CORPORATION OF CALCUTTA Vs. SUDHAMOY BOSE

JUDGEMENT

(1.) THIS appeal by special leave is at the instance of the Corporation of Calcutta. The respondent, Sudhamoy Bose. was acquitted by the Municipal Magistrate on the ground that no permission to prosecute the accused opposite party had been obtained from this Court which had appointed him Receiver (in suit No. 1224/50 of this Court in its Original Side; Jagmohon Kotari v. Dawdoyal Kotari.

(2.) BRIEFLY , the facts are as follows; The opposite party is a Receiver in respect inter alia of premises No. 201A, Harrison Road. He was prosecuted for exercising the calling of a Private Market Owner at 201A Harrison Road without a license under Section 222 read with Schedule VII of the Calcutta Municipal Act (West Bengal Act XXXIII. of 1951); for the second half -year, 1956 -57, on payment of Rs. 60/ -. It was alleged that the Corporation staff had to remove on average more than 5 cubic feet of refuse matter daily. The case of the opposite party was that the premises did not constitute a Private Market, the fact being that certain shop rooms on the ground floor had been let out to tenants for the exclusive business of sale of cloth. It was stated that the cloth business was being carried on at the instance of tenants for the last half a century or so and at no point of time the opposite party or his predecessor in interest had ever taken any license under Section 222 of the present Calcutta Municipal Act or under any pre -existing Act. Accumulation of refuse materials was also denied. Private sweepers who were engaged for the premises were said to have removed instantly even a bit of paper. Above all, it was the opposite party's contention that in the absence of permission of the Court he could not be prosecuted In his capacity as a Receiver. This contention was accepted by the Municipal Magistrate who acquitted him.

(3.) AS has been laid down in unmistakable language, on a wide survey of case -law on the subject, in Banwarilal Agarwal v. Sudhamoy Bose, 59 Cal WN 481, the rule requiring leave to sue a Receiver has as its basis considerations of public policy and this rule has become a part of the law of the land and crystallised into a rule of law, and this rule is applicable to all actions statutory or otherwise unless there are exceptions recognised in the rule itself or unless such exceptions are made expressly or inipliedly by the statute in question conferring the particular right of action.