GARIBDAS JAISWAL Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THIS appeal is at the instance of the plaintiff and it arises out of a suit for permanent in junction.

(2.) THE plaintiffs are holders of stalls abutting on a passage having a width of 6'4" in Block 'f' of the College street Market belonging to the Corporation of Calcutta. It is the case of the plaintiffs that the said passage is the only passage for ingress to and egress from the row of stalls of the plaintiffs and they have been using the same for more than twenty years. It is alleged that without this passage, it is impossible for the plaintiffs to load and unload merchandise from the College Street. The Corporation of calcutta has granted licenses to the defendants Nos. 2 to 9 for carrying on business in the stalls to be erected on the said passage opposite to the stalls of the plaintiffs. The construction of such stalls would reduce the width of the passage from 6'4" to 3'. It is the case of the plaintiffs that there is a tacit understanding between the plaintiffs and the Corporation of calcutta that the passage will never be blocked and curtailed in any way as, but for the passage it would be impossible for the plaintiffs to utilise their stalls and as the minimum breadth of 6'4" is essentially necessary for loading and unloading heavy and bulky merchandise. Upon the said allegations, the plaintiffs have prayed for a permanent injunction restraining the defendants including the Corporation of Calcutta from blocking, curtailing or narrowing the passage.

(3.) THE defendants entered appearance in the suit and contested the same by filing two sets of written statement, one by the Corporation of Calcutta and the other by the defendants Nos. 2 to 9. Their case is that the plaintiffs are mere licensees of the Corporation of calcutta. The licenses have been granted on daily rent basis by the commissioner of the Corporation of Calcutta in exercise of his power under section 449 (1) of the Calcutta Municipal Act, 1951, on terms and conditions mentioned in the said licenses. It has been averred by them that there is a ledge in front of each stall measuring 3' in width. It is their case that the plaintiffs have been using the said passage for loading and unloading their goods and for storing the same which mostly consist of heavy and bulky hard wares causing obstruction to and encroachment upon the said passage for which they have been warned by the market authority. It is alleged that the plaintiffs have no right to encroach upon the passage for the purpose of loading and unloading and for storing their merchandise or to create nay obstructions thereon. It is contended by them that the plaintiffs who are mere licensees are not entitled to maintain the suit for permanent injunction and that the suit is liable to be dismissed.