if the ‘five years since construction’ rule of limitation be applied, will result in any real difficulty in practice in the achievement of the object of these provisions, it is necessary to examine the state of law under the Calcutta Municipal Act, 1899, which continued to be in force be fore the 1923 Act became law. On examination of the 1899 Act, we find that S. 341 of that Act was in almost identical terms with S. 299 of the 1923 Act while S. 450 of that Act was in terms very similar to those of S. 364 of the 1923 Act. Section 341 ran thus:—

“341. (1) When any fixture has, whether before or after the commencement of this Act, been attached to a building so as to form part of the building, and the same causes a projection, encroachment or obstruction over or on any public street or any land vested in the Corporation, the General Committee may, by written notice, require the owner or occupier of the building to remove or alter such fixture.

(2) If the expense of removing or altering any such fixture is paid by the occupier of the buildings, in any case in which the fixture was not erected by himself, he shall be entitled to deduct the expense of removal or alteration from the rent payable by him to the owner of the building.

(3) If the owner or occupier of the building proves that any such fixture was erected before the first day of June, one thousand eight hundred and sixty-three, or that it was erected on or after that day with the consent of any municipal authority duly empowered in that behalf, the Corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the fixture.”

30. Under the law in force between 1899 and the commencement of the Act of 1923, therefore, the Corporation or rather the General Committee of the Corporation had the same powers as now to require the owner or occupier of a building to which a veranda, or platform or other fixture causing a projection, encroachment or obstruction over any public street, or any land vested in the Corporation, has been attached, to remove or alter the same. I have not overlooked the fact that while the 1899 Act mentions only a ‘fixture’ causing projection, encroachment or obstruction, the corresponding section of the 1923 Act mentions instead ‘veranda, platform or other similar structure or fixture’; but in my opinion, this makes no difference, and that a ‘veranda, platform or other similar structure’ also, was a fixture within the meaning of S. 341(1).

31. The position in law therefore was that in respect of all structures — using that word again to include both fixtures and structures — that come within the mischief of S. 299(1) of the 1923 Act, the General Committee could take action under S. 341(1) of the 1899 Act. If the offending structure was not removed or altered within the period prescribed in the notice, then the General Committee could apply to a Magistrate for an order for removal or alteration, in the same manner as the Corporation can do under S. 364(1) of the 1923 Act. This power was given by S. 450 of the 1899 Act, which provides that in any of the cases mentioned in its eight clauses, “the General Committee may apply to a Magistrate and such Magistrate may make an order directing mat the projection, fixture, additions, roof, wall, building, or privy as the case may (a) be demolished by the owner, or altered by him to the satisfaction of the Committee, or (b) be demolished or altered by the Chairman at the expense of the owner.”

32. The third clause of S. 450 is in these words:

“if within the period prescribed in any notice issued under S. 341, sub-s. (1), requiring the removal or alteration of a fixture, the fixture be not duly removed or altered”.

33. It is clear from this that on the assumption that the General Committee of the Corporation under the 1899 Act were reasonably vigilant, they would have had sufficient time and opportunity to take action under S. 341, and under S. 450 of the Act in respect of all offending structures within the meaning of S. 299 of the 1923 Act, that were existing when that Act came into force. This is an assumption that the Courts are entitled to make, especially when considering a question affecting limitation. It therefore appears to me that when the 1923 Act came into force, it was not likely that very many structures coming within the mischief of S. 299, and really requiring action thereunder, had been in existence, except for a very short period, say two or three years, without action having taken under S. 341(1), and under S. 450 of the 1899 Act. There could be very few such structures in existence for five years or more, without necessary action for their removal having been taken under the 1899 Act. I have therefore come to the conclusion that the inability of the Corporation to institute proceedings under S. 364(1), in respect of structures constructed five years or more before the commencement of the 1923 Act, if the ‘five years since construction’ rule of limitation were applied would cause very little difficulty in practice.

34. There might be some cases in which the provisions of S. 299(1) are attracted after the construction of verandahs, platforms or similar structures attached to a building, because of the fact that a street over which the structure causes projection, or obstruction or encroachment became a public street after such construction or the land over which such projection, or obstruction, or encroachment is caused came to be vested in the Corporation, after such construction. Where this happens five years or more after the construction, the application of the ‘five years since construction’ rule of limitation will make it impossible for the Corporation to institute proceedings for their removal or alteration. This may cause real difficulty in practice in some cases — though their number is not likely to be large — even if the Corporation under the 1923 Act, or the General Committee of the Corporation, were as vigilant as could reasonably be expected.

35. The second clause of S. 364(1) is in these words:

“If the owner of any building erected or added to between a street alignment and the building line fails to remove such building or addition when called upon by the Corporation to do so under S. 303, sub-s. (3).”

36. Section 303(3) provides that no person shall erect or add to any building between a street alignment and the building line without first obtaining the permission of the Corporation to do so. There is no provision in sub-s. (3) under which the owner or occupier can be called upon to remove the building erected or added. We find however that per mission can be given under S. 303(3) to a person to erect or add to a building between the street alignment and the building line, and that under sub-s. (4) of the same section, the Corporation, when giving such permission, may require the applicant to execute an agreement in accordance with the proviso to the first sub-section of the section, that is, an agreement binding himself and his successors in interest — (a) not to claim compensation in the event of the Corporation, at any time, thereafter calling upon him or such successor by written notice to re move any building added, or erected in pursuance of such permission or any portion thereof, and to pay the expenses of such removal. The meaning of Cl. (2) of S. 364(1) is therefore reasonably clear. It is

“when any person who has erected or added to a building between a street alignment and the building line, on permission of the Corporation, having executed an agreement as mentioned above, and on being thereafter called upon to remove such building or addition on the strength of the agreement, fails so to remove.”

37. In many cases, five years or more will elapse before the Corporation has reason to call upon the owner to remove such a building or addition. In such cases, the “five years since construction” rule of limitation will cause real difficulty, because however vigilant the Corporation may be, proceedings for removal of such building will be barred.

38. The third clause deals with cases where after an addition has been made to a building, ‘with-in a street alignment’ in pursuance of an agreement, as provided in S. 363(1) proviso, the Corporation requires the owner to remove it, and the owner fails to do so. Clearly, if the Corporation has waited five years, before requiring the owner to remove the added building, the ‘five years since construction’ rule will have the consequence that no proceeding can be instituted under S. 364(1). In those cases, where the Corporation, requires the removal, before the expiry of five years, there will be no such difficulty.

39. The fourth clause covers the case of buildings erected or added, within the street alignment of projected streets, or between the street alignment and the building line of such street, in pursuance of an agreement. In many of these cases, it will happen that five years have elapsed before the Corporation decides to require the removal. In these cases, no proceedings can be instituted, under S. 364(1), if the ‘five years since construction’ rule be applied. In the cases, where the Corporation requires the removal well within five years from the erection or addition, the ‘five years since construction rule’ will not produce any difficulty.

40. Clause (5) deals with buildings which are unfit for human habitation. Under S. 381 of the Act, the Corporation may require the owner or occupier of any building intended for or used as a dwelling house, which appears to be unfit for human habitation, to make alterations to make it fit for habitation, and a Magistrate may on application by the Corporation prohibit its use for human habitation. Under S. 382, the Corporation may when the Magistrate has prohibited such use, require the owner and occupier by written notice, to demolish the building or part thereof. If and when, the owner on being so required, fails to demolish the building, Cl. (5) of S. 364(1) comes into opreation; and the Corporation may apply to a Magistrate for an order of demolition. It is likely to happen in many cases falling under this clause, that the dwelling becomes unfit for human habitation, five years or more after construction. In many other cases, the fact that the house is unfit for human habitation will come to the notice of the Corporation, five years or more after its construction. In these cases, application of the ‘five years since construction rule’ will produce the result that no proceedings for demolition can be instituted at all. In a comparatively lesser number of cases, it will happen that the Corporation will be in a position to institute proceedings within five years from the construction of the offending building.

41. Clause (6) deals with privies or urinals placed in contravention of R. 21, or 22, sub-r. (1) of Sch. XIV. It should be possible to detect such cases without delay, and no difficulty should be experienced in instituting proceedings within five years from construction.

42. Clause (7) deals with cases, where a notice has issued under R. 2, sub-r. (5) of Sch. XVI, requiring the owner or occupier of a building to comply with any condition on which the erection of a projection was permitted, but the condition is not complied with. Sub-rule (3) of the said rule provides that no person shall put up any verandah, balcony, sun shade, weather frame, or the like, to project over a street, without the written permission of the Corporation. Sub-rule (4) provides that subject to sub-rule (1) and Sub-rule (2) of the rule the Corporation may give written permission on such conditions as they think fit and on payment of prescribed fees, to owners, or occupiers of buildings to put up verandahs, balconies, sun shades, weather frames, and the like over such street. Sub-rule (5) provides that if any of the conditions on which permission was given, is broken, the Corporation may require the owner or occupier to comply with such condition. It seems to me that ordinarily, the condition will be that something be done, before or at the time the construction permitted is made. In such cases, if the condition is broken, that should come to the knowledge of the Corporation authorities within a short time after the construction, and the ‘five years since construction’ rule will give the Corporation no difficulty. If the condition is of a negative character, e.g permission is given on condition that some specified thing is not done, the breach may occur, in some cases, within five years, and in other cases, more than five years after, the construction. Under the ‘five years since construction rule’ institution of proceedings will not be possible in the latter class of cases, but will be possible in the former class.

43. Clause (8) deals with the case of ‘a veranda, balcony, sun-shade, weather frame, or the like’ projecting over a street, which has been constructed with the permission of the Corporation in accordance with sub-r. (4) of R. 2, Sch. XVI. Sub-r. (6) of the same rule authorises the Corporation to require — at any time — after permission has been given, to remove the projection. If the owner or occupier fails to remove the projection, cl. (8) of S. 364(1) comes into operation. Here also there will be cases, where the Corporation sees reason to take action under Sub-r. (6) so long after the construction of the projection, that by the time the period fixed in the notice to remove the projection, expires, five years after construction will have expired. There will be other cases, where action under sub-r. (6) is taken in such time that five years will not have expired, before the expiry of the period of notice, so that it will still be possible for the Corporation to institute proceedings for removal of the projection, in spite of the ‘five years since construction’ rule of limitation.

44. Clause (9) deals with buildings, situated within thirty feet from any other building, and having at the commencement of the Act, an external roof or wall, made of any inflammable, material. Under sub-r. (2) of R. 7 of Sch. XVII, the Corporation may, by written notice, require the owner of any such building to remove or alter such roof or wall. Some of the structures that fall within the operation of sub-r. (2) must have been constructed, five years or more before the commencement of the Act. In respect of these, the consequence of the five years since construction rule will undoubtedly be that on the failure of the owner of the offending building to comply with the requirement of the notice, it will not be possible for the Corporation to institute proceedings within five years from the date of the construction of the offending work. Where the offending roof or wall was constructed, less than five years before the commencement of the Act, it should be possible, in most cases, if the Corporation authorities are vigilant, to take action under sub-r. (2) with such expedition that institution of proceedings for removal will be possible, within five years from construction.

45. Clause (10) deals with some cases of buildings which endanger health. Rule 6(1) of Sch. XVIII is in these words—

“Whenever the Corporation consider—

(a) that any building is by reason of its having no plinth or having a plinth of insufficient height, or by reason of the want of proper drainage or ventilation, or by reason of the impracticability of cleansing attended with risk to the health of the occupiers thereof or to the inhabitants of the neighbourhood, or is for any reason likely to endanger the public health, or

(b) that any block of buildings is, for any of the said reasons, or by reason of the manner in which the buildings are crowded together, attended with such risk as aforesaid, they may cause a written notice to be fixed to some conspicuous part of the building or block requiring the owners or occupiers thereof, or, at the option of the Corporation, the owners of the land occupied by such building or block, to execute such works or take such measures as the Corporation may deem necessary for the prevention of such risk.”

46. It seems clear that action under R. 6(1) can be taken, in respect of buildings, whether erected, before or after the commencement of the 1923 Act. In the case of offending structures erected after the commencement of the Act, or less than five years before the commencement of the Act, the Corporation authorities, if they are reasonably vigilant, should be able to take action under sub-r. (1) of R. 6 in Such time, that five years since construction will not have elapsed before the expiry of the period mentioned in the notice.

47. In all such cases, the Corporation should be able to institute proceedings for removal, in time, under the ‘five years since construction’ rule. Where the offending structures were constructed five years or more before the commencement of the Act, the consequence of the application of the ‘five years since construction’ rule will be that no proceedings for their removal can be instituted. This would have been a real difficulty but for the fact that the previous Act — the Calcutta Municipal Act of 1899 — contained exactly similar provisions in respect of these offending structures. Section 446(1) of that Act is in almost identical terms with R. 6, sub-r. (1) of Sch. XVIII of the 1923 Act, except that the authority empowered to take action was the General Committee of the Corporation. Section 450(1) of the 1899 Act, which corresponds to S. 364(1) of the 1923 Act, and to which reference has already been made, dealt in its 6th clause with the case of omission to comply with the notice issued under S. 446. Clause (6) of S. 450(1) is in these words — “if any owner and/or occupier neglect to execute any works or take any measures required by any notice affixed under S. 446, sub-s. (1)” — word for word, the same as cl. (10) of S. 364, except that where the earlier Act says “S. 446(1)”, the later Act uses the word “R. 6, sub-r. (1) of Sch. XVIII”.

48. The position therefore is that any structure coming within the mischief of R. 6, sub-r. (1) of Sch. XVIII, that was constructed before the commencement of the 1923 Act, was equally within the mischief of S. 446(1) of the 1899 Act. If the General Committee of the Corporation, were reasonably vigilant, as it is proper to think they were, they must have instituted proceedings before the Magistrate under S. 450, in respect of all such structures where action was really necessary, except those which were constructed only a short time, say, two or three years before the commencement of the 1923 Act. Among the structures, which come within the mischief of R. 6. sub-r. (1) of Sch. XVIII, of the 1923 Act, there were likely therefore to be very few, which had been constructed five years or more before the commencement of the 1923 Act, but in respect of which action under S. 446 and where necessary, under S. 450(6) of the 1899 Act had not been taken.

49. In respect of cases under cl. (10) of S. 364(1) of the 1923 Act, the application of the ‘five years since construction’ rule would not therefore cause any real difficulty, in actual practice.

50. The above examination of the different classes of cases under the ten clauses of S. 364(1) shows that the application of the ‘five years since construction rule’ embodied in S. 363(2), — without any modification — will not cause any difficulty worth the name in respect of most of the cases under cls. (1), (7) and (10), and no difficulty at all in respect of the cases under cl. (6) but will cause difficulty in practice, in any cases under cls. (2), (3), (4), (5), (8) and (9) and in a few cases under cl. (1) and cl. (7).

51. It is quite clear that it was with a view to remove this difficulty, that the Legislature authorised the Courts to apply to proceedings under S. 364(1), the rule of limitation prescribed in S. 363(2) not as it stands, but mutatis mutandis — i.e, with necessary modification. It is equally clear however that the Legislature has not authorised the Courts to embark on questions of policy and under the guise of modification, to legislate as it thought fit. The substance of the policy of the law as laid down in S. 363(2) must be left unchanged, and only-such changes as are reasonably necessary to give effect to that policy of law should be made. It is undisputed that whatever change the Court decides to make on the strength of the phrase mutatis mutandis, shall be restricted to the starting point of limitation. If it appears however that in some of the cases, no change of the starting point of limitation is reasonably necessary, but such change is necessary in some of the cases, the proper course for the Court is to make the change where necessary, and not to make change where it is not necessary. It is in my opinion a mistake to think that because the Legislature has said generally that the provisions of S. 363(2) shall apply mutatis mutandis to proceedings under S. 364(1), the Court must modify these provisions even in cases where no change is necessary. It will be helpful to bear these principles in mind in deciding what modification in the provisions of S. 363(2) we should make before applying them to proceedings under S. 364(1).

52. On behalf of the Corporation it is urged that one feature which distinguishes proceedings under S. 363(1) from proceedings under S. 364(1) is that the former are all in respect of structures which were made in contravention of provisions of the Act, or rules or bye-laws of the same, or in other words, were unauthorised or illegal constructions, while the latter are all in respect of constructions which at the time it was made did not contra vene the provisions of the Act, or rules, or bye-laws thereunder, or in other words were “not un authorised” constructions. It was this distinction it is argued, which made the Legislature decide that the rule of limitation for proceedings under S. 363(1) would not apply unchanged to proceedings under S. 364(1), but with necessary modifications. It is reasonable, the argument proceeds, therefore to say that as the starting point of limitation for proceedings under S. 363(1) is the date of construction, which is identical with the date of illegality of the construction, the starting point of limitation for proceedings under S. 364(1) should be the expiry of the period of the notice mentioned in the different clauses of S. 364(1), that being the date when the illegality commences. The view that all proceedings under S. 364(1) are in respect of structures which were “not unauthorised” at the time they were made, and the view that the illegality of structures commenced only on the expiry of the notice are closely interlinked though the latter does not necessarily follow from the former. Both the views appear to have been accepted in 35 Cal WN 397 at p. 398 : (AIR 1931 Cal 433 at p. 433) (A) of the Report, Lord Williams, J., observes—

“Chapter XXIII of the Act deals with the demolition, alteration and stopping of unlawful work. Under the provisions of S. 363, the work is unlawful from the beginning, and proceedings must be taken within five years of erection. But under S. 364 the illegality begins only upon the expiry of the notices mentioned therein and proceedings must be taken within five years of such expiry. Section 363(2) therefore is applied to S. 364, mutatis mutandis, namely by substituting for “any work which has been done”, the words any non-compliance with a notice which expired”.

53. With very great respect to the learned Judges, I think that the view that in all cases under S. 364(1), the construction was legal at the time it was made, but illegality commenced only on expiry of the period of a notice which had not been complied with is incorrect. It is quite clear that in many of the cases under S. 364(1) — viz., in the cases under cl. (2), cl. (3), cl. (4), cl. (5), cl. (8) and cl. (9), the construction was legal at the beginning. In the cases under cl. (2), cl. (3), cl. (4) and cl. (8), the construction was ex-hypothesi made, with the permission of the Corporation, and was therefore legal. In the cases under these four clauses — viz., cl. (2), cl. (3), cl. (4) and cl. (8), it is also correct to say that the illegality commenced, only when the notice requiring removal or alteration was not complied with within the period mentioned therein. In cases under cl. (5), the construction was legal at the beginning, for as far as I can find there appears to be nothing in the Calcutta Municipal Act, and the rules or the bye-laws thereunder, prohibiting the construction of buildings that are unfit for human habitation. Besides, we have to remember that it often happens that a building which is not unfit for human habitation at the beginning becomes unfit later on. The construction of buildings that come within the operation of cl. (5) must therefore be held to be legal at the time it was made.

54. The position appears to be the same in the cases under cl. (9). This deals with roofs or walls made of grass, leaves, canvas and other inflammable material that exist at the commencement-of the 1923 Act in buildings situated within thirty feet of other buildings. Whether the construction of these was illegal at the time it was made depends therefore on the state of the law prior to the commencement of the 1923 Act. I find that while the previous-Calcutta Municipal Acts — viz., those of 1863, 1876 and 1888 prohibited the making of external roofs-or walls of grass, leaves or other inflammable material, (by Ss. 142, 211, 224, respectively) the 1899 Act contains no such prohibition — neither in the body of the Act, nor in the rules thereunder. As it appeared surprising that such prohibition, which we find again, in the 1923 Act, should be absent in 1899 Act, I examined the bye-laws made under the 1899 Act to find out whether they contained any such prohibition. But I have not discovered any. As it is wholly unlikely that any external roof or wall made of grass, leaves, or mat and other inflammable material of like nature, that was constructed prior to the commencement of the 1899 Act would last till 1923, we must hold that any roof or wall that comes within the operation of cl. (9), was constructed, when the Act of 1899 was in force. That Act, or its rules or its bye-laws contained no prohibition against any external roof or wall being made of such material. The conclusion that necessarily follows is that such construction was legal when it was made. The illegality in these cases under S. 9 also commenced only on the non-compliance with the notice to remove the roof or wall within the time mentioned in the notice. I agree therefore that in cases under the above clauses — viz., cls. (2), (3), (4), (5), (8) and (9) — the construction of the offending structure was legal when made, and the illegality started, only on non-compliance with a notice to remove or alter the same within the period mentioned therein.

55. There remain for examination the other four clauses — viz., cls. (1), (6) (7) and (10). Clause (1), under which the proceedings which have given-rise to this reference, were instituted, and which probably accounts for the largest number of proceedings under S. 364(1), deals with the cases where, a notice under S. 299(1) requiring the removal of structures or fixtures, has been issued but has not been complied with within the period mentioned in the notice. Section 299(1) is in these words—

“When any veranda, platform or other similar-structure or any fixture attached to a building so as to form part of the building, whether erected before-or after the commencement of this Act, causes a projection, encroachment or obstruction over or on any-public street or any land vested in the Corporation, they may, by written notice, require the owner or occupier of the building to remove or alter such structure or fixture.”

56. While S. 299(2) is of no importance for our present purpose, the provisions of S. 299(3) throw some light on the scheme of the legislation, which may be conveniently observed.

57. Section 299(3) is in these words—

“If the owner or occupier of the building proves that any such structure or fixture was erected before the first day of June, 1863, or that it was erected on or after that day with the consent of any municipal authority duly empowered in that behalf, the Corporation shall, after such structure or fixture has been removed, make reasonable compensation to every person who suffers damage by the removal or alteration thereof.”

58. The first sub-section of S. 299(1) itself makes it clear that action thereunder may be taken in respect of offending structures — using that word to include fixtures and other structures — whether these were constructed before or after the commencement of the 1923 Act. The provisions of the third sub-section of the section show that the Legislature contemplated the possibility of action being taken, in respect of structures constructed, even before the 1st June, 1863, and provided that where the offending structure was shown to have been constructed prior to 1st June of 1863, compensation was payable for damage caused by the removal or alteration, whether or not the construction was lawful or otherwise; but if the structure was constructed on or after the 1st June, 1863, compensation is payable only if it was made “with the consent of any municipal authority duly empowered in that behalf”. It seems clear that if the construction was with such permission, it was not illegal at the time it was made.

59. It will be convenient to consider first the case of structures, constructed before the commencement of the 1923 Act — whether before or after 1863. The earliest Act which deserves mention in this connection is Act II of 1848. Section 10 of that Act provides inter alia that if any person “shall-cause any obstruction to or make any encroachment upon any street in the town of Calcutta, he shall “for every such offence on conviction before a Magistrate forfeit and pay a sum not exceeding fifty rupees”. This Act of 1848 was repealed by Act XII of 1852. Obstructions to or encroachment upon any street was made punishable by cl. (10) of S. 41 of this Act. Clause (18) of the same section made the erection or setting up of any veranda, balcony, sun shade, or other projection of any kind which may overhang and project into the road at any height and to any distance without licence first obtained from the Commissioner under the hand of their surveyor” similarly punishable. Act XII of 1852 was in its turn repealed by Act XIV of 1856. Section 19 of this Act made the erection of any obstruction or encroachment in any public street punishable. Similar provisions making erection of obstruction or encroachment in public street, punishable appear in the three successive Calcutta Municipal Acts — in S. 125 of the 1863 Act, in S. 199 of the 1876 Act an in S. 212 of the 1888 Act. This last named section, it should be noticed, makes the erection of any projection over any public street also punishable.

60. These four Acts — viz., Act XIV of 1856, Act VI of 1863, Act IV of 1876 and Act II of 1888 — contain other provisions as regards encroachment, obstruction, or projections in front of any house, or any street, which deserve mention.

61. Section 33 of the 1856 Act provides that if any ‘projection, encroachment, or obstruction’ be erected or placed against or in front of any building so as to project or encroach upon or obstruct a public street, the Commissioners may require the owner or occupier to remove or alter the same by notice in writing; default is made punishable with fine; the Commissioners are also given the power to remove such ‘projection, encroachment, or obstruction’ at the expense of the owner or occupier in default. Section 34 provides that if any such offending structure has been erected before the passing of the Act, the Commissioners may alter or remove it after giving notice to the occupier; and further provides that if such construction be lawfully made, the Commissioners shall make reasonable compensation. Section 35 provides that the Commissioners may give permission for the cons traction of ‘verandas, balconies, sun shades and the like to project over the street’ upto a certain distance.

62. The 1863 Act has also three sections dealing with this matter — Section 139 empowers the Justices of the Peace constituting the Corporation to remove or alter ‘projections, encroachments, or obstructions’ erected in front of or against any building, after the passing of the Act; Section 140 empowers the Justices to remove or alter similar structures erected before the Act came into force, and provides that if such construction has been lawfully made, compensation will be payable for damage caused by such removal or alteration; Section 141 empowers the Justices to give permission for the construction of verandas, balconies, etc., projecting over a street.

63. In the 1876 Act, S. 208 empowers the Commissioners to remove or alter similar structures, erected subsequent to the 1st of June, 1863; Section 209 empowers the Commissioners to remove or alter such structures, erected previous to the 1st June of 1863, and provides for the payment of compensation for such removal or alteration, if the construction was lawfully made; Section 210 empowers the Commissioners to give permission for the construction of verandas, etc., projecting over the street. Exactly similar provisions appear in Ss. 221, 222 and 223 of the 1888 Act.

64. On consideration of the scheme of the legislation in these four Acts, viz., the 1856, 1863, 1876 and 1888 Acts, in the above sections, I am of opinion that construction of projections, or encroachments, or obstructions, attached to buildings so as to form part of a building, projecting over public streets, was illegal except when done with the permission of the competent municipal authority, under S. 35 of the 1856 Act, or S. 141 of the 1863 Act, or S. 210 of the 1876 Act, or S. 222 of the 1888 Act.

65. The Calcutta Municipal Act of 1899, to which I have already had occasion to refer, contains an express provision against the construction of certain projections over street. Section 340(1) of the Act provides that no veranda supported by pillars resting on a street shall be erected, or re-erected by the General Committee in this behalf, in any street the width of which is less than fifty feet, or over any footpath the width of which is less than sixty feet. Section 340(2) provides that no roof shall be placed on any veranda supported as afore said and no roof exceeding three feet in width shall be placed on any veranda projecting over a street, and not supported as aforesaid. Sub-section (3) of the section provides that no person shall put up any veranda, balcony, sun shade, weather frame or the like to project over any street, without the permission of the Corporation. Sub-section (4) provides that-such permission may be given by the Corporation, on such conditions they think fit, subject to the restrictions of sub-rr. (1) and (2).

66. Construction without permission of a veranda projecting over a public sheet will therefore be clearly illegal, if made, when the 1899 Act was in force.

67. The examination of the law in force prior to the commencement of the 1925 Act with regard to the construction of verandas, structures, causing projection, encroachment or obstruction over and on any public street, therefore shows that construction of such structures if made without permission was illegal in most, if not in all cases.

68. The position appears to be the same with regard to similar structures constructed after the commencement of 1923 Act. Sub-rules (1), (2), (3) and (4) of R. 2 of Sch. XVI of this Act are substantially the same as sub-ss. (1), (2), (3) and (4) of S. 340 of the 1899 Act, that have been set out above. It is clear therefore that many at least of the structures, which, on being constructed after the commencement of the 1923 Act come within the operation of S. 299(1), must be held to have been constructed illegally.

69. It seems to me that most of the structures that would attract the operation of S. 299(1) are likely to be verandas and the like, projecting over public streets, and even if it be that some of the structures coming within the mischief of S. 299(1) may fall outside the class of structures, the construction of which was illegal under the law in force at the time of construction the reasonable conclusion is that in the majority of cases coming under S. 299(1), the construction was illegal at the time it was made.

70. I think it proper to mention that in the above examination of the law, specially of the law existing before the commencement of the 1923 Act, I have had to rely entirely on my own investigation, as no reference thereto was made at the Bar. It may therefore be that certain provisions of the law bearing on the question have escaped my notice; but in view of the provisions actually noticed by me, I think, that would not affect my conclusion as mentioned above.

71. It is said however that even though S. 299(1) may cover cases of illegal construction, action under S. 364(1) can be taken only in respect of structures the construction of which was legal at the time it was made, and that as regards structures, of which construction was not legal at the time of the construction, action has to be taken under S. 363(1). It is clear that where the structure coming within the operation of S. 299(1) was put up after the 1923 Act came into operation, in contravention of the provisions, of that Act, the Corporation is empowered to take action under S. 363(1). That is however no reason to think that action in respect of the same cannot also be taken under S. 364(1) — which it has to be remembered deals specially with ‘verandas, projections, etc’ while S. 363(1) deals generally with all cases of contravention of the provisions of the 1923 Act.

72. It cannot also be overlooked that S. 363(1) has no application to cases of construction of such offending structures, constructed illegally, when the earlier Municipal Acts were in force. These cases of construction illegal at the beginning therefore come within the operation of S. 364(1) only and not within S. 363(1).

73. My conclusion therefore is that in many cases falling within S. 364(1), the construction was illegal at the time it was made.

74. Coming now to cl. (6) of the section, we find that in every case coming under it, the construction was illegal at the time it was made. Schedule XV of the 1923 Act contains the rules ‘as to drains, privies and urinals’. Rule 21 thereof provides that (1) no service privy or service urinal exceeding eleven feet in height shall be placed in the space required by the Act to be left at the back of a building; (2) no service privy or service urinal situated in or adjacent to a building shall be placed at a distance of less than six feet from certain specified buildings; (3) every service privy and service urinal shall be detached from the inhabited portion of any building.

75. Rule 22(1) provides that no service privy or service urinal shall be placed on any upper floor of a building. This is subject to a proviso, which however does not affect our present problem. It is the ‘placing’ of the privy or urinal in contravention of the prescribed rules that are specified, which attracts the operation of S. 364(1). This placing’ is by the nature of the tiring simultaneous with the construction of the privy or urinal. Thus, the construction is illegal at the time it is made.

76. It may be mentioned here that sub-r. (3) of R. 21 provides that no service privy or service urinal shall be constructed in any premises occupied by a masonry building, or without the special sanction of the Corporation, in any other premises which are situated in a sewered street, and has an adequate filtered supply. Whether the construction of a privy in contravention of R. 21, sub-r. (3) will attract the operation of. S. 364(1), cl. (6), it is not necessary to decide for our present purpose; but if it does, here also, the construction is ‘illegal’ at the very beginning. An examination of cl. (7) of S. 364(1) also shows that in the vast majority of cases thereunder, the construction must have been illegal at the time it was made. As indicated earlier, cl. (7) deals with cases where a veranda, or other projection was constructed with permission granted on conditions under R. 2, sub-r. (4), Sch. XVI, but one or more of the conditions have been broken. On such breach, the Corporation may under R. 2, sub-r. (5) of the same schedule require the owner or occupier of such building to comply with the condition or conditions. It cannot possibly be said that there is no illegality, before non-compliance with such notice. The illegality commences as soon as the condition was broken. In most cases, as I have said earlier, the condition will be of an affirmative character, viz., that something be done before or at the time of the construction. The breach of any such condition, where there is a breach, will be practically simultaneous with the completion of the veranda or other projection. In these cases, therefore, the construction would be illegal at the very time it was made. There may be a few cases, where the condition is of a negative character, viz., that some specified thing be not done. In these cases, the breach may be on a later date. But in all the cases, the illegality commences as soon as the breach occurs, and necessarily, even before a notice has been issued.

77. In cases under cl. (10), the construction may or may not have been illegal at the time it was made. This clause deals with (1) buildings which are by reason of their having no plinth, or a plinth of insufficient height, or by reason of the want of proper drainage or ventilation or by reason of the impracticability of cleansing, attended with risk to the health of the occupier, or neighbours, or the public and (b) a block of buildings which is for any of the reasons mentioned in (a), or by reason of the manner of crowding of the buildings in the block attended with similar risk.

78. Rule 9 of Sch. XVII requires that the plinth of a masonry building, except in the case of motor garages and coach houses shall be two feet above the level of the centre of the nearest street, provided that the plinth of the stables and cow-sheds may be one foot above such level. Rule 77 of the same schedule prescribes the height of the plinth for huts. Similar provisions though not exactly the same were contained in the 1899 Act, in R. 8 of Sch. XVII in respect of masonry buildings and in R. 46 in respect of huts. In the Calcutta Municipal Act, 1888, S. 243 requires that the plinth of buildings shall be at least two feet above the centre of the nearest street, while S. 247 contains similar provisions for huts. The previous Acts — viz., the Calcutta Municipal Act of 1876, and the Calcutta Municipal Act of 1863 do not appear to contain any provisions as regards the height of the plinth; but Section 269 of the Former Act, and Section 161 of the latter Act require that the levels at which the lowest floor of a house shall be built must be in accordance with the decision of the Commissioners and of the Justices respectively. A building without any plinth that attracts the operation of R. 6(1), Ch. XVII of the 1923 Act, must have been constructed in contravention of the provisions of the Municipal Act, if constructed when the 1888 Act or the 1899 Act was in force, or after the 1923 Act commenced. As it is almost certain that the Commissioners under the 1876 Act and the Justices under the 1863 Act must have insisted on some plinth for every building, it is safe to say that if any building was constructed without plinth when either of these Acts was in force, the construction was illegal.

79. In view of the provisions of law discussed above, I think it reasonable to hold that buildings which attract the operation of R. 6(1) of Sch. XVIII because of the plinth being insufficient, were also constructed in contravention of the law then in force, as it is very unlikely that the plinths which satisfied the legal requirements at the time of construction, would appear to be insufficient later on.

80. It seems likely that where a building attracts the provisions of S. 6(1) of Sch. XVIII because of want of proper drainage, or ventilation, investigation will often disclose that it was constructed in contravention of the relevant requirements as regards drainage, or ventilation under the Municipal Act in force at the time of the construction. It may sometime happen however that though the building when constructed had proper drainage and ventilation, its drainage or ventilation has ceased to be proper, because of subsequent events.

81. Where a block of buildings attracts the operation of R. 6(1) by reason of the manner in which the buildings were crowded together, it will sometimes, be found that this crowding together is the consequence of contravention of some building rules in force at the time of the construction; but it may also be that crowding together has occurred, even though no building rule or other provision of law was broken.

82. I have therefore come to the conclusion that in the cases under cl. (10) of S. 364(1), the construction would be in the majority of cases, illegal at the time it was made, but in a few cases the construction was legal at that time. In these latter cases, the illegality commences only on the noncompliance with the notice under R. 6(1) within the time specified therein.

83. I find therefore that while the basis on which the reasoning of the learned counsel for the Corporation as well as the conclusion of the learned Judges in Jatindra's case (A) rests, does not in fact exist in any case under cl. (6), in a very large number of cases under cl. (1), and in the vast majority of cases under cls. (9) and (10), this reasoning and this conclusion cannot therefore be accepted.

84. I have no doubt however that the solution of our problem as to what modifications the Court can properly make in the provisions of S. 363(2), for applying them to S. 364(1) proceedings must be sought in the direction which Jatindra's case (A) indicates.

85. In prescribing the period of limitation, for proceedings under S. 364(1), the Legislature, it is clear, thought it proper that the starting point of limitation should be the commencement of the illegality of the structure. It was because the learned Judges were of opinion, in Jatindra's case (A), that in proceedings under S. 364(1), the illegality commenced in all cases, on the expiry of the notice mentioned therein, that they decided that the modification should be such as to make this expiry the starting point of limitation in such proceedings.

86. The examination of the various cases arising under the ten different clauses has established the mistake of that opinion; but the position stilt remains that (1) in many cases, the illegality commenced at the very time of construction, (2) in a few cases, the illegality commenced sometime after the construction, but before the issue of any notice; and (3) in other cases, the illegality commenced on the non-compliance with the notice requiring removal, or alteration, within the period mentioned therein. Bearing in mind the principles mentioned earlier that the policy underlying the rule of limitation in S. 363(2) must not be changed, and that only such changes as are necessary, should be made, I have come to the conclusion that in applying the provisions of S. 363(2) to proceedings under S. 364(1), we should insert, after the words ‘in respect of any work that is done,’ the words ‘illegally or continued illegally’. With this modification, the provision will read thus: “Notwithstanding anything in sub-s. (1), no proceedings thereunder shall be instituted in respect of any work that is done illegally or continued illegally more than five years before the institution of such proceedings.” The result will be that where the construction was illegal at the beginning, the starting point of limitation will be the date of the construction, but where the illegality commenced later, the starting point will be such later date when the illegality commenced.

87. This modification will remove the difficulty that the application of the ‘five years since construction’ rule would cause, in cases under cls. (2), (3), (4), (5), (8) and (9), and will also remove any real difficulty that would in practice be caused under that rule, in some cases under cls. (1), (7) and (10). In cases under cl. (6) and in most of the cases under cls. (1), (7) and (10), where the construction was illegal at the time it was made, the provision that the starting point of limitation, will be date of construction, will not, as has been seen earlier, cause any real difficulty.

88. It is argued however that if only the modification as proposed is made, the curious result will follow that time for the rule of limitation would start to run, even before the cause of action, enabling the Corporation to institute any proceeding has arisen. It is said that the intention of the Legislature in prescribing periods of limitation, is always to make available to the litigant, the period prescribed, for coming to the Court to seek relief. I am prepared to admit that in most cases, the period pre scribed in a rule of limitation is available to a litigant, after the cause of action has arisen. But it is futile to seek logic in rules of limitation, and there is nothing to prevent the Legislature from prescribing a point of time before which proceedings must be commenced, without making the full period mentioned in the rule available for instituting proceedings. An instance of this can be seen in cl. (5) of S. 363(1). That clause deals with cases where alterations as required by a notice under R. 22 of Sch. XVI have not been duly made. This rule provides that if an inspection discloses that a building has been erected, not in accordance with the sanctioned plan, or in contravention of the Act, or rule, or bye-laws thereunder, the Corporation may require the owner of the building to make the necessary alterations, after giving him an opportunity to show cause why such a direction should not be given. Proceedings under S. 363(1) can be instituted by the Corporation only, after the period mentioned in the final order, as the time within which the alterations are to be made, has expired. The effect of the provision in sub-s. (2) of S. 363 is that no such proceeding can be instituted more than five years from the date when the offending building was constructed. But as some time will be necessarily taken up by the period to be fixed for making the alteration, which fixation has to be after the inspection, and in the cases, where the owner appears and shows cause against the proposed order, some time will be taken up in hearing him, before the final order is made, the inevitable result will be that in every case under cl. (3) of S. 363(1) the Corporation will have less than five years’ time during which it can institute proceedings. Where the inspection which discloses the contravention of the sanctioned plan, or the Act, or the rules, or bye-laws, takes place long after the construction, the period may be very much less than five years. The cause of action does not accrue until the period mentioned in the notice has expired; but as the rule of limitation in S. 363(2) gives five years’ time from the date of construction of the offending structure, the result is that the rule does not provide five years, the period mentioned in the rule from the date when the cause of action accrued, for instituting proceedings. It is clear therefore, that the Legislature saw nothing wrong, in fixing the period of limitation to run from a date anterior to that date when the cause of action arose. The argument that the provisions of S. 363(2) should be so modified as to provide five years’ time, when the right to institute proceedings accrues, cannot therefore be accepted.

89. There is a deceptive simplicity in the view that there should be the same starting point of limitation in all cases under S. 364(1), being the date of expiry of the notice, which is undoubtedly attractive. But as all the arguments on which it is based, appear on closer analysis to be fallacious, we must reject it, for we must not succumb to the temptation of finding an easy solution to our problems.

90. It is also noteworthy that if the provision of S. 363(2) be modified, as proposed on behalf of the Corporation, and as decided in Jatindra's case (A), a very anomalous position will arise in the cases, where proceedings lie under S. 363(1) as also under S. 364(1). Proceedings under 363(1) would be come barred at the end of five years after the construction in these cases; but it will still remain open to the Corporation, to institute proceedings under S. 364(1), in respect of the same structure, by merely delaying the issue of the notice to remove or alter it. Such a strange result should be avoided, wherever possible.

91. For all these reasons, I have come to the conclusion that in applying the provisions of S. 363(1), to proceedings under S. 364(1), the proper modification the Court should make, is by inserting after the words “the work is done”, the words “illegally, or continued illegally”.

92. I would therefore give the following answers to the questions:

Q. 1-Part (1): No.

Q. 1-Part (2): Not in all cases.

Q. 2: Not in so far as it was held there that the starting point of limitation for proceedings under Section 364(1) of the Calcutta Municipal Act, 1923 would in all cases be the date of the expiry of the period mentioned in the notice not complied with.

93. As in Q. 1, special mention has been made of the Cl. (1) of S. 364(1), I would add the following:

The starting point of limitation under S. 363(2) in its application mutatis mutandis to proceedings instituted under Section 364(1), Cl. (1) of the Calcutta Municipal Act, 1923, would be

(a) Where the work is illegal from the beginning, under the Municipal Act, in force, at the time of construction, the date of the completion of the work, and not the date of the expiry of the period mentioned in the notice under Section 299(1) of the Calcutta Municipal Act, 1923.

(b) Where the work was not so illegal, the date of the expiry of the period mentioned in the notice under S. 299(1).

94. Coming now to the facts of the present case, we find that quite cleary the construction of the verandahs, projecting over the Corporation Road, or the Phears lane, was illegal at the time it was made. It is equally clear that the verandahs projecting over the Corporation Road, were made not later than January, 1947 on which date these were detected by officers of the Corporation i.e more than five years before the date of institution of the proceedings. The verandahs projecting over the Phears lane, were constructed, according to the finding of the Municipal Magistrate which there is no reason to disturb, more than five years before the date of the institution of the present proceeding. In respect of these verandahs therefore, the proceeding is barred by limitation. Whether the proceeding in respect of the verandahs over the Corporation Road, was not maintainable, in view of the earlier decision in a proceeding under S. 363(1) need not be considered.

95. In respect of the projecting cornice and the projecting sloping roof, the proceeding is not on the finding of fact by the learned Magistrate barred by limitation. I am clearly of opinion however that in refusing to make an unconditional order of demolition of these, but in ordering that these will be demolished by the Corporation, if the owner did not pay the charges and encroachment fees assessed by the Corporation, the Magistrate exercised a sound discretion.

96. I would therefore discharge the rule.

S.R Das Gupta J.:— I agree with the view taken by my Lord the Chief Justice and I have nothing to add.

Sarkar, J.::— The question referred in this case concerns the interpretation of a provision of the Calcutta Municipal Act, 1923 and the correctness of certain decisions of this Court.

97. There is a building in Phears Lane in this City, the lane being to the east of the building. Along the north of the building is a passage which it has been found in this case to be a passage of the Calcutta Corporation. Both the passage and the lane are public streets within the meaning of the Act. In September, 1951 an officer of the Corporation found that the building had certain verandahs and cornices projecting on the lane and the passage. It appeared to the Corporation that these projections had never been authorised by it and it thereupon on September 22, 1951 gave a notice to the owner of the building under S. 299(1) of the Act to remove the offending verandahs and cornice within a certain time. The owner did not comply with this notice nor did he appear before the Corporation when asked to do so in that connection. The Corporation then passed an order on March 4, 1952 that nothing would be done in the matter if the owner paid encroachment fees and certain other charges at double the usual rates within a month failing which the Municipal Magistrate was to be moved for the appropriate orders.

98. The owner did not pay the fees and charges. The Corporation thereupon on September 2, 1953 made an application to the aforesaid Magistrate under S. 364(1) of the Act for an order directing the demolition of the offending structures. The Magistrate held on the evidence adduced before him that the passage on the north of the building was a public street. There was never any question that the verandahs and cornice had encroached on this passage and Phears Lane. It also appeared in the course of the trial before the Magistrate that of the offending structures, the verandah on the fourth storey abutting on the Phears Lane on the east and the verandahs on the second, third and fourth storeys, on the passage on the east had been the subject-matter of a previous case started by the Corporations against the owner which had failed. The learned Magistrate thought that with regard to these the Corporation could not start a fresh case and for this reason he dismissed the case with regard to them. About the remaining offending constructions (excepting a sloped roof over one projecting verandah and the cornice) he accepted the evidence of a witness called by the owner that they had been in existence at least for the last twelve years. He therefore held that as these constructions were more than five years old at the date of the notice under S. 299 the proceedings in respect thereof were barred by limitation under S. 364(2) of the Act. With regard to the cornice and the sloped roof he held that the owner had failed to prove that they were more than five years old as he should have done if he wanted to set up a bar of limitation. With regard to these he directed that as the Corporation was willing to let these stand on payment of fees and charges, they need not be demolished if the fees and charges were paid within May 31, 1954 failing which they were to be demolished. He had also found that the offending structures had been built without sanction. This judgment is dated April 24, 1954.

99. The Corporation applied to this Court in its Criminal Revisional Jurisdiction against the learned Magistrate's order and on July, 5 1954 obtained an ad interim stay of the operation of it. This application was heard by Mitter and Guha Ray, JJ. The learned Judges thought that the decision in the previous case though under a different section of the Act, namely, S. 363 operated as a bar under principles analogous to res judicata and prevented any further question regarding any offending structures which were also the subject-matter of the previous case, being raised in this case. For this part of their judgment the learned Judges relied on Sambasivan v. Public Prosecutor, Federation of Malaya, 54 Cal WN 695 (PC) (C).

100. On the question of the bar of limitation the learned Judges were pressed on the authority of the case of 35 Cal WN 397 : (AIR 1931 Cal 433) (A), to hold that the proceedings before the Magistrate were within time. That was also a case under S. 364(1) in respect of a platform forming part of building which obstructed a Corporation passage and the Corporation asked for an order for its demolition.

101. It was admitted that the platform had been in existence for more than five years before the proceedings in the Magistrate's Court had commenced. It was argued on behalf of the owner that the proceeding was barred by limitation as under S. 364(2) it had to be commenced within five years of the construction of the offending structure and it had not been so commenced. There also a notice under S. 299 had been served and it was contended on behalf of the Corporation that under S. 364(2) the period of limitation started to run from the expiry of the period mentioned in the notice. It was held that the contention of the Corporation was right. The view taken in Jatindra Nath Barat's case (A), was followed in an unreported Division Bench Decision of this Court in Criminal Revn. No. 879 of 1954 (Cal) (B), which was also cited. Mitter and Guha Ray, JJ. were unable to agree fully with these cases and framed a question for decision by a Full Bench. At the hearing before us we remodelled the question and formed two questions which are set out below:

102. Whether under Section 364(2) of the Calcutta Municipal Act, 1923, the starting point of the period of limitation for proceedings to be instituted under S. 364(1) is the expiry of the period of the notice in all the cases mentioned in the several clauses of the sub-section, particularly in the case mentioned in Cl. (1) or whether it is the completion of the impugned work in inter alia, that case.

103. Whether the case of 35 Cal WN 397 : (AIR 1931 Cal 433) (A) and Criminal Revn. No. 879 of 1954 (Cal) (B), decided on 9th February, 1955 (un reported) were rightly decided.

104. The questions arise on the interpretation of S. 364(2) of the Act. It is necessary however to set out both Ss. 363 and 364 of the Act for a proper appreciation of the question that arises. These sections read as follows:

105. Section 363: If the Corporation are satisfied:

106. That the erection of any new building

(a) has been commenced without obtaining the written permission of the Corporation, or

(b) is being carried on or has been completed otherwise than in accordance with the particulars on which such permission was based, or

(c) is being carried on or has been completed in breach of any provision contained in this Act or in any rules or by-laws made thereunder, or of any direction or requisition lawfully given or made under this Act or under such rules or by laws, or

107. That any alteration of, or addition to any building or any other work made or done for any purpose in to or upon any building, has been commenced or is being carried on or has been completed in breach of or otherwise than in accordance with, any sanction granted under Ss. 330, 340 or 341, or

(3) that any alterations required by any notice issued under R. 22 of Schedule XVII have not been duly made, they may, after giving the owner of such building an opportunity of being heard, apply to a Magistrate, and such Magistrate may make an order directing that such erection, alteration, addition or other work, as the case may be, or so much thereof as has been executed unlawfully as mentioned in Cls. (1), (2) or (3),

or that any structure, specified under the Explanation to Cl. (d) of R. 53, or the Explanation to Cl. (iv) of R. 81 of Schedule XVII as a structure to be demolished or altered, shall

(i) be demolished by the owner thereof or altered by him in accordance with the order of the Magistrate to the satisfaction of the Corporation, as the case may require, or

(ii) be demolished or altered by the Corporation at the expense of the said owner:

Provided that the Magistrate

(a) shall not make any order under this section without giving the owner and occupier, of the building to be so demolished or altered full opportunity of adducing evidence and of being heard in his defence, and

(b) may make any such order notwithstanding, the fact that a valuation of such building has been made by the Executive Officer under Chapter X for: the assessment of the consolidated rate:

Provided that where the Corporation have instituted proceedings under S. 493 no application shall be made under this section.

108. Notwithstanding anything contained in sub-s. (1) no proceedings shall be instituted thereunder: in respect of any work which has been done more than five years before the institution of such proceedings:

Provided that the onus of proving that the work was done more than five years previously shall lie on the owner.

Section 364: (1) In any of the following cases, namely,

1. if, within the period prescribed in any notice issued under S. 299, sub-s. (1) requiring the removal or alteration of a verandah, platform or other similar structure or a fixture, the same be not duly removed or altered or

2. if the owner of any building erected or added to between a street alignment and the building line fails to remove such building or addition when called upon by the Corporation to do so under S. 303, sub-s. (3) or

3. if any person who makes any additions to a building in pursuance of an agreement executed under the proviso to sub-s. (1) of S. 303 fails to remove such additions when called upon by the Corporation to do so, or

4. if the owner of any building erected or added to under the provisions of S. 309 fails to remove such building or addition when called upon to do-so, or

5. if the owner of any building, which is unfit-for human habitation, fails to demolish such building when required to do so under S. 382, sub-s. (2) or

6. if any privy or urinal be placed in contravention of R. 21 or R. 22, sub-r. (1) of Schedule XV or

7. if, within the period prescribed in any notice issued under R. 2, sub-r. (5) of Schedule XVI requiring the owner or occupier of a building to comply with any condition on which the erection of any verandah or other projection was permitted, such condition is not complied with, or

8. if, within the period prescribed in any notice issued under R. 2, sub-r. (6) of Schedule XVI requiring the owner or occupier of a building to remove a verandah or other projection, the same be not duly removed, or

9. if, within the period prescribed in any notice-issued under R. 7, sub-r. (2) of Schedule XVII requiring the owner of a building to remove or alter an external roof or wall made of inflammable material, the same be not duly removed or altered, or

10. if any owners or occupiers neglect to execute any works or to take any measures required by any notice affixed under R. 6, sub-r. (1) of Schedule XVIII, the Corporation may apply to a Magistrate, and such Magistrate may make an order directing that the projection, building, block of buildings, verandah, platform, fixture, additions, roof, wall, privy or urinal, as the case may be, shall

(a) be demolished by the owner thereof or altered by him to the satisfaction of the Corporation, or

(b) be demolished or altered by the Corporation at the expense of such owner:

Provided that before making such application, the Corporation shall give the owner or occupier an opportunity of being heard on his behalf:

Provided also that the Magistrate

(i) shall not make any order under this section without giving the owner and occupier of the structure to be so demolished or altered full opportunity of adducing evidence and of being heard in his defence, and

(ii) may make any such order notwithstanding the fact that a valuation of such building has been made by the Executive Officer under Chapter X for the assessment of the consolidated rate:

Provided also that where the Corporation have instituted proceedings under S. 493, no application shall be made under this section.

109. The provisions of sub-s. (2) of S. 363 shall apply mutatis mutandis to the institution of proceedings under this section.

110. The position then is that with regard to a proceeding instituted under S. 364 the provisions of S. 363(2) have to be applied mutatis mutandis. There is no dispute about the meaning of the words mutatis mutandis. They mean “with the necessary changes being made”: (See Webster's dictionary). We have before us a proceeding under S. 364(1), Cl. (1). The question is with what changes S. 363(2) is to be applied to such a proceeding. We have also the general question with what changes S. 363(2) has to be applied to the proceedings instituted under the other clauses of S. 364(1). The answer to these questions will determine when the period within which a proceeding is to be instituted as provided in S. 363(2) will commence.

111. Lort-Williams J. who delivered the judgment in Jatindra Nath Barat's case (A), expressed himself in these words on the question of the necessary changes to be made in S. 363(2):

Under the provisions of S. 363, the work is unlawful from the beginning, and proceedings must be taken within five years of erection. But under S. 364 the illegality begins only upon the expiry of the notices mentioned therein and proceedings must be taken within five years of such expiry. Section 363(2) therefore is applied to S. 364, mutatis mutandis, namely by substituting for ‘any work which has been done’, the words ‘any non-compliance with a notice which expired’.

112. This view was accepted in Jagneswar Roy's case (B), but, as I have earlier said, was found unacceptable by the learned referring Judges, Mitter and Guha Ray, JJ. Guha Ray, J. who delivered the judgment of the bench first observed:

We respectfully disagree with the view taken in these cases as to the construction of S. 364(2) of the Act. Section 364(1) contemplates different types of cases in its different clauses and we are concerned with Cl. (1) of S. 364(1). Clause (1), a part of Cl. (2) and Cl. (6) appear to contemplate constructions which are illegal from the very beginning either because they are completely unauthorised or because they are in contravention of specific rules. The other clauses appear to contemplate cases which are not initially illegal but only turn out to be so on the happening of certain contingencies.

Guha Ray J. then concluded:

Clearly then S. 364(1) broadly contemplates two types of cases in one of which the constructions are illegal from the very beginning and in the other they are not illegal from the beginning but i become illegal on the expiry of the period of the notices issued by the Corporation. If S. 363 be compared to S. 364 it will at once appear that the first contemplates only one type of cases where the constructions are illegal from the very beginning because they are completely unauthorised. That explains to our mind the use in S. 364(2) of the expression ‘mutatis mutandis’. Where the constructions are illegal from the very beginning the starting point of limitation should, in our opinion, be the date of construction and not the date of expiry of the notice as held by Lort-William J. in the case of 35 Cal WN 397 : (AIR 1931 Cal 483) (A). But where the Acts become illegal on the expiry of the period of the notices the starting point of limitation will be the date of the expiry of the period. The view, therefore, taken in the case of Jatindra Nath Barat (A), referred to already, represented, in our opinion, only a part of the correct construction of the section.

113. For myself I prefer to approach the question in the following way. Section 364(1) provides for institution of certain proceedings. Section 364(2) says that to the institution of these proceedings the provisions of S. 363(2) shall apply mutatis mutandis, that is, with the necessary changes being made.

114. The first thing that strikes me is that some changes in S. 363(2) are considered by the legislature necessary when it is applied to a proceeding instituted under S. 364. In other words some changes must be made for mutatis mutandis does not mean “with such changes, if any, as may be necessary” but “with the necessary changes being made”. The only question therefore is what are the changes that have to be made?

115. Section 363(1) provides for institution of proceedings in respect of works mentioned there. Section 363(2) says that no such proceeding shall be instituted in respect of any work which has been done more than five years before the institution of the proceeding. Section 364(2) deals with proceedings not under S. 363(1) but under S. 364(1) and applies to such proceedings S. 363(2) with certain changes being made in it. Therefore obviously in applying S. 363(2) to a proceeding under S. 364(1) the words ‘Notwithstanding anything contained in sub-s. (1), no proceeding shall be instituted thereunder’ in S. 363(1) can have no operation. I conceive that this is so not because of the expression ‘mutatis mutandis’ occurring in S. 364(2) but because this sub-section expressly states that the proceeding to which S. 363(2) has to be applied is one under S. 364(1). In my view this result would have followed even if the expression ‘mutatis mutandis’ was not there, The omission of the words “Notwithstanding anything contained in sub-s. (1) no proceeding shall be instituted thereunder” occurring in S. 363(1) in applying the provisions of that section by virtue of S. 364(2) is not therefore brought about by the use of the expression “mutatis mutandis” in the latter section. When a section in a Statute says that the provisions of another section applicable to specified proceedings, shall apply to other proceedings, it does not and cannot include in the provisions so made applicable, those parts of them which are referrable to the proceedings contemplated by the Section so applied. The omission hence, of the words “Notwithstanding anything contained in sub-s. (1) no proceeding shall be instituted thereunder” from S. 363(2) when its provisions are applied to a proceeding under S. 364(1) by virtue of S. 364(2) is not the change brought about by the use of the words ‘mutatis mutandis’.

116. What then is the change contemplated? There has to be a change and such change must be necessary. In order to find out what is the necessary change, one has inevitably to ask why is a change necessary? The answer to this question must be that the proceedings contemplated by S. 364(1) are in respect of matters different from those in respect of which proceedings are contemplated by S. 363(1). I cannot imagine that if there was not such difference any change would have been necessary. If the matters were the same there would have been no reason to provide for different periods within which proceedings in respect of them had to be brought.

117. It has then to be found out how the matters in respect of which proceedings before Magistrate are contemplated under Ss. 363(1) and 364(1) are different from each other. In order to do that, the language of the two sub-sections has to be examined because the matters are mentioned there. Looking at S. 363(1) it appears that all the cases contemplated there are in respect of new constructions in respect of which previous sanction of the Corporation of Calcutta was required by the Act and which have been carried out either altogether without such sanction or not in terms of the sanction. So the matters in respect of which proceedings can be started under S. 363(1) are all new constructions. Under sub-s. (2) of S. 363 such proceedings have to be brought within five years of the work being done, that is the new construction being completed. This is quite understandable. In respect of the new constructions it is the duty of the Corporation to be vigilant and five years have been thought as a reasonably long period within which the Corporation should start proceedings.

118. In this connection I think S. 363(1), Cl. (3) may require a little explanation. That clause says that when any alteration required by a notice issued under R. 22 of Schedule XVII has not been made, the Corporation may start proceedings before a Magistrate. This clause no doubt gives the right to start proceedings only after the non-compliance with the notice, as is the case in practically all the proceedings contemplated by S. 364(1). The notice under Schedule XVII, R. 22 is however in respect a new building and requires the owner to make alterations where the building has been constructed otherwise than in accordance with the sanctioned plan or in contravention of the Act or the rules or by-laws made thereunder. So here also it would appear that we are really concerned with a new construction. The legislature has in its wisdom thought it right to provide that a proceeding in respect of such construction can only be brought within five years of the work being done though in respect of one class of such proceedings a provision for serving a notice requiring something to be done has been made.

119. Coming now to S. 364(1) I find that it contemplates cases in each of which a notice by the Corporation requiring the owner to do something has been issued and not been complied with within the period limited by the notice. In all the clauses of S. 364(1) such non-compliance with the notice has been expressly mentioned except Cl. (6). In my view for reasons which I shall state later, Cl. (6) also contemplates such non-compliance but I will now deal with all other clauses except Cl. (6). The provisions of these clauses show that the right to institute proceedings under S. 364(1) arises on the non-compliance with the notices therein mentioned. As the right to institute a proceeding under S. 364(1) arises on the non-compliance with the notice, it necessarily follows that the period within which the proceeding should be instituted cannot commence from a time before the right arises. It must, in my view, commence at the earliest when the right arises, that is, when the non-compliance takes place. It is irrelevant therefore to enquire when the work in connection with which the notice had been given, was done. The proceeding contemplated is for noncompliance with the notice and not for the doing of the work. That being so that part of S. 363(2) which provides for the commencement of the period within which the proceeding has to be brought from the doing of a work can have no application when that sub-section is applied to a proceeding brought under S. 364(1). That part of S. 363(2) has necessarily to be changed when it is applied to a proceeding brought under S. 364(1). It must be changed so that the period for the institution of the proceeding is made to commence from after the right to institute it has accrued. Section 363(2) in its application to a proceeding instituted under S. 364(1) must hence be read by substituting for the words “any work which has been done, the words “any non-compliance with a notice which has expired”. This is the view expressed by Lort-Williams J. and with it I entirely agree.

120. It was said that the fact that the right to institute proceedings arises on the non-compliance with the notice does not make it incumbent that the period within which such proceedings should be instituted should commence on the non-compliance. It is said that S. 363(1), Cl. (3) makes the right to institute a proceeding thereunder arise on the noncompliance with the notice therein mentioned but under S. 363(2) the period within which the proceeding can be instituted starts to run from the time when the work’ in respect of which the notice was given was completed. So it is said that the Act contemplates that the period may commence from a time before the right to institute the proceeding arises. It does not seem to me however that the right to institute a proceeding under S. 363(1), Cl. (3) arises on the non-compliance with the notice therein mentioned. That notice is given under Sch. XVII, R. 22. That rule is concerned with a new building and it says that if the Corporation finds that a new building is being or has been erected otherwise in accordance with the approved plan or in contravention of this Act on the rules or by-laws made thereunder, the Corporation may call upon the owner to make alterations in the building as specified in the notice or to show cause why such alterations should not be made. If the owner appears and shows cause the Corporation may cancel the notice or modify it. Therefore the non-compliance with the provisions of the notice requiring alterations to be made does not create a new right in the Corporation to institute proceedings before a Magistrate. The requisition to make the alterations may itself be cancelled or modified and hence the non-compliance with the notice does not itself result in an illegality being perpetrated and that being so no right to institute a proceeding for the non-compliance can be said to arise. As has been seen, that notice can be given only when work is being or has been carried on otherwise than in accordance with the permission of the Corporation or in contravention of the Act or the rules or by-laws made thereunder. When such is the case a right to institute a proceeding before a Magistrate in respect of the work arises under S. 363(1), Cl. (1), sub-cls. (b) and (c). The work being against the provisions of the Act is ex hypothesi unlawful. The right to institute the proceeding therefore arises under S. 363(1), Cl. (1) sub-cls. (b) and (c) and not because of any non-compliance with the notice mentioned in S. 363(1), Cl. (3). The Corporation have a right independent of the notice to institute proceedings and that notice is only intended to give a chance to the owner to rectify the wrongful work done before the proceedings are actually launched by the Corporation. This view of the matter becomes clearer when it is considered that on an application being made under S. 363(1) the Magistrate “may make an order directing that such erection, alteration, addition or other work, as the case may be, or so much thereof as has been executed unlawfully as mentioned in Cls. (1), (2) or (3)” — shall be demolished or altered. Therefore the order that can be made by the Magistrate concerns work “executed unlawfully as mentioned in Cls. (1), (2) or (3)”. Now Cl. (3) which provides for the notice being given does not, at least on the face of it, mention any work which is considered unlawful. It mentions a notice and that notice mentions some work and that work is unlawful under Cl. (1), sub-cls. (b) and (c). Hence it is the illegality created by these sub-clauses which gives under the Section the right to institute the proceedings and not the non-compliance with the notice mentioned in Cl. (3). The position under S. 364(1) is entirely different. There the right to institute proceedings is made expressly to arise on the non-compliance with the notices therein mentioned. By that section no right is given to institute proceedings in respect of the work there mentioned without a notice being served and disobeyed. For the purpose of determining when a right to institute proceedings under that section arises, it is therefore irrelevant to enquire whether the work therein mentioned is illegal or gives rise to a right to institute proceedings in respect thereof under other provisions of the statute. It is equally irrelevant therefore to enquire when such work was completed.

121. I shall now deal with Cl. (6) of S. 364(1). That clause does not on the face of it mention any notice or non-compliance with it. It says that when a privy or urinal is placed in contravention of R. 21 or sub-r. (1) of R. 22 of Schedule XV, the Corporation may start proceedings before a Magistrate. Section 275 gives the Corporation the right to inspect all privies and urinals not belonging to the Corporation or set up at the charge of the Municipal Funds. Section 278 provides that if upon the inspection the Corporation find the privy or urinal has been constructed in contravention of any of the provisions of Schedule XV, they may by written notice, require the owner to take such order with them as the Corporation may think fit to direct. I think that the provisions of S. 278 about the service of a notice are obligatory: See Julins v. Bishop of Oxford, (1880) 5 AC 214 (D). It would therefore be seen that even Cl. (6) of S. 364(1) contemplates the expiry of a notice before a proceeding under it can be started before a Magistrate.

122. I would therefore answer the questions before us as follows:

Q. 1. The starting point of the period of limitation for proceedings to be instituted under S. 364(1) Cls. (1) to (5) and (7) to (10) is the expiry of the period of notice mentioned in these clauses and for proceedings under Cl. (6) the expiry of the notice mentioned in S. 278 of the Act.

Q. 2. The cases of 35 Cal WN 397 : (AIR 1931 Cal 433) (A) and Criminal Revn. No. 879 of 1951 decided on 9th February, 1955 (Cal) (B) (unreported) were rightly decided.

123. We have however to decide the whole case. I agree that the decision in the previous case operates as res judicata.

124. Therefore no order for demolition of the verandah on the fourth storey abutting on the Phears Lane on the east and the verandahs on the second, third and fourth stories on the passage on the east can be made. The order of the learned Magistrate with regard to the sloped roof on one of the verandahs and the cornice is not challenged before us. The proceeding with regard to the rest of the offending structures is in my view within time. The matter should go back to the learned Magistrate to decide on the merits what order should be made with regard to these structures.

Guha Ray J.:— This reference involves a construction of Section 364(2) of the Calcutta Municipal Act of 1923 which lays down that the provisions of sub-s. (1) of S. 363 shall apply mutatis mutandis to proceedings under S. 364(1). The expression “mutatis mutandis” is an adverbial phrase qualifying the verb “shall apply” and meaning “those changes being made which must be made”. Literally therefore, sub-s. (2) of S. 364 means nothing more and nothing less than this that in applying S. 363(2) to proceedings under S. 364(1) those changes must be made which, the exigencies of the case may require. Necessarily then no changes need be made where none are called for and even where some changes are called for, they must be kept within that bare minimum without which S. 363(2) cannot possibly be applied to the proceedings under S. 364(1), regard of course, being had to the nature and the scope of the proceedings to which it has to be applied.

125. This much which follows from the words of S. 364(2) itself has to be borne in mind in any attempt to discover the true meaning of S. 364(2) from an analysis of this and other relevant sections in the light of an examination of the scheme of the Act in matters of verandahs etc., causing projections etc., on public streets, side by side with a brief review of the corresponding provisions of the predecessors of this Act from Act 14 of 1856, onwards, the two earlier Acts, namely Act II of 1848 and Act 12 of 1852 to which My Lord Das Gupta J., has referred in his judgment being left out of account.

126. Chapter XX of the Act of 1923 deals with the “proprietary rights of the Corporation in Streets and Public places.” Section 295 vests these rights in the Corporation and S. 296 imposes on it the obligation of maintaining and repairing them and entitles it for those purposes to do everything necessary for the public safety and convenience. Section 298 lays down that streets and public places shall be maintained, repaired, protected and otherwise regulated in accordance with the rules contained in Schedule XVI. Rule 2 of Schedule XVI deals with the regulation of verandahs projecting over streets. Sub-rule (1) of this rule prohibits the erection of a verandah supported by pillars resting on a street either specified by the Corporation or the width of which is less than 50’ and the footpath of which is ‘not’ less than 8’ in width, the word ‘not’ before “less” being very probably a misprint. Sub-rule (2) prohibits the placing of a roof on any verandah supported on pillars resting on a street and the placing of a roof more than 3’ wide on any verandah projecting over a street and not so supported. Sub-rule (3) prohibits the erection of a verandah to project over a public street without the written permission of the Corporation. Sub-rule (4) entitles the Corporation to give, subject to the provisions of sub-rr. (1) and (2), written permission in its discretion, on such conditions as it thinks fit and on payment of such fees or rent as it may, from time to time fix, to owners or occupiers of buildings abutting on streets, to put up verandahs etc., whether supported by pillars or not, projecting over streets. On the breach of any such condition, the Corporation may under sub-r. (5) direct compliance with it by a written notice. Even where the Corporation gives permission under sub-r. (4), it may under sub-r. (6) direct by a written notice, the removal of the projection and on its removal, the owner or the occupier, as the case may be, is entitled to reasonable compensation out of the municipal funds.

127. Section 299(1) then provides that when any verandah etc., attached to a building so as to form part of it, whether erected before or after the commencement of the Act of 1923, causes a projection, encroachment or obstruction over or on a public street, the Corporation may, by a written notice, require the owner or the occupier of the building to remove or alter such structure or fixture. Sub-rule (3) provides that if the owner or the occupier proves that such structure was erected before 1-6-1863 or that it was erected on or after that day with the consent of any municipal authority duly empowered in that behalf, the Corporation shall, after the removal of the structure or the fixture, make reasonable compensation to every person who suffers damage by its removal.

128. It will be convenient at this stage to take a bird's eye view of the legislation on the subject from 1856. The relevant Acts to be considered are Act 14 of 1856, Act 6 of 1863, Act 4 of 1876, Act 2 of 1888 and Act 3 of 1899, the last being the immediate predecessor of Act 3, of 1923 with which we are concerned in this reference. The following is a tabular statement of the parallel provisions of these six Acts on the subject.

Act III of 1923 Act III of 1899 Act II of 1888 Act IV of 1876 Act VI of 1863 Act XIV of 1866 Section 295 Section 336 Section 202 Section 189 Section 109 Section 5 Section 296 Section 337 Section 210 Section 191 Section 116 Section 9 Section 298 XX XX XX XX XX Rule 2 of Schedule XVI Section 340 Section 223 Section 210 Section 141 Section 35 Section 299 Section 341 Sections 222 & 221 Sections 209 & 208 Sections 140 & 139 Sections 34 & 33

129. The Corporation of Calcutta came to be set up for the first time by Act 4 of 1876. Prior thereto its functions used to be discharged by the Municipal Commissioners under Act 14 of 1856 and by a Corporation named the Justices of the Peace for the Town of Calcutta, under Act 6 of 1863. The first vests public streets in the Municipal Commissioners and the second in the Justices of the Peace for the Town of Calcutta. The other four Acts vest them in the Corporation of Calcutta. Under all these Acts the duty of maintaining the public streets is laid on the authority in which they vest. Section 35 of Act 14 of 1856, S. 141 of Act 6 of 1863, S. 211 of Act 4 of 1876, S. 223 of Act 2 of 1888, S. 340 of Act 3 of 1899 and R. 2 of Schedule XVI of Act 3 of 1923 empower the authority in question to permit the erection of verandahs so as to project over public streets in certain circumstances which however, are not always the same in all the Acts. Section 34 of the Act of 1856 provides for the removal of existing projections by the Commissioners after 30 days’ notice, a reasonable compensation being made payable for such removal whenever the projection was lawfully made. Section 33 entitles the Commissioners to give the owner or occupier 14 days’ notice for the removal of projections made after the passing of the Act and in the event of his failure, the owner or the occupier is liable to a fine not exceeding Rs. 200/- and the Commissioners are empowered to cause its removal. These provisions are retained in Ss. 140 and 139 of the Act of 1863 and in Ss. 209 and 208 of the Act of 1876. Sections 209 and 208, however, of the Act of 1876 for the first time introduce a difference in treatment between projections made before 1st June, 1863 and those made after that date, the Act of 1863 having received the assent of the Governor-General on 12th June, 1863. Sections 222 and 221 of the Act of 1888 are practically identical with Ss. 209 and 208 of its immediate predecessor.

130. Section 5 of the Act of 1899 for the first time specifically sets up three “Municipal authorities” charged with the carrying out of the provisions of the Act. These are first, the Corporation, secondly, the General Committee of the Corporation, and thirdly, the Chairman. Section 341 of the Act not merely corresponds to S. 299 of the Act of 1923, as already shown in the tabular statement, but except for the addition in the later Act of the words “any verandah, platform or other similar structure or between “when” and “any fixture” in S. 341(1) and certain other minor changes of a more or less verbal character, is practically identical with S. 299 of the Act of 1923. Sub-section (3) of S. 341 for the first time clearly lays down that compensation for removal of a structure will be payable in two types of cases, namely first, when the structure etc., to be removed was erected before 1st June, 1863 and secondly, when if erected on or after 1st June, 1863, it was erected “with the consent of any Municipal authority”, though as already pointed out, S. 209 of the Act of 1876 also provided for compensation being paid for the removal of existing structures wherever they had been lawfully made only before 1st June, 1863. Section 341 of the Act of 1899 makes a distinction between structures put up before 1st June, 1863 and those on or after that date and in the case of the first, does not require that they should have been lawfully made compensation being made payable ‘when they had been put up whether lawfully or unlawfully, before that date while in the case of the second, it requires that they should have been made with the consent of any municipal authority duly empowered in that behalf, the use of the expression “any municipal authority duly empowered in that behalf” being easily accounted for by S. 5, though the expression covers the Municipal Commissioners of the Act of 1856, the Justices of the Peace for the Town of Calcutta of the Act of 1863 and the Corporation of Calcutta of the Act of 1876.

131. Section 341(1) of the Act of 1899 en titles the General Committee to require the owner or occupier of a building by a written notice to re move any fixture attached to it so as to form part of it, whether before or after the commencement of the Act, when such fixture causes a projection, encroachment or obstruction over or on a public street. Sub-section (2) provides for the cost of removal, if paid by the occupier though he was not responsible for its erection, being deducted from his rent. Sub-section (3) provides for reasonable compensation being paid to the owner or the occupier where the owner or the occupier proves that the structure was either erected before 1st June, 1863 or erected on or after that date with the consent of any municipal authority duly empowered in that behalf. Then for the first time in the history of the legislation on the subject, the Act of 1899 introduces a new chapter, namely, Chapter XXX entitled “Demolition, alteration and stopping of work”. It consists of 4 sections, namely Ss. 449-452, the first two of which correspond to Ss. 363 and 364 respectively of the Act of 1923, the third to S. 365 and the fourth to S. 536. Sections 449 and 450 of the Act of 1899 which are in reality the precursors of Ss. 363 and 364 of the Act of 1923 represent a distinct advance on the previous legislation in so far as they seek to replace the powers of removal and alteration which in the old Acts vested in the Commissioners, the Justices of the Peace and the Corporation as the case might be, by similar powers to vest in Magistrates who were, before making an order, bound to give the owners and occupiers an opportunity of being heard.

132. The Act of 1923 does not provide for any General Committee of the Corporation. Chapter XXIII of this Act modelled on Chapter XXX of its immediate predecessor is entitled “Demolition, alteration and stopping of unlawful work”. Apart from certain verbal changes which were called for by the abolition of the General Committee and certain other changes of a more or less minor character, there are between Ss. 363 and 364 of the Act of 1923 on the one hand and Ss. 449 and 450 of the Act of 1899 on the other, two important points of difference. In the first place, while there was in Ss. 449 and 450 of the earlier Act no provision which required the Corporation to give the owner an opportunity of being heard before applying to the Magistrate for an order of demolition or alteration, Ss. 363 and 364 introduce such a provision, evidently with the object of avoiding Magisterial proceedings in case the owner should be prepared to abide by the directions of the Corporation or the Corporation should be convinced as to the reasonableness of the owner's objection to those directions. The second important departure in the Act of 1923 from that of 1899 is the prescription of a period of limitation for proceedings before Magistrates under Ss. 363 and 364, there being no such provision in Ss. 449 and 450 or elsewhere in the Act of 1899. There is yet a third point of difference between the provisions in the Act of 1923 and those in Chapter XXX of the Act of 1899. Section 452 of the Act of 1899 lays down that when any person is liable to be directed to demolish work and to pay a fine under the Act, both these directions may be given at the discretion of the Magistrate. In Chapter XXXVII of the Act of 1923 S. 536 which corres ponds to S. 452 of the Act of 1899 is as follows:

“When under this Act or under any rule or bye-law made thereunder any person is liable, in respect of any unlawful work, (a) to pay a fine and (b) to be required to demolish the work, a Magistrate may in his discretion and subject to the provisions of Ss. 363, 364 and 493, direct the said person to pay the fine and also to demolish the work.” In S. 363(1) and in S. 364(1), there is a second proviso in exactly the same terms. This prohibits proceedings under S. 363 or S. 364 where the Corporation have instituted proceedings under S. 463. There is a similar proviso in S. 493 under which proceedings under that section are prohibited where an application has been made under S. 363 or S. 364. Thus, under the Act of 1923 it is not open to the Corporation to proceed both under S. 363 or S. 364 and also under S. 493 while under the Act of 1899, there was no such ban on the Corporation and it was open to a Magistrate at his discretion to direct the payment of a fine and also the demolition of the offending work. It may incidentally be pointed out that even apart from Ss. 449 and 450 of the Act of 1899, there was in that Act S. 342 under which the Chairman could remove any wall, fence, rail, post, platform or other obstruction, projection or encroachment, not being a fixture referred to in S. 341. The corresponding section in the Act of 1923 is S. 300 which entitles the Corporation, after giving notice to the person concerned, to require him to remove any wall and further entitles the Corporation to remove, of its own motion any fence, rail, post, platform or other obstruction, projection or encroachment not being a portion of a building or fixture referred to in S. 299. Where the person required to remove a wall does not do so, he is liable on prosecution under S. 488 to a maximum fine of Rs. 50/- and a daily fine of Rs. 10/-. It is obviously one of the cases contemplated by S. 536.

133. Clearly then, if the Act of 1899 provided for a check on the Corporation's action in the matter of the removal or alteration of any offending structure in the form of a Magisterial scrutiny, the Act of 1923 goes further in the same direction in the first place by providing for a notice on the owner before the Corporation could move a Magistrate, in the second by prescribing a period of limitation for proceedings under Ss. 363 and 364 and in the third by banning action both for removal or alteration and for fine where the Act permits both, so as to restrict the Corporation to either of the two courses. The evident drift of all these three innovations in the Act of 1923 was towards safeguarding the legitimate interests of owners and occupiers side by side with securing legitimate facilities to the Corporation for the discharge of its duties in the matter.

134. There has always been a period of limitation for prosecutions for offences under the different Acts governing the municipal administration of Calcutta since 1856. Section 139 of Act XIV of 1856 made it three months from the commission of the offence, but S. 235 of Act 6 of 1863 reduced it to two months from that date. Section 351 of Act 4 of 1876 retains the same provision but adds a proviso to the effect that the failure to take out any licence under the Act will be deemed to be a continuing offence until the expiry of the period for which the licence is required to be taken out. Section 419 of Act II of 1888 increases the period to three months but retains the proviso introduced in S. 351 of its immediate predecessor. Section 631 of Act III of 1899 makes the period of limitation three months for prosecution for all offences under the Act, rule, bye-law or regulation made under the Act except offences under S. 156 in which case the period is 6 months. The proviso is still there. Section 534 of the Act of 1923 ret???ns the same provision in a somewhat modified form. It is, therefore, clear that from the very beginning there were provisions for prosecution for offences under the Act and there has always been a provision prescribing the period of limitation for such prosecutions, and that the periods prescribed by the different Acts varied between two and six months.

135. It is thus clear that from the very beginning provisions for prosecution existed side by side with provisions for removal or alteration of offending structures and while from the very beginning there has been a period prescribed for the limitation of such prosecutions, there has been none for the exercise of the powers of removal or alteration of the offending structures and even in the Act of 1899 when the powers of removal or alteration were transferred from the Corporation to Magistrates, no period of limitation was prescribed. When, therefore, a period of limitation is for the first time prescribed in Ss. 363 and 364 of the Act of 1923 for proceedings under those sections for orders of demolition or alteration, it must be held to mark a very important new departure from the old law on the subject. The significance of this new departure becomes the clearer from the retention of a period of limitation for the exercise of powers of removal and alteration in Act XXXIII of 1951 which replaced the Act of 1923. In Ch. XXIV of that Act there are three provisions corresponding to Ss. 363-365 of the Act of 1923. By these provisions the power of ordering demolition, etc., is transferred from Magistrates to the Commissioner of the Corporation and the period of limitation is raised from five to twelve years.

136. The idea underlying all provisions prescribing periods of limitation is to confine controversies within certain fixed limits of time so as to compel the parties interested in raising the controversies before the tribunals specified, to exercise due vigilance in order that their remedies may not be barred by lapse of the time prescribed. The reason therefore, for the prescription of a period of limitation in Ss. 363 and 364 of the Act of 1923 must have been a discovery on the part of the Legislature that the Corporation entitled to move at any time it pleased, did not usually move at all till it was too late, not for movement but for effective” movement. In other words it must have found out that without such a provision, the desired watchfulness on the part of the Corporation could not be secured and that belated action apart from being often infructuous because of the disappearance of evidence by lapse of time, tends to put owners and occupiers into difficulties, particularly when the building in question had changed hands. What the Legislature may in the circumstances be reasonably supposed to have sought to ensure in 1923 by prescribing a period of limitation for proceedings under Ss. 363 and 364 was that constant vigilance on the part of the Corporation without which it is impossible for them to find out the offending structures and to take steps for their demolition or alteration and if in the Act of 1951, it vested in Commissioner of the. Corporation the powers of ordering demolition or alteration which the Acts of 1899 and of 1923 had vested in Magistrates, it did not do away with the provision for limitation altogether but raised it from five to twelve years so as to give the Corporation a much longer period in which to detect and to take action as to offending structures.

137. It seems to me reasonably clear from the above analysis that when the Act of 1923 re-shaped the provisions of the Act of 1899 relating to the demolition or alteration of offending structures, the problem it set out to solve was how best to reconcil the interests of the owners and occupiers of buildings with those of the Corporation which after all represented the interests of the public and had to carry out its legal duties for safeguarding those interests in the most effective way possible and while on the one hand, by making it impossible for the Corporation to act at all unless it acted within the time prescribed and again by preventing its recourse to both the courses of action permissible under the Act and by restricting it to either of these courses, it sought to secure a reasonable care and vigilance on the part of the Corporation, on the other by putting to rest all controversies in the matter at the end of the prescribed period, it sought to remove from the mind of the owners and occupiers of offending structures all feelings of uncertainty.

138. The precise terms of Ss. 363 and 364 may now be examined. Section 363(1) consists of three clauses. The first deals with the erection of a new building first, when it is commenced without obtaining the written permission of the Corporation, secondly when it is being carried on or has been completed otherwise than in accordance with the particulars in which such permission is based and thirdly when it is being carried on or has been completed in breach of any provision of the Act, of any rules or bye-laws framed under it or of any direction or requisition lawfully given or made under the Act, or under such rules or bye-laws. The second sub-clause and the third thus relate to the continuance or completion of a new building in contravention of the law and therefore, to new building work which is clearly illegal. Section 319 lays down that no new building shall be erected otherwise than in accordance with the provisions of Ch. XXI where the section occurs and of Sch. XVII and any orders, rules or bye-laws made under the Act, relating to the use of building sites or the erection of new buildings. Rules 52-62 of Sch. XVII provide for an application for written permission to begin the erection of a new building, for the particulars and the plans to be submitted with the application and for the written permission of the Corporation. Where therefore, the erection of a new building begins without permission of the Corporation, it is clearly in violation of the law. Evidently then, the first clause deals with a class of cases where the commencement, the continuance or the completion of the erection of new buildings is illegal. The second clause of S. 363(1) deals with the alteration of or for addition to any building or any other work done or made for any purpose, to or on a building, when it has been commenced, is being carried on or has been completed in breach of or otherwise than in accordance with any sanction granted under Ss. 330, 340 or 341. Section 330 makes the rules applicable to new buildings also applicable, subject to certain modifications, to alterations and additions and R. 92 of Sch. XVII mentions the cases where Rr. 52 to 65 of this Schedule will apply. The second clause of S. 363(1) is thus evidently limited to the cases where according to R. 92, Rr. 52-65 will apply, for in other cases no sanction being necessary, the question can hardly arise of any breach or variation of its terms. Clearly, therefore, this clause also contemplates a type of cases where the commencement, the continuance or the completion of the alterations, additions or the other building work is illegal. The third clause of S. 363(1) deals with the failure of the owner to carry out duly the alterations required under a notice issued by the Corporation under R. 22 of Sch. XVII after an inspection of the building under R. 21. Such an inspection is permissible under R. 21 either during the progress of the building work or at its completion if there is completion report under R. 20. A notice under R. 22 can issue only if it is found that the building is being or has been erected otherwise than in accordance with the approved plans or in a way so as to contravene any of the provisions of the Act or any rules or bye-laws under it. The necessity for the alterations required under the notice arises from the fact that the construction goes on or is completed in violation of the sanctioned plans or of some rules or bye-laws. Thus if the owner's failure to carry out the alterations is an illegal omission, it clearly arises from a prior illegality, namely the carrying on or the completion of the building in violation of the law. There is thus involved in this third clause, a double illegality. Clearly then S. 363(1) contemplates in all its three clauses work connected with the erection of a new building or with alterations of or additions to or any other work, in to or on, any existing building, when the commencement, the continuance or the completion of the work is illegal.

139. Sub-section (2) of S. 363 is as follows: “Notwithstanding anything Contained in sub-s. (1), no proceeding shall be instituted thereunder in respect of any work which has been done more than five years before the institution of such proceedings: Provided that the onus of proving that the work was done more than five years previously shall lie on the owner.” The meaning of this sub-section is too clear to be in need of any elucidation beyond this that the work referred to here must necessarily be the work spoken of in sub-s. (1), because the proceedings mentioned are proceedings under sub-s. (1). That sub-section, as already pointed out, contemplates building work which has been commenced, is being carried on or has been completed in contravention of the law or in other words, work which is illegal from the beginning or becomes illegal either during its progress or at its completion. This, in my judgment, is a matter of prime importance which has got to be borne in mind in deciding what changes may be really called for in sub-s. (2) of S. 363 when it has to be applied to proceedings under S. 364(1). This will have to be reverted to when a careful examination of the different clauses of S. 364(1) has prepared us for a probe into the terms of S. 364(2) in our search for its true meaning. It will suffice here to say that the rule of limitation which is laid down in S. 363(2) makes the time when the work is done the starting point of limitation and the work referred to in sub-s. (1) and therefore, necessarily in sub-s. (2) also, as already seen, is work which is illegal. In other words, as far as proceedings under any of the clauses of sub-s. (1) of S. 363 go, limitation begins to run from the time when the illegal work is done. This will be so, even in a case falling within cl. (3) of S. 363(1) where, if one might say so, the Corporation's right of action does not arise till the time mentioned in the notice under R. 22 of Sch. XVII for making the alterations has expired, because as far as proceedings under S. 363(1) are concerned, there is nothing at all which entitles the Court to make changes in the terms of S. 363(2) so as to adapt it to the proceedings in question, as there is in the case of proceedings under S. 364(1).

140. Section 364(1) consists of ten clauses and though in this reference we are concerned directly with the first of these ten clauses, the true meaning of sub-s. (2) of S. 364 which applies equally to all the clauses, being really the subject of our inquiry, an examination of all the ten is essential. It will be convenient to begin with cl. (2) and end with cl. (1).

141. Clause: (2) provides for a case where the owner of a building erected or added to between a street alignment and the building line fails to re move such building or addition when called upon to do so under S. 303(3). This clause appears to have been somewhat carelessly drafted, unless of course, S. 303(3) mentioned in it is a misprint for S. 303(4). Section 302 empowers the Corporation to prescribe for any public street a building line and a street alignment or both a building line and a street alignment. This order requires publication in the official Gazette and it has effect from the date of its publication. Section 303(1) lays down that no portion of a building or boundary wall shall be erected or added to within a street alignment prescribed under S. 302, provided that the Corporation may, in its discretion, permit additions to a building to be made within a street alignment, if such additions merely add to the height of and rest upon, an existing building or wall, on the owner executing, if required to do so by the Corporation, an agreement binding himself and his successors-in-interest not to claim compensation in the event of the Corporation at any time thereafter calling upon him or his successors by written notice to remove any additions made to any building in pursuance of such permission or any portion thereof and to pay the expenses of such removal. Sub-section (2) of S. 303 relates to the payment of compensation by the Corporation to the owner of the site if the permission asked for is refused and if the site which partly or wholly falls within the street alignment is not partly or wholly acquired within six months of such refusal. Sub-section (3) prohibits the erection of or addition to any building between a street alignment and the building line without first obtaining the permission of the Corporation to do so. There is, however, a proviso that for the erection of a porch or balcony or an outhouse not exceeding 15’ in height and along not more than one-third of the frontage, no permission is necessary. This sub-section which is mentioned in the second clause of S. 364(1) does not at all empower the Corporation to require an owner to remove a building. Sub-section (4) provides that if the Corporation grants permission under sub-s. (3) it may require the owner to execute an agreement in accordance with the proviso to sub-s. (1). That agreement, as already stated, entitles the Corporation to require the owner to remove the addition. Clause (3) of S. 364 (I) deals with a, case where a person making any additions to a building in pursuance of an agreement under the proviso to S. 303 (I) fails to remove such additions when called upon to do so by the Corporation. It is, therefore, clear that while cl. (2) of S. 364(1) provides for a case of failure or omission on the part of the owner to comply with a notice not really under S. 303(3) but under the terms of the agreement executed under sub-s. (4) of S. 303, for the removal of a building or additions thereto between a street alignment and the building line, cl. (3) of S. 364(1) deals with a case of failure or omission on the part of the owner to comply with a similar notice to remove a building or additions thereto within a street alignment. Clearly therefore, both the clauses contemplate cases where the erection of the building or the additions thereto is not by itself illegal and what comes to be illegal is the owner's omission to comply with the notice within the time prescribed therein. Both of them therefore, deal with cases of illegal omission. In case the building or the addition should be illegal for lack of permission wherever it is necessary or for contravention of the terms of the permission, the case would fall within either S. 363(1) (1) or 363(1) (2).

142. Clause (4) of S. 364(1) deals with a case where the owner of a building erected or added to under S. 309 fails to remove the building or the addition when called upon to do so by the Corporation. Section 309 makes Ss. 302 and 303 applicable to projected streets so that the fourth clause of S. 364(1) covers cases similar in nature to those covered by the second and the third clauses, the only difference between them being that while the fourth clause applies to constructions within the street alignment or between the street alignment and the building line of projected streets, the second and the third apply to constructions within the street alignment or between the street alignment and the building line of existing public streets. Consequently in this case also, the erection or the addition is not in itself illegal, but when the owner does not remove it in compliance with the notice of the Corporation to do so, there is an illegal omission on his part on the expiry of the date by which it is to be removed.

143. Clause (5) of S. 364(1) deals with a case where the owner of a building unfit for human habitation fails to demolish it when required to do so under S. 382(2). Section 381 entitles the Corporation after notice to the owner and the occupier, where it thinks any building intended or used as a dwelling place to be unfit for human habitation, to apply to the Magistrate for an order prohibiting the further use of such a building for such a purpose. Under S. 382 when such an order has been passed and has remained in force for 3 months, the Corporation may consider the question of its demolition after notice to the owner and the occupier and if upon such consideration, it is of opinion that it has not been made fit for human habitation and that the necessary steps are not being taken with the diligence to render it fit for that purpose, it shall serve a notice on the owner and the occupier requiring them to demolish the building. Evidently then, in this case also it is not till the date by which the building is required to be demolished has expired, that there is an illegal omission on the part of the owner, there being nothing illegal till the expiry of that date.

144. Clause (6) of S. 364(1) provides for a case of a privy or urinal being placed in contravention of R. 21 or R. 22(1) of Sch. XV. This schedule contains the rules as to drains, privies and urinals. Rules 1-18 relate to drains and Rr. 19-38 to privies and urinals. Both R. 21 and R. 22(1) deal with service privies and service urinals. The first prohibits the placing of such privies or urinals more than 11’ high at the space to be left vacant at the back of a building, the placing of such a privy or urinal within less than six feet of a public building, a dwelling place, a kitchen, or any place where any person is or is intended to be employed in any manufacture, trade or business. The second prohibits the placing of such a privy or urinal on any upper floor of a building, except where the Corporation thinks it impracticable or inexpedient to provide a connected privy or connected urinal when it can, by written notice, authorise the owner to erect the service privy or the service urinal. Evidently then, this clause contemplates the illegal placing of a service privy or service urinal in contravention of R. 21 or R. 22(1). The work done therefore, is clearly itself illegal, and does not require the owner's non-compliance with-any notice from the Corporation to make it so.

145. Clauses (7) and (8) of S. 364(1) may conveniently be taken up together, because they deal with the owner's or the occupier's non-compliance with a notice under two different parts of R. 2 of Sch. XVI within the period prescribed in the notice. In cl. (7) the notice is under R. 2(5) and in cl. (8), it is under R. 2(6). The different parts of this rule have been already dealt with at the very be ginning. The construction of a veranda under a written permission which imposes one or more conditions, without satisfying the conditions is illegal, so that when the Corporation by a notice requires the owner to comply with the condition and the owner fails to comply, there is an illegal omission on his part and this illegal omission arises from a prior illegality, namely the construction of the veranda without satisfying the conditions imposed. In the other case, the construction of the veranda is not at all illegal or unauthorised and there is clearly an illegal omission on the owner's part when he fails to remove the projection by the date mentioned in the notice. The second of these cases, therefore, must be held to be a case of illegal omission, while in the first, there is an illegal work followed by an illegal omission.

146. Clause (9) of S. 364(1) relates to a case where the owner of a building does not, within the period mentioned in a notice under R. 7(2) of Sch. XVII, remove or alter an external roof or wall made of inflammable material. Rule 7(1) of that schedule prohibits external roofs or walls of buildings being made of grass, leaves, mats, canvass or other inflammable materials and then sub-r. (2) of R. 7 lays down that the Corporation may by written notice require the owner of any building situated within a distance of 30’ from any other building and having at the commencement of the Act of 1923 an external roof or wall made of any such inflammable material, to remove or alter such roof or wall. As pointed out by My Lord Das Gupta, J., S. 36 of Act XIV of 1856, S. 142 of Act VI of 1863 and S. 224 of Act II of 1888 prohibited the use of inflammable material in the making of external walls or roofs and made a contravention of the rule an offence punishable with fine. There was, however, no such provision in Act IV of 1876. Section 368 of Act III of 1899 prohibited the use of such materials in the construction of external walls and roofs and S. 574 made it a penal offence. But, it made an exception in the case of bamboo shingle and wood and also in the case of certain structures and structures with walls and roofs made of inflammable material in certain areas. In R. 7(3) of Sch. XVII of the Act of 1923, the provisions making exceptions in the case of bamboo shingle or wood and of certain structures are retained, subject to the reservation that when the Corporation in any particular case thought the structure dangerous these exceptions would not: apply. The exception about such structures in the areas specified in the earlier Act was deleted, so that at the commencement of the Act of 1923, such structures in those areas came to be within the purview of the rule. This also is thus a clear case of an illegal omission on the part of the owner on the expiry of the period mentioned in the notice.

147. Clause (10) of S. 364(1) covers a case where an owner or occupier neglects to execute any works or to take up any measures required by any notice affixed under R. 6(1) of Sch. XVIII. This rule empowers the Corporation when any building or block of buildings is likely, for reasons mentioned in the rule, to endanger the public health, the health of the occupiers or the neighbours, to require the owner, the occupier or at the option of the Corporation, the owner of the land on which the building or the block of buildings stands, to execute such works or to take such measures as the Corporation considers necessary for the prevention of the risks to public health, the health of the occupiers or the neighbours. Clearly therefore, the insanitary conditions which constitute a menace to the public health, the health of the occupiers or the neighbours, bad as they may be, do not by themselves amount to an illegal work but what comes to be illegal is the negligence or failure of the owner, the occupier or the owner of the land, as the case may be, to execute the works or to take the measures as directed by the Corporation and this evidently is an illegal omission on the expiry of the period mentioned in the notice. Though the tenth clause of S. 364(1) does not speak of any period in the notice, S. 510(1) (a) requires the Corporation to prescribe a reasonable period in every written notice by which a requisition or order is made under the Act by the Corporation or any municipal officer empowered under S. 12.

148. An examination of all the clauses of S. 364(1) beginning from cl. (2) thus shows that all of them except cl. (6) and cl. (7) contemplate cases where there is an omission or negligence on the part of the owner, occupier and in one case, also the owner of the land, to do within a prescribed period things which the Corporation by written notice calls upon him to do and as the Corporation is legally entitled under the rules referred to in the different clauses to make such requisitions or orders by written notices, such omission or negligence on the part of the owner, the occupier or the owner of the land is clearly illegal, to the extent of entitling the Corporation to ask for Magisterial intervention for setting matters right. Clause (6) on the contrary contemplates a case where the placing of a service privy or urinal in contravention of the rules is in itself illegal or unauthorised so as to justify the Corporation in approaching the Magistrate for intervention without any further notice requiring the owner or the occupier to do anything, apart of course, from a notice under the proviso to S. 364(1) itself. Clause (7) is a combination of an illegal work and an illegal omission, the illegal omission arising as a consequence of the illegal work.

149. As the first clause of S. 364(1) stands, it is in form at least very similar to all the other clauses save and except el. (6), so that at first sight at any rate the omission on the part of the owner or occupier to remove or alter the projection, etc., within the period prescribed in the notice under S. 299(1) would appear to give the Corporation the right of applying to the Magistrate. In other words, it is this omission above which at first sight would appear illegal. The position, however, as far as this clause is concerned, is not quite so simple. A veranda, platform, etc., attached to a building so as to form part of it comes within the mischief of S. 299(1) and therefore, of the first clause of S. 364(1) only when it causes a projection, etc., Over a public street. It may cause such a projection, etc., in a variety of circumstances. The projection, etc., may be caused at the time of the construction of the building by the owner or the occupier acting otherwise than in accordance with the sanctioned plan. It may also be caused subsequently to the construction of the building by the addition of a veranda without any sanctioned plan or otherwise than in accordance with the sanctioned plan. In both of these cases the construction of the veranda, etc., which causes the projection etc., over the public street is from the very beginning unauthorised or illegal and the expiry of the period of the notice prescribed in the notice under S. 299(1) cannot possibly make it any more illegal than it was at the beginning. On the other hand, the veranda, etc., may not cause any projection, etc., at all over a public street at the time of its construction, either because the street was non-existent or not wide enough at the time and the projection, etc., is subsequently caused because of the opening of the street or because of its widening after the construction of the veranda, etc. In such a case, the construction of the veranda would be perfectly legal at the time of its construction and there would be no obligation at all on the owner or the occupier to remove it till the Corporation calls upon him to do so by a notice under S. 299(1). In other words it is only when he fails to remove it within the period specified in the notice that there is an illegal omission on his part. Clause (1) of S. 364(1) thus clearly covers two distinct classes of cases, namely first, cases where the structures in question are illegal or unauthorised from the very beginning and secondly those, in which they are not illegal at the beginning but in which the owner's failure to remove or alter them within the period specified by the Corporation in its notice under S. 299(1) gives rise to an illegal omission on his part. From this point of view, cl. (1) reflects within itself the broad division marked on the one hand by cls. (2), (3), (4), (5), (8), (9) and (10) and on the, other by cls. (6) and (7). If of course, it were possible to limit the application of S. 299(1) only to cases where the veranda, etc., does not cause a projection, etc., to a public street at the time of its construction but causes it later so as to render the owner's omission to remove or alter it within the time specified in the notice under S. 299(1) an illegal omission, cl. (1) of S. 364 would necessarily be confined to one class of cases only, but S. 299(1) is couched in such general terms that it is impossible to restrict its operation to one class of cases only without doing violence to its language.

150. On an analysis of S. 363(1) and 364(1) therefore, it is clear that the first contemplates a type of cases where the work done is illegal at the time when it is done and the second contemplates two types of cases, in one of which the work done is illegal at the time when it is done and in the other of which it is not illegal when it is done, but the failure of the owner or the occupier to comply with the directions of the Corporation's notice within the time prescribed therein gives rise to an illegal omission on his part. It is further clear that though cl. (3) of S. 363(1) speaks of an omission on the part of the owner to make certain alterations in accordance with a notice under R. 22 of Sch. XVII, this illegal omission on his part arises from a prior illegality in the work itself. It is also clear that cl. (1) of S. 364(1) embodies within itself the broad division marked on the one hand by cls. (6) and (7) and on the other by the rest of the clauses. An examination of the terms of S. 363(2) has already revealed that as far as proceedings under S. 363(1) go including proceedings under cl. (3) of S. 363(1) limitation begins to run from the time when the illegal work is done. Evidently the same rule will apply to proceedings under cl. (6) of S. 364(1), for that, as already seen deals with cases where the work done, namely, the placing of service privies or service urinals in contravention of the rules bearing on them, is illegal at the time when it is done. In that class of cases no changes in S. 363(2) are accordingly called for. In proceedings under cls. (2)-(5) and (8)-(10), as already shown, the work done is not illegal at the time-when it is done but there is an illegal omission on the part of the owner to comply with the notice of the Corporation within the time specified. This in my opinion, furnishes the key to the changes required in S. 363(2) before it can be applied to such proceedings and all that becomes necessary for the application of S. 363(2) to proceedings under cls. (2)-(5) and cls. (8)-(10) of S. 364(1) is to read “omitted to be done” in place of “done” in “work which has been done”. This change, suggested by the nature of the proceedings to which S. 363(2) has to be applied, appears to be justified also by the rule of interpretation laid down in Section 3(2) of the Bengal General Clauses Act which provides that the word “act” used with reference to an offence or a civil wrong shall include a series of acts and words which refer to acts done shall extend also to illegal omissions. Section 363(2) undoubtedly does not make use of the word “act” but it uses the expression “work which has been done”. That, as already-shown, means “work which has been illegally done”. “Work illegally done” is only another mode of expressing the same thing as an illegal act and therefore, the words “work which has been done” must be held to be words which refer to acts done and so on the rule of interpretation embodied in Section 3(2) of the Bengal General Clauses Act, they extend to illegal omissions. The starting point of limitation therefore, for the cases coming within cls. (2)-(5) and cls. (8)-(10) is the date by which the specific work as directed by the Corporation is to be done and is illegally omitted to be done or left undone. As cl. (1) covers both types of cases, it must necessarily follow that for the class of cases where the work is illegal at the time when it is done, no changes are called for in the words of S. 363(2) to make it applicable to the proceedings: and for the other class, namely where there is only an illegal omission, the only change necessary is exactly what the proceedings under cls. (2)-(5) and cls. (8)-(10) call for, namely that for the word “done” in “work which has been done” should be read “omitted to be done”. The only possible objection to this, as argued on behalf of the Corporation, is that if this construction is adopted, no change at all is necessary for one class of proceedings under cl. (1) while for another class of proceedings under the same clause, a change is necessary. That objection is hardly tenable because mutatis mutandis in S. 364(2) means “those changes being made which must be made” and it follows from this that none can be made where none need be made. Besides, the phrase qualifies the expression “apply to the institution of proceedings” and this in my view can mean only that the changes to be made must have reference to the proceedings to which the section has to be applied and not to the particular clause under which the particular proceeding may be instituted.

151. This by itself, does not solve the real difficulty we are confronted with, though to me it appears to put us fairly on the road to its solution. As S. 299(1) is not limited to cases where the veranda, etc., causes no projection, etc., over a public street at the time of its construction but does so only at a later stage, it is quite conceivable and this is precisely what happened in the case out of which this reference arises, that the Corporation issues a notice under S. 299(1) in a case where the veranda caused a projection over a public street at the time of its construction. In such a case the work done is illegal at the time when it is done. At the same time as the Corporation is entitled to issue a notice under S. 299(1) even in this case, the non-compliance of the owner or occupier with it within the time specified gives rise to an illegal omission on the expiry of that time. The problem arising under cl. (7) of S. 364(1) is exactly the same. The question naturally arises if in such a case time begins to run from the erection or from the date of expiry of the time mentioned in the notice. The essence of S. 363(2) is, as already pointed out, that the illegality of the work fixes the starting point of limitation and as further pointed out already, where there is no illegality in the work at the time when it is done but there is an illegal omission at a later stage, S. 363(2), as adapted for application to the relevant proceedings under S. 364(1) makes the illegality of the omission this starting point. The question, however, still remains what is to happen when there is a combination of both. For a correct answer to this question, the relation between the illegal work and the illegal omission has to be examined. If a construction is illegal from the very beginning, nothing that the Owner may leave undone with respect to it can make it any more illegal than it ever was, so that by his omission to carry out the directions of the Corporation in its notice under S. 299(1) or under R. 2(5) of Sch. XVI the owner or the occupier does not become guilty of a fresh illegality, though at best he might be guilty of an aggravation of the original illegality committed by him, by his refusal to remove or alter the offending structure or to comply with the condition on which permission to erect a veranda was given. Even if the subsequent omission amounts to a fresh illegality, it clearly stems from the original illegality in the sense that were there no projection at the time of the construction of the veranda or were there no construction of a veranda without satisfying the conditions imposed, there would be no notice under S. 299(1) or under R. 2(5) of Sch. XVI and there would be no illegal omission on the part of the owner or the occupier. Clearly then, this subsequent illegal omission which flows out of the illegality committed at the time of the construction of the veranda and continuing so long as it is not removed or altered in accordance with the directions of the Corporation in its notice under S. 299(1) and so long as the condition imposed under R. 2(5) of Sch. XVI is not satisfied is in its nature derivative or secondary. The question therefore, to be answered in a case of this nature boils down to this: Does limitation run from the primary or the secondary illegality? Where there is an initial illegality in the construction itself, followed by an illegal omission as a necessary consequence thereof, to count limitation from the subsequent illegal omission inevitably means an extension of the period of limitation as counted from the initial illegality and this extension amounts really to a relaxation of the rule. If the principal object of introducing the provision for limitation in the Act of 1923 for the first time was to ensure constant vigilance on the part of the Corporation in the discharge of its duties, one of which was to maintain public streets in a state so as to conduce to public convenience and at the same time to put owners and occupiers of offending structures at their case by bringing the controversy to an end on the expiry of the period specified, as I think it must be held to be, such a relaxation of the rule of limitation, unless it appears from the words used, to have been clearly intended, cannot be inferred. In my judgment, there is nothing in the words of either S. 363(2) or of S. 364(2) to suggest that any such relaxation of the rule was intended.

152. At this stage it is necessary to examine one of the arguments on behalf of the Corporation in support of its plea that time will run from the expiry of the period prescribed in the notice under S. 299(1) even where the erection of the veranda is itself illegal or unauthorised. The other argument on behalf of the Corporation that the application of the rule to limit proceedings to five years since construction will in a large majority of cases lead to the absurdity that this period of five years will elapse before the Corporation can even be aware of the necessity of its removal or alteration has been exhaustively dealt with by My Lord, Das Gupta, J. I respectfully agree with his conclusion that that contention is not tenable and for the reasons given by him.

153. The argument in question is that S. 299 is a special provision dealing with verandas, etc., attached to buildings so as to form part thereof and overriding the general provisions relating to buildings, so much so that if their erection itself is unauthorised or illegal in the sense that they cause projections, etc., over public streets even at the time of their erection, the taint of that original sin will not stick to them and they will always be governed by S. 299 to the exclusion of other sections relating to buildings in general, and consequently, time will always run in their case from the date of expiry of the period of the notice under S. 299(1). Let us examine the soundness of this proposition. The general provisions relating to buildings occur in Ch. XXI. Section 319, the very first section of that chapter, provides that no new buildings shall be constructed otherwise than in accordance with the provisions of Ch. XXI, Sch. XVII and any orders, rules or bye-laws made under the Act relating to the use of building sites or the erection of new buildings. The provisions relating to streets and public places occur in the chapter immediately preceding it. The general subject-matter of the two chapters is thus totally different. In a sense both the chapters contain general rules, the one about streets and public places and the other about buildings and in another sense both contain special provisions, the one about streets specially and the other about buildings specially. There was no division of the Acts of 1856 and 1863 into chapters and parts and if in the later Act, the provisions relating to buildings, streets, drainage, etc., bear a general heading “General Conservancy of the Town and works for a supply of water”, from the earlier even this is absent. In the Act of 1876 for the first time, the provisions for streets occur in a part different from that where the provisions for buildings occur, though both occur in Ch. XL This chapter bears the general heading “Of Conservancy and Improvement” and consists of five parts, part I dealing with streets, part II with drains, part III with general conservancy, part IV with buildings and part V with sanitary measures for block of public huts. Chapter X of the Act of 1888 follows with some modifications the scheme of Ch. XI of its predecessor. The Act of 1899 for the first time devotes one separate chapter namely Ch. XXIII to streets and public places and the following chapter to buildings. The Act of 1923 substantially follows the scheme of its immediate predecessor. There is nothing in any of these Acts to indicate that in the chapter or part dealing with buildings the Legislature was laying down certain general rules as regards buildings while anything elsewhere in the Act which in any way related to buildings was meant to be treated as a special provision overriding the general.

154. The contention seems to assume that there is inconsistency between S. 299(1) and any other provision in the Act dealing with buildings, for if there is no inconsistency at all between two provisions and if both can be given effect to according to their plain meaning, the question of one of them overriding the other hardly arises. There is no repugnancy whatever between S. 299(1) and any of the provisions relating to buildings and consequently the Court is bound to give effect to all the provisions according to their natural meaning. It must accordingly be held that there is no substance in this argument.

155. It has been already pointed out that the words of either S. 363(2) or S. 364(2) do not indicate that the Legislature intended any relaxation of the rule of limitation it was laying down; far less can it be held that it could have intended any such relaxation of the rule of limitation at the sweet will of the Corporation on which was imposed the statutory duty of looking after the maintenance of public streets, for that would be the precise effect of the view that where there is a primary illegality followed by a secondary illegality in the form of an illegal omission as a necessary consequence of the primary illegality the Corporation by merely issuing a notice under S. 299(1) would be entitled to give itself the benefit of a new starting point of limitation, thereby taking advantage of its own laches.

156. A close examination of the terms of Ss. 363(1) and 364(1) would go to show that the two were not meant to be mutually exclusive and there is a certain amount of overlapping which is perhaps the price the draftsman had to pay for his anxiety to make the two sections exhaustive of all cases where the Corporation could probably invoke the intervention of the Magistrate. That such an overlapping was not beyond the contemplation of the Legislature appears clearly from the fact that while in S. 493, the opening clause reproduces almost word for word cls. (1) and (2) of S. 363(1), the proviso thereto mentions both Ss. 363 and 364. What is contemplated in cl. (6), for example, of S. 364(1) may easily occur during the erection of a new building or during alterations or additions to an existing building. Similarly a veranda or other structure attached to a building so as to form part of it may cause a projection, etc., over a public street at the time of the erection of a new building or at the time of alterations or additions to an existing building. In all such cases, S. 363(1) (1) or 363(1) (2) will be as much applicable as cl. (6) or cl. (1) of S. 364(1). If the first is applied, the starting point of limitation would be the date when the work is done; in the case where cl. (6) of S. 364(1) applies, there will be the same starting point but where S. 299(1) applies, the starting point is the date when the period mentioned in the notice under S. 299 expires so that there would be two starting points for the same work according as the proceeding is under S. 363(1) or 364(1), cl. (1). The Legislature, in the absence of anything to show that, cannot be taken to have intended such an anomaly.

157. The essence of the rule of limitation laid down by S. 363(2) being, as already explained, that time begins to run from the doing of the illegal work, that has got to be left unimpaired when the rule is applied, with necessary modifications of course, but not modifications that affect the real essence of the rule, to proceedings under S. 364(1). When therefore, the work done is itself illegal and when after the illegal work has been done the Corporation serves a notice for setting matters right and the owner or the occupier fails to comply with the directions in the notice within the period mentioned in it, so as to give rise to an illegal omission on his part on the expiry of the period, this second illegality is really a continuation of the first or if strictly speaking, it cannot be held to be a continuation of the first, it must at any rate be held to derive from the first so as to amount at best to a secondary illegality, the first being primary. Limitation begins in my judgment in such a case from the date of the primary illegality and not of the secondary illegality. In other cases where there is a single illegality either in the shape of a piece of illegal work or in the shape of an illegal omission, time runs from the doing of the illegal work or from the date when on the expiry of the period mentioned in the relevant notice the illegal omission occurs.

158. For the purposes of this case, it is not necessary to go into the question whether an illegal omission such as is contemplated in S. 364(1) is what is known to be a continuing wrong and whether if it is, the principle of Section 23 of the Limitation Act, though it is made by S. 29 of that Act inapplicable to cases for which the rule of limitation is laid down in special or local Acts, can still be invoked.

159. For the reasons given, I agree with the answers given by My Lord Das Gupta, J., to the two questions re-formulated by this Bench and also with the order passed by him discharging the rule.

160. Rule discharged.