NIRMAL CHANDRA SANYAL Vs. MUNICIPAL COMMISSIONERS

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff against the judgment and decree of the learned District Judge of Pabna who has partly reversed the judgment and decree of the Second Court of the Munsif of that place. The defendants, the Commissioners of the Municipality of Pabna, have referred cross-objections and as the cross-objections go to the root of the matter, I have heard the respondent's advocate first in support of his cross- objections. In 1918 the Commissioners of the Pabna Municipality had reserved a part of the Strand Road, in front of the plaintiffs land, as a hackney carriage stand. At that time the Calcutta Hackney Carriage Act of 1891 (2 of 1891, B. C.) was in force. The said Act had been extended to the Municipal limits of the town of Pabna by Notification No. 1008 T. M., dated 4th November 1913. The said notification is in the following terms: In exercise of the power conferred by Section (1), Clause (3), Calcutta Hackney Carriage Act 2 of 1891, the Governor in Council is pleased to extend the provisions of the said Act to the Pabna Municipality in the District of Pabna.

(2.) The Governor in Council is also pleased, in exercise of the power conferred by Section 61, Sub-section (1) of the same Act, to appoint the Commissioners of the Pabna Municipality and their Chairman, respectively, to perform the duties imposed and to exercise the powers conferred by the Act on the Corporation of Calcutta and the Chairman of the Corporation, respectively. 2. By the Calcutta Hackney Carriage Act 1 of 1919 (B. C.) Act 2 of 1891 (B. C.) was repealed and no notification by the Local Government has been issued under Section 2, Clause (a) of Act 1 of 1919 extending the said Act of 1919 to the town of Pabna. In July 1933 the Commissioners of the Pabna Municipality paved the portion of the Strand Road reserved in the year 1918 as a hackney carriage stand. The said place is still being used as a hackney carriage stand.

(3.) The plaintiff filed his suit on 11 December 1933 against the Commissioners of the Pabna Municipality for a mandatory injunction for removal of the said hackney carriage stand, for a permanent injunction restraining them from allowing the said place to be used as a hackney carriage stand, for a permanent injunction for restraining them from obstructing the passage to his land from the Strand Road and for damages. The basis of these reliefs is the statement made in para. 4 of the plaint. The substance of that paragraph is that the hackney carriage stand is kept in a dirty condition; there is no flushing arrangement and the bad smell has caused and is causing great discomfort with the result that some of the plaintiffs tenants occupying huts on his land had already left and the carriages standing in a long row caused obstruction to the ingress and egress to and from his land to the Strand Road.