GIRIJA SINGH Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THIS is an application by four persons who contend that they have been carrying on trade and profession by selling ready-made garments on the footpaths of Calcutta as and when permitted by the Corporation of Calcutta. The petitioners state that they along with a large number of persons applied to the Corporation of Calcutta and the Commissioner of the Corporation of calcutta for permission to allow them to carry on trade by hawking in the streets of Calcutta and the petitioners were so allowed to use the pavements for hawking. The petitioners contend that the respondents Nos. 1 and 2, being the Corporation of Calcutta and the Commissioner of Corporation respectively permitted the petitioners and 62 other persons to occupy the footpaths and sell goods after payment of requisite fees to the Corporation as per provisions of the Calcutta Municipal Act, 1951 and the rules framed thereunder. It is further the case of the petitioners that the respondents granted receipts to the petitioners after receiving the fees from the petitioners. The petitioners have annexed a copy of such receipt. The petitioners further contended that 66 persons were allowed and permitted to carry on trade on the footpaths as hawkers during the national festival of 'sravanautsab' up to the period from 31st August, 1968 to 2nd September, 1968. The petitioners state that they had deposited different scales of fees for the licence for permission for carrying on trade and it is further the case of the petitioners that the respondents Nos. 1 and 2 granted trade licence to the petitioners. After the grant of the said licence the petitioners had started, according to the petitioners, to carry on trade on the footpath which was temporarily closed by what is called by the petitioners a public notice In paragraph 7 of the petition the petitioners have set out an extract from the public notice alleged to have been published in the Amrita Bazar Patrika in the late morning edition of 6th August, 1968, to the following effect: "corporation of Calcutta temporary closure of roads, lanes etc. , location, Premises Nos. 1 to 7, chowringhee Road; purpose -sale of goods. Dates from 1. 8. 68 to 31. 8. 68 sailajananda Bhattacharjee 5. 8. 68 secretary to the Corporation. The area comprised in the said notice is the front portion of premises Nos. 1 to 7 Chowringhee Road, Calcutta. The petitioners further state that since the petitioners and others started that profession on the said premises as permitted by the Corporation, the Commissioner and their subordinates, the respondents Nos. 3 and 4 being the Commissioner of Police and the Deputy Commissioner of Police Central Division and Central Suburban Division, Lallbazar and their subordinates started oppression against the petitioners by arresting the petitioners on the plea of obstruction of the road under the Calcutta Police Act, 1866 and started criminal proceedings against the petitioners before the Police Court. The petitioners contend that such proceedings were without jurisdiction and illegal. According to the petitioners it is the duty of the police to assist the Corporation to carry out its statutory duty. Further it is the case of the petitioners that under section 361 of the Calcutta Municipal Act, 1951 the Corporation had power to close public Streets and, as such, there had been a closure of such public street and after closure the corporation was solely entitled to permit the petitioners to carry on trade and profession as hawkers on the footpaths and the police was not authorised to, obstruct the petitioners in that carrying on of the profession. In the premises, the petitioners contend that the respondent's Nos. 3 and 4, being the Commissioner of Police and the Deputy Commissioner of Police are acting in violation of the principles of law and illegally interfering with the petitioners' right. In the premises, the petitioners asked in this application under Article 226 of the Constitution for a Writ of Mandamus directing the Commissioner of Police and Deputy Commissioner of Police and their subordinates not to proceed with illegal and wrongful act of obstructing and arresting and prosecuting the petitioners and depriving the petitioners and others from enjoying the incidental right to carry on trade and profession allowed by the Corporation of Calcutta and also for a Writ of Prohibition and other directions to the said effect. It has to be mentioned that on the ground the petitioners as well as the Corporation were acting illegally, the police had initiated proceedings under the Code of Criminal Procedure which had subsequently been quashed to which I shall refer later.

(2.) THE question involved in this application therefore, is has the police: any right and authority to interfere with the petitioners' carrying on the business of hawkers in the stalls set up in the footpaths of Calcutta ? In order to decide this contention it is necessary to determine whether in fact the Corporation of Calcutta has permitted the: petitioners to carry on the trade of hawkers on the footpath in front of the premises Nos. 1 to 7 Chowringhee Road, Calcutta; secondly it is necessary to determine whether, if it has so permitted, whether such permission by the Corporation was valid and proper. The Corporation's right has to be determined by reference to the provisions of the Calcutta Municipal Act, 1951. Under section 5 (60) of the said Act public street' has been defined as follows :

(3.) THE case of the petitioners shortly is this that the public streets belonged absolutely to the Corporation of Calcutta. Corporation of Calcutta is the proprietor thereof. The Corporation of Calcutta has the right to close the public streets temporarily or permanently. The Corporation of Calcutta, in this case, according to the petitioners closed a part of a public street and granted permission to the petitioners by issuing the licences to the petitioners. The petitioners had paid the licence fees and the occupation charges to the Corporation of Calcutta. According to the petitioners the Corporation of Calcutta therefore, permitted the petitioners to use a portion of their property which vested absolutely in them. The police had no right, therefore, to interfere with the rights of the petitioners. The Police are interfering with the rights of the petitioners. Therefore, the police authorities, according to the petitioners, are acting illegally. In this connection reference may be made to the provisions of the Calcutta Police Act, 1866 which deals with the powers of the police and Section 66 deals with the penalty for committing in public streets the various offences and clause 4 (a) of the said section makes this hawking in the manner as done by the petitioners an offence entitling the police to take action. According to the petitioners the police were not entitled to take action against the petitioners. It is, therefore, necessary to determine whether the portion of the Chowringhee Road in which the petitioners had been allegedly permitted to hawk is part of the public street. Undoubtedly, being the footpath attached to the path it is a part of the public street and as such it was a part of the public street which is vested in the Corporation of Calcutta. It is stated that there was a closure of the said public street as mentioned hereinbefore but no formal notification of the closure of the public street. Only reference to the closure was an advertisement published in a newspaper where it was stated that there was a temporary closure of the part of the road from 1st of August, 1968 to 31st August, 1968. No reliable evidence has been produced before me that there was in fact any closure by the Corporation of Calcutta as required by law of this portion of street of Calcutta, it is not clear from he said publication whether the entire road including; the footpath of premises 1 to 7, Chowringhee Road was closed or not. No resolution of the Corporation has been produced to indicate that there has been any closure. Under section 361a of the Calcutta Municipal Act, the Commissioner has been authorised to make a temporary closure only for the purpose of construction. In this case there has been no closure by the Commissioner. No copy of the original notification issued by the Corporation was produced before me in this matter. I asked the Corporation of Calcutta to produce the records, if any, regarding the closure. No such records were produced. Counsel for the petitioners wanted time to produce the document and to substantiate the same from the records. I, accordingly, gave him time. Counsel for the petitioners has also not been able to produce any such record. Therefore, there is no evidence before me of any closure either temporarily or at all of any portion of the street in Chowringhee Road in front of premises Nos. 1 to 7, Chowringhee Road. If there is no valid closure of any portion of premises Nos. 1 to 7 Chowringhee Road then in that view of the matter the police were authorised to take action against the petitioner for removing the violation of the provision of the law. The petitioners along with the Chairman, Standing Building Committee were prosecuted before the Police Court, Evan order in Criminal revision application is the case of (1) Ganapati Sur and anr. v. State and anr. 74 C. W. N. 660, N. C. Talukdar, J. has set aside the said criminal prosecution. The learned Judge came to the conclusion that all public streets etc. as referred to in Section 349 of the Calcutta Municipal Act, vested in and belonged to the Corporation. Section 361 (c) of the said act next provided that the Corporation might turn, divert or temporarily or permanently close any public street or part thereof, or permanently close any public square or garden. The learned Judge held it was therefore abundantly clear that the statute provided that all public streets and squares vested in and belonged to the Corporation and accordingly under the doctrine of incidental powers of the Corporation, powers flowing from the normal incidents of ownership should be given to the said body unless and until the statute laid down any restriction encroaching upon the same. One such restriction was provided in Section 351 of the Act according to the learned Judge. The learned Judge was also of the opinion that the statute therefore had cast a duty upon the Corporation of Calcutta for the purpose of public convenience for suitably maintaining the public streets and enjoined upon it to take necessary steps in furtherance thereof. The statute further conferred an express right to the Corporation as would be evident from the provisions of Section 361 (c) of the Calcutta Municipal Act, 1951 referred to above, even to "temporarily or permanently close, any public street or any part thereof". This concept arose out of common law doctrine of the high way with the right of way at any time as a thoroughfare. The use of the word 'offence' in section 66 of the Calcutta Police Act, 1866 was quite significant and some meaning and effect should be given to it. The facts constituting the said proceeding disclosed, according to the learned Judge, no such 'offence' because the hawkers in question were armed with the requisite licences granted by the Corporation of Calcutta which it was entitled to grant the same under the statute, and accordingly the carrying on of their trade by the hawkers, concerned would not itself be an offence, unless and until the grant of the said licence was in, conflict with any express restriction laid down by the statute, encroaching upon the aforesaid right, of the Corporation. The learned Judge held that the said complaint therefore disclosed no offence within the meaning of Section 66 of the Calcutta Police Act, 1866 and the said criminal proceedings were not maintainable in law. The proper remedy according to the learned Judge for the purported obstruction was a writ in the nature of mandamus commanding the persons, charged with certain statutory duties to perform the same if and when such obstructions were found to be established. Therefore the learned Judge held that no criminal proceedings could lie inasmuch the possession of the petitioners was armed with the licence by the Corporation of Calcutta. It is not necessary for me in this case to decide whether a criminal prosecution would lie against the petitioners or not. So far as the present petitioners are concerned, the prosecution against them at least some of them- had been quashed and the matter rests there. The period for which there was an alleged temporary closure has also expired and no evidence has been produced before me to indicate that there has been further closure. Therefore, this application in effect has become in fructuous because at the moment there is no closure by the Corporation of Calcutta. So, if the respondents take steps against the petitioners for removing obstructions caused to public streets, the respondents would not be acting illegally because there is no further closure.