SHIVADHAR SUKLA Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) IN this suit the plaintiff has asked for (a) a perpetual injunction restraining the defendants Nos. 1, 2, 2a, 3 and 4 from giving any effect to the resolution of the Public Utilities and Markets Committee dated the 30th August, 1956 and of the Corporation of Calcutta dated the 9th November, 1956 or from determining the joint occupation and excluding the name of the plaintiff as joint occupier of Stall No. 'd' 84 of Sir Stuart Hogg Market, and setting up any partition or other wall between Stall No. 84 and Stalls Nos. 85 and 86 in Block 'd' of the Market in pursuance of the resolution or at all; (b) a perpetual injunction restraining the defendants and each of them from interfering with or interrupting the plaintiff's joint occupation of Stall No. 84 in Block 'd' of the Market in pursuance of the resolution of the Public Utilities and Markets Committee dated the 11th July, 1941; (c) if necessary a declaration that the purported resolutions of the Public Utilities and Markets Committee dated the 30th August, 1956 and of the Corporation of Calcutta dated the 9th November, 1956 are ultra vires, illegal null and void, and of no force and effect; and (d) an order that the purported resolutions of the Public Utilities and Markets Committee dated the 30th August, 1956 and of the Corporation of Calcutta dated the 9th November, 1956, be set aside and cancelled.

(2.) THE plaintiff's case is that by a Resolution dated the 11th July, 1941 of the Public Utilities and Markets Committee constituted under the Calcutta Municipal Act III of 1923 the plaintiff was registered as the sole occupier of Stalls Nos. 85 and 86 and as joint occupier of Stall No. 84 along with one Badri Prasad Dubey, since deceased. The resolution was acted upon by the Committee and also the Corporation of Calcutta (hereinafter referred to as "the Corporation" ). The plaintiff and Badri Prasad adopted and accepted the resolution and acted in terms thereof. In 1940 it was agreed between Lachmi Chand Shukla since deceased, a son of the plaintiff and Badri Prasad Dubey after the efflux of a partnership for five years subsisting between them that Lachmi Chand would carry on business of his own at Stall No. D-84 and pay to Badri Prasad in consideration thereof Rs. 50/- per month. After Badri Prasad's death the money would be payable to his heirs and legal representatives. In terms of this agreement Lachmi Chand was making payments to Badri Prasad. After Lachmi Chand's death the plaintiff made the payments to Badri Prasad and thereafter to the defendants Nos. 5 and 6 who have no right or title to Stall No. D-84 except the right to receive Rs. 50/- per month.

(3.) ON the 30th August, 1956 the Public Utilities and Markets Committee, the defendant No. 3 in this suit, purporting to act under the provisions of the Calcutta Municipal Act XXXIII of 1951 passed a resolution that the names of the defendants Nos. 5 and 6, the heirs of Badri Prasad, be recorded as sole occupiers of Stall No. 84 and the plaintiff's name be recorded as the sole occupier of Stalls Nos 85 and 86. The Corporation at its meeting held on the 9th November, 1956 has approved of this resolution. It is this resolution and its approval by the Corporation which have been challenged in this suit on various grounds. After the institution of this Suit the Chief Executive Officer of the Corporation was appointed. He has been added as a party to this suit and is defendant No. 2a.