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1916 Supreme(SC) 49
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER L.C., LORD ATKINSON, AND SIR JOHN EDGE.
JOSEPH - Appellant
Versus
CALCUTTA CORPORATION - Respondents
On Appeal from the High Court in Bengal.
Decided On : July. 17. 1916.
Solicitors for appellants :Watkins & Hunter. Solicitors for respondents: Orr, Dignam & Co.
Compensation for the removal of fixtures under the municipal act is not a condition precedent to demolition, as damage is suffered only after removal. Disputed compensation amounts must be determined by the Court of Small Causes, though a declaration of the right to compensation may be granted.
Headnote:(A) Calcutta Municipal Act, 1899 - Section 341(3) - Compensation for removal of fixtures - Condition precedent - The provision for compensation to a person who "suffers damage" by the removal of a fixture does not make the assessment or payment of compensation a condition precedent to the demolition of such structures. Until the removal is effected, no damage is in fact suffered; therefore, the statute does not support a claim that compensation must be paid prior to demolition.
(B) Calcutta Municipal Act, 1899 - Section 617 - Jurisdiction for assessment of compensation - Where a municipal authority is required by the Act to pay compensation and a dispute arises regarding the amount, such amount shall be determined by the Court of Small Causes. This jurisdiction applies to claims by individuals against the municipal authority, and the determination of the amount is not cognizable by other civil courts.
(C) Specific Relief Act - Section 42 - Declaration of right - A party is entitled to seek a declaration regarding the date of erection of structures and their entitlement to compensation when the authority denies such rights and demolition orders are pending, as this seriously affects the party's right of property.
Facts of the case:
The owners of a bazaar had structures erected over drains. The municipal authority served notices for their removal. The owners instituted a suit seeking a declaration that the structures were erected before June 1, 1863, that they were entitled to compensation, and that such compensation must be paid before removal. They further requested the court to fix the amount of compensation and grant an injunction. The subordinate court ruled in favor of the owners, but the High Court reversed the decree, holding that compensation is not a condition precedent to removal and that the amount must be assessed by the Court of Small Causes.
Findings of Court:
The court found that the municipal act does not render the assessment of compensation a condition precedent to demolition. It also held that the fixing of compensation in case of dispute is placed exclusively within the jurisdiction of the Court of Small Causes. However, the court found that the owners were entitled to a declaration regarding the date of erection and their right to compensation under the Specific Relief Act.
Issues: Whether the assessment of compensation is a condition precedent to the demolition of structures under Section 341 of the municipal act; whether the determination of the amount of compensation falls exclusively within the jurisdiction of the Court of Small Causes under Section 617; and whether the owners were entitled to a declaration of their right to compensation.
Ratio Decidendi: The phrase "suffers damage by the removal" indicates that damage occurs only after the removal is carried out; thus, payment cannot be a condition precedent to the act of demolition. Furthermore, the statutory language explicitly assigns the determination of disputed compensation amounts to the Court of Small Causes. A declaration of right is appropriate when property rights are threatened by the denial of entitlement to compensation.
Result: Decree of the High Court amended to include the admission that the structures were erected before June 1, 1863, and that the appellants are entitled to be paid reasonable compensation for the loss suffered if and when such structures are compulsorily removed.
Legal Category Hierarchy
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administrative law
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municipal law
- compensation for removal of structures
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municipal law
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practice and procedure
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jurisdiction
- small causes court
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declaratory relief
- specific relief act
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jurisdiction
Judgement
Appeal from a judgment and decree of the High Court (June 11, 1913) reversing a judgment and decree of the First Subordinate Judge of the Twenty-four Parganas (May 19, 1910).
The facts are fully stated in the judgment of their Lordships.
The Subordinate Judge made a declaration (a) that the structures in question were erected before June 1, 1863 ; (b) that the appellants were entitled to recover from the respondents compensation which he fixed at Rs. 40,000, and a further Rs. 56,000 unless the respondents carried out certain works. The High Court (Chitty and Teunion JJ.) set aside the decree, holding that under s. 341, sub-s. 3, of the Calcutta Municipal Act no compensation was payable until the damage had been suffered by the removal of the fixtures, and that under s. 617 the compensation was assessable by the Court of Small Causes. They stated that it was conceded by counsel that the fixtures were erected before June 1, 1863, but this admission was not embodied in their decree.
1916. June 26. De Gruyther, K.C., and Sir W. Garth, for the appellants. The respondents having denied the appellants right to compensation, the only remedy available was by a civil suit. Upon the true construction of ss. 617, 618, and 619 the compensation was not assessable, or was not assessable exclusively, in the Small Causes Court. It was important to establish that the structures were erected prior to June 1, 1863, before their demolition destroyed the evidence of their date as shown by the character of the work and materials. It is in accordance with the analogy of the English Lands Clauses Act, 1845, that the compensation should be assessed before possession was taken. In any case the appellants were entitled to a declaration that the structures were erected before June 1, 1863, and that they were entitled to compensation.
The respondents were only called on as to the last-mentioned contention.
Dunne, for the respondents. The substantial question in the litigation was whether the appellants were entitled to compensation as a condition precedent to the demolition of the structures. They should have waited and proceeded in the Small Causes Court. Their suit was premature.
July 17. The judgment of their Lordships was delivered by
LORD BUCKMASTER L.C. In this case the appellants are the owners of a bazaar in Kidderpur, which abuts upon two public streets known as Garden Reach Road and Diamond Harbour Road respectively. Along the frontages of these streets there are a number of verandahs or shops connected with the main buildings and erected upon culverts or platforms placed over drains which run by the side of the roads. The streets and drains are vested in the respondents as the Corporation of Calcutta, and they on July 13, 1905, and April 21, 1908, served notices (under s. 341 of the Calcutta Municipal Act of 1899) upon the appellants, requiring the removal of these fixtures in Diamond Harbour Road and Garden Reach Road respectively. Sect. 341 of the Act, so far as it affects service of the notices, is not material, but it contains, in sub-s. 3, certain provisions material to this dispute, which are in these terms "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."
The appellants paid no attention to the notices, and the respondents accordingly made application to the magistrate for demolition of the structures as to Diamond Harbour Road on November 22, 1905, and as to Garden Reach Road on November 5, 1908. Orders were made on both these summonses—on the first on December 22, 1906, and on the second on May 27, 1909. A rule nisi was obtained by the appellants to discharge the order relati
