NRIPENDRA KUMAR DUTTA Vs. CHAIRMAN OF HABIGUNJ MUNICIPALTY

JUDGEMENT

(1.) The facts giving rise to the suit out of which this appeal has arisen are that there is a market within the Municipality of Habigunj called Purahbazar. The appellant is the Receiver of an estate called the masulia estate which, owns a small fractional share in the market. This market, as alleged by the plaintiff, is an old one. Chi. the "other hand the defendants say that the sale of fish and vegetables has been started in this market lately. For the purposes of this appeal it is not necessary for us to enquire whether the market is old or new. The plaintiff applied to the defendant Municipality for as license under Section 339 of the Bengal Municipal Act III of 1884 to use the market for the sale of fish and vegetables; but license was refused." On the 29 March 1920, the Commissioners of the Municipality resolved that they did not see their way to grant the license to the plaintiff who was a part-proprietor. By this resolution they intended to convey that the plaintiff had no right to apply for a license under Ch. X of the Act because he was a part-proprietor and represented only a fractional share in the market. The plaintiff has thereupon brought this suit for declaration that he is entitled to get license even though he is a part-proprietor. The learned Subordinate Judge before whom the suit was tried held that a part-proprietor was not entitled to apply for a license and dismissed the suit. so far as it related to the use of the market for the sale of vegetable, etc. The claim for license for the sale of fish was granted subject to the plaintiff's carrying out certain improvements suggested by the defendant Municipality. Both parties appealed against portions of the decree, affecting them adversely and both the appeal and the cross-appeal were dismissed by the Additional District Judge.

(2.) The plaintiff has appealed to this Court and the defendant has taken a cross-objection with regard to the decree relating to the fish market.

(3.) The one point that arises in this case is whether the plaintiff as a part-proprietor or a co- sharer in the market is entitled in law to apply for a license under Ch. X of the Bengal Municipal Act. Various other matters have been brought to our notice, but it is not necessary for us to consider them. We propose to confine our decision to the question of law that has been raised in this case, as to whether a part-proprietor of a market is entitled to apply for a license under Ch. X of the Act or must it be the entire body of owners who may apply for such license. It is conceded that there is no provision in Ch. X for submission of an application for license. But, the learned Subordinate Judge was of opinion that in Section 340. owner means the entire body of owners, who only can apply for a license under Section 339. This view has been accepted by the Additional District Judge. Now the question as to whether the plaintiff is entitled to apply for a license is one that depends upon the meaning of the word owner as used in Section 340. Section 339 does not make mention of any application or of the person by whom it may be made. It simply lays down that, in the case of a new market the Commissioners may grant such license year by year on the certificate in writing under the hand of the Chairman. It no doubt contemplates that the Commissioner must be moved for license by some one. Section 340 says that the Chairman upon the application in writing of the owner of any land shall grant such certificate unless the land be unfit for the purposes of the market. It is contended by the respondent that the word owner as used in Section 340 must mean the entire body of owners; and it is further contended that when an application is made by the entire body of owners the Chairman shall give the necessary certificate; and such certificate being given an application must be made for the issue of license. We do not find any ground for holding that the word owner as used in Section 340 means the entire body of owners. The learned Judge in his judgment says that after perusing the appropriate sections of the Act he is of opinion that the interpretation put upon the word owner by the Trial Court is the correct one. He has not referred to the appropriate section so that we are unable to follow his reasonings. The term owner has been defined in Section 6(11) of the Act. It includes (a) " every person," I quote so much only as is necessary for the determination of the question raised before us, " who is entitled for the time being to receive any rent in respect of the land with regard to which the word is used; (b) a manager on behalf of any such person; (c) an agent for any such person; (d) a trustee" for any such person." The interpretation put upon the word owner by this clause enlarges its ordinary significance and is not intended to restrict it. On a careful reading of this definition it would appear that it is intended to include, and not exclude, any person who may be termed owner of the land; and indications, as supplied by the wording of this clause, are to be found in the use of such expression as "any rent" which signifies that any person who is entitled to any rent or any portion of the rent or any kind of rent is an owner.