GANAPATI SUR Vs. STATE

JUDGEMENT

(1.) THESE ten Rules which involve the same points were heard analogously and are taken up together for disposal. The Rules are for quashing ten criminal proceedings, being Cases Nos. P. R. 864 to 873 of 1968, pending in the court of Sri S. N. Mukherjee, Presidency magistrate, 15th Court, Calcutta, under section 66 of the Calcutta Police Act (Act IV of 1966) against the accused-opposite party No. 2 and under section 66 of the said Act read with section 109 of the Indian Penal Code, against the petitioner No. 1.

(2.) THE facts leading on to the rules may be put in a short compass. The petitioner No. 1 in each Rule is the Chairman of the Standing Works and Town Planning Committee of the calcutta Corporation, the petitioner no. 2, constituted under Section 14 of the Calcutta Municipal Act (West Bengal Act XXXIII of 1951)and the accused-opposite party No. 2 is a hawker selling his articles on the pavement of the Chowringhee Road after obtaining a local temporary licence from the corporation of Calcutta under schedule iv, Rule 1, Item 142 and Schedule IV, rule 2 of the Calcutta Municipal Act, 1951. On the 13th August, 1968, the accused opposite-parties in the different rules were arrested by S. I. , S. Dhar accompanied by Sergeant S. Mukherjee under Section 66 of the Calcutta police Act, 1866 for a purported obstruction of the pavement. The police report inter alia is that on the 13th august, 1968, at about 8-25 p. m. the different hawkers obstructed the pavement between premises Nos. 1 and 7, chowringhee Road by spreading their wares, to wit frocks, for sale and thereby caused serious obstruction to the free movement of the pedestrians and that the accused No. 2, Ganapati Sur, being the Chairman of the Standing works and Town Planning Committee of the Corporation of Calcutta, ordered the issue of receipt, against certain payments of money, from the Corporation of Calcutta, without any authority, allowing the hawkers concerned to occupy and hawk their wares in the aforesaid portion of the pavement on the Chowringhee Road, and thereby aiding and abetting the hawkers in committing an offence under Section 66 of Bengal Act IV of 1866. A challan was submitted before the learned Chief presidency Magistrate, Calcutta on 12. 12. 68 against the hawkers under section 66 of Bengal Act IV of 1866 and against the Chairman of the Standing works and Town Planning Committee, corporation of Calcutta, under section 66 of Act IV of 1866 read with section 109 I. P. C. Summonses were issued and the accused were placed on their trial before the learned Presidency Magistrate, 15th Court, Calcutta, on the above-mentioned charges. These proceedings were impugned as not maintainable in law and on merits and the present ten Rules were obtained.

(3.) MR. Nityaranjan Biswas, Advocate, appearing in support of all the rules, on behalf of the two petitioners, made a six-fold submission. Two other contentions were also put forward touching the Constitution but they were ultimately given up by Mr. Biswas. The first contention of Mr. Biswas is procedural viz. , that the petitioner No. 1 being a public servant under Section 605 of the Calcutta municipal Act, 1951 within the meaning of section 21 of the Indian Penal Code and the acts done by him being in discharge of his official duties, the present proceedings have been vitiated by the absence of the relevant sanction. Mr. Biswas's second contention is a material one and goes to the root of the case. The steps of his reasoning, in this context, are that under section 349 of the calcutta Municipal Act, 1951, the Corporation of Calcutta is the absolute owner of all the streets in Calcutta; that under section 361 (c) of the said act, the Corporation has the legal right to "temporarily or permanently close any public street or any part thereof"; that the resolutions passed on the footing thereof are quite within the bounds of the statute and the powers conferred there under upon the Corporation of Calcutta; and that the criminal proceedings based thereupon do not disclose any offence in law against the petitioner No. 1. Mr. Biswas on this point referred also to the provisions of sections 5 (60) and 596 of the Calcutta Municipal Act, 1951. The third submission of Mr. Biswas is that the Corporation has the right to grant licence under section 218 and 219 read with Schedule IV, Rule 1, item 142 and rule 2 of the Calcutta Municipal Act, 1951, and as such the Corporation being a statutory body, the police can merely assist the said body to perform its duties and therefore the present criminal proceedings are neither maintainable against the petitioner No. 1 nor against the opposite party No. 2. The fourth contention of Mr. Biswas is that in any event, the acts complained of having been done in the lawful exercise of the powers and functions laid down under sections 25, 26 and 548 (2) of the Calcutta Municipal Act, 1951, and done lawfully and in good faith and with due care and attention under section 587 of the Act, the present proceedings under section 66 of the Bengal Act IV of 1866 are not maintainable against the petitioner no. 1 or the municipal authority. The fifth contention of Mr. Biswas is that it was the Commissioner who had granted the licence and not the Chairman and as such the criminal proceedings against the petitioner No. 1 should be quashed. The sixth and last submission of Mr. Biswas is that the petitioner no. 1 not being the Chairman on the date of the occurrence viz. , on 13. 8. 68, the present proceedings against him are wholly unwarranted and untenable. The next two contentions of Mr. Biswas since given up touch the Constitution. Mr. Biswas in this context submitted in the first instance that the present proceedings amount to an infringement of the property right of the corporation and also its right under section 381 (c) of the Calcutta Municipal act amounting to an infringement of the right to or in respect of the property, conferred under Art. 31 of the Constitution and as such the present proceedings are ultra vires the said Article. The next contention of mr. Biswas in this behalf is that the proceedings encroach upon the fundamental rights of the citizen to acquire, hold and dispose of property or to carry on any trade and as such are ultra, vires, art. 19 (1) (i) (g) of the Constitution of india. These two points however as mentioned above were given up by Mr. Biswas, who submitted that these ane under consideration in the application pending in the Special Writ jurisdiction of this High Court. Mr. Amar prosad Chakraborty, Advocate (with mr. Parimal Bhattacharya, Advocate)appearing on behalf of the opposite party No. 2 in all the Rules adopted the contentions of Mr. Biswas and also submitted that the proceeding against the opposite party No. 2, the hawker, is clearly misconceived and untenable inasmuch as the hawkers obtained the requisite licence under sections 218 and 219 ,rule 1, Item 142 on payment of the local licence fee under Rule 2 of schedule IV of the Calcutta Municipal act, 1951 and that the said licences were duly signed by the Commissioner under section 548 (1) of the said Act. Mr. Chakraborty further submitted that no offence as alleged or at all has been committed by any accused and that the entire proceeding is an abuse of the process of the court and as such should be quashed. Mr. Chakraborty also referred to the pending Rule in the constitutional Writ Jurisdiction over this matter relating to the points mentioned above touching the Constitution. Mr. Jitendra Kumar Bhattacharya, advocate, appearing on behalf of the state joined issue. Mr. Bhattacharya contended in the first place that the question of quashing the present proceedings at this stage is premature. as uptil now no evidence has been adduced and that the points at issue should properly be determined in a full-fledged trial. The next contention of Mr. Bhattacharya is that the objection taken by Mr. Biswas to the maintainability of the proceedings, on the ground of the absence of a sanction, is misconceived, inasmuch as the accused-petitioner no. 1, the Chairman of the standing Works and Town Planning committee of the Calcutta Corporation, is not a public servant removable from his office save by or with the sanction of the State Government or the Central government although he may have been acting or purporting to act in the discharge of his official duties. Mr. Bhattacharya's third submission is that under sections 349 and 361 (c) of the calcutta Municipal Act, 1951, public streets and squares have not only been vested in the Corporation, with powers even to temporarily or permanently close any such public street or part thereof, but the Corporation also has been conferred with powers under the said statute to prevent obstructions to the user of the same and the grant of such powers is entirely for the benefit of the members of the public. Accordingly Mr. Bhattacharya contended that when such rights are threatened by obstructions and the beneficiaries call upon the corporation to exercise all such powers, then the power is no longer a discretion but a statutory duty which must be exercised for removing the said obstruction. Mr. Bhattacharya further submitted in this context that any encroachment on a public thoroughfare for purposes not enjoined under the Act is an offence and the Commissioner, has no right to allow such an offence to be committed whether temporarily or otherwise. He referred in this connection to the case of (1) Sudhir Kumar banerjee and anr. v. The Commissioner, corporation of Calcutta and ors. reported in 65 CWN page 133 and the same will be considered in its proper context. Mr. Bhattacharya next contended that the right to grant licence under sections 218 and 219 read with schedule iv, Rule 1, Item 142 and Rule 2 of the calcutta Municipal Act, 1951, is not an unfettered right and it is the duty of the police to remove an offence, committed as a result thereof, on a public thoroughfare causing obstruction to the members of the public. Mr. Bhattacharya finally submitted that the last two contentions put forward by Mr. Biswas, on behalf of the Corporation of calcutta, relating to the licence being granted by the Commissioner and not the Chairman and the petitioner No. 1 being not even the Chairman on the date of the occurrence viz. , on 13. 3. 68, are more technical than real and do not constitute, in any event, sufficient grounds for quashing the criminal proceedings at this stage.