Rule 5 (4) of Schedule XVII of the Calcutta Municipal Act is not ultra vires, but compliance with the Rule is necessary for the validity of a demolition order.

( 1 ) IN this appeal two interesting questions have been raised and they arise under the Calcutta Municipal Act, or to be more precise, under Rule 5 (4) of Schedule XVII thereof. The appeal is by the two defendants, the Corporation of Calcutta , and its Commissioner and it is directed against a decree of the court below declaring a certain order of the Commissioner bad and inoperative and declaring further that the notices, issued in connection with the carrying out of the order were inoperative and issuing also a permanent injunction to restrain the Corporation and its officers and men from giving effect to the said order and notices.

( 2 ) THE suit was filed under the following circumstances: that, on September 10, 1957, the defendant No, 2 Commissioner directed demolition of Premises No. 5 Tamsook Lane. Burrabazar, which is a partly one-storied, partly two-storied and partly three-storied building, under Rule 5 (4) of Schedule XVII of the Calcutta Municipal Act. This was communicated to the plaintiff (who is a tenant of the said premises) by a notice, served on September 14, 1957, and he (the plaintiff) was also directed by the said notice to deposit Rs. 1923. 95 np. as cost of demolition and, thereafter on September 19, 1957, another notice, dated September 17, 1957, was served on him intimating that the Insecure Building Inspector would enter the said premises on September 21. 1957, for carrying out the said demolition work. The plaintiff, thereupon, filed the present suit on September 20, 1957, for inter alia, the declarations aforementioned and denying further his liability for the costs, demanded from him.

( 3 ) THE court below decreed the suit in part holding inter alia that the impugned demolition order and the connected notices were bad and granting the plaintiff necessary reliefs in respect of the same.

( 4 ) THE plaintiff's challenge was based on two grounds. He urged, in the first place, that the Rule namely, Rule 5 (4), under which the defendants purported to act, was ultra vires. He urged further that, in any event, in taking the above steps, the defendants did not act in compliance with the said Rule or within the four corners thereof and, as such, their action was bad and inoperative in law and the plaintiff was entitled inter alia to a declaration to that effect and also to consequential injunction. The court below rejected the first submission but accepted the second and decreed the suit accordingly.

( 5 ) THE appellants argue that the steps, taken by them, were perfectly in accordance with law and, in any event, they were protected from challenge by suit. They support also the trial court's finding that the Rule in question, namely, Rule 5 (4), is not ultra vires. Here the plaintiff-respondent demurs and he urges further that the other finding of the court below, namely, that the appellants' actions, impugned by him, were bad and inoperative in law is correct and should be maintained. These rival contentions have now to be carefully examined.

( 6 ) IT is necessary at this stage to set out the relevant facts in some detail and we proceed to do so as follows: the chapter opened with an inspection of the disputed premises by the Corporation's Building Inspector (D. W. 2) who, on July 29, 1957, after such inspection, submitted his report (Ex. B (1)) to the Insecure Building Inspector to the following effect:"i. B. S. Inspected and round that the inside verandhas, at each level and also verandhas at each level over Tamsukh Lane, are in most dilapidated condition. The wooden beams have been bent and tiles have been damaged. The verandhas require immediate demolition. The roofs of the building also have been damaged. The whole building is in dilapidated condition. Immediate action may be taken according to law. Submitted for inspection. "

( 7 ) THEREAFTER, on August 21, 1957, the Insecure Building Inspector inspected the Premises and submitted his report, Ex. B, to the City Architect. Th