CORPORATION OF CALCUTTA Vs. SMSUMERIA BEWX

JUDGEMENT

(1.) The plaintiff in the suit out of which this appeal arises was the owner of certain premises situated within the Municipal limits of Calcutta. She was the owner of certain hackney carriages and horses with which she carried on the business of hire. She desired to use these premises in question as a stable for those horses and carriages find applied to the Corporation for sanction which however was refused. She continued the business nevertheless and was prosecuted before the Municipal Magistrate and fined. It appears that the Chief Executive Officer of the Corporation had refused her a license for which she applied under the terms of Section 386, Calcutta Municipal Act, 1923. From his decision an appeal was preferred to the Corporation which was considered and disposed of by the Health Committee who supported the decision of the Chief Executive Officer in refusing the license. The plaintiff brought this suit against the Corporation asking for a mandatory injunction on the Corporation to grant her license to keep these horses upon the premises in question and secondly for an injunction to restrain the Corporation from prosecuting her under the provisions of Section 488 read with Section 386 and restraining them from interfering with her right to use these premises as a stable. She also claimed a sum of Rs. 50 as damages.

(2.) Both the Courts below have granted a decree against the Corporation, at any rate, in regard to the injunction restraining the Corporation from taking action and as to damages. The learned Judge of the lower appellate Court states amongst other things that it is not disputed that the plaintiff had her stable on the land at the time of the prosecution and had no license for it; and ordinarily, he says, it cannot be denied that an owner who is using promises as a stable without license is liable to prosecution under Section 386, of the Act. The learned Judge then says after a discussion of certain provisions of the Act that " having regard to the facts of the case the Corporation can hardly be said to have properly exorcised its discretion in those matters."

(3.) He refers to the fact that as it transpired in evidence a license was granted before in 1922-23 for the use of the whole plot under Section 386 and that there was a cow-shed in the northern portion and the owner was permitted to use it as a cowshed even in 1924. He then goes on to say: Plaintiff could rightly complain that the action was taken by the Corporation for the sake of the convenience of the owners of promises No. 18-1.