MUNICIPAL COMMISSIONERS Vs. PROVAKAR PROSAD SINGH

JUDGEMENT

(1.) This is an appeal by the defendant, Municipal Commissioners of North Barrackpur Municipality against an order of remand passed by Mr. K.C. Das Gupta learned District Judge Alipur, District 24 Parganas.

(2.) The plaintiff's case is that he was a lessee of certain lands for a term of nine years from 12-2-1939, that on 27-2-1939 he applied for the grant of a licence under Section 370 (1)(ix), Bengal Municipal Act, 1932, for establishing a brick field on the said land. The defendant wrongfully, unjustly, maliciously and illegally refused the prayer and by a letter dated 25-3- 1939 informed him of the fact of refusal. On 24-11-1939 the plaintiff filed a second application which was similarly, refused and the plaintiff was informed of the fact of refusal by a letter dated 14-12 1939. On 19 2-1941 the plaintiff filed another application which was refused on 15-2-1942 at a meeting of the Commissioners. The resolution was passed by the Chairman and his party maliciously giving certain reasons, but the real reason was that the plaintiff and his uncle had a brick-field at Carulia, the Chairman wanted 2 lacs of bricks from the plaintiff and his uncle at pre-war rate, though the price of bricks had gone up abnormally, the plaintiff agreed and supplied the bricks but when the plaintiff's men went to collect the bill for the price of the bricks supplied, the Chairman did not pay but laid a false charge that the plaintiff had promised to pay a bribe of Rs. 1000 to another person for securing the licence applied for. The Chairman also set up the school boys to put forward a claim to the said land as a playground and was instrumental in the filing of criminal cases against the plaintiff. The plaintiff was convicted in the trial Court but was acquitted on appeal. The plaintiff prayed for the following reliefs: (a) For a declaration that the resolution passed on 15-2-1942 is arbitrary, illegal, unjust and ultra vires and is liable to be set aside, (b) For a mandatory injunction directing the defendant to forthwith grant a licence under. Section 370 (1)(ix), Bengal Municipal Act 1932. (c) For damages for Rs. 1000 for wrongfully and arbitrarily preventing the plaintiff from burning and baking bricks, titles etc., for the last four brick manufacturing seasons.

(3.) The defendant filed a written statement denying the allegations as to malice and disputing the claim both on the merits and on the ground of limitation and pleading absence of jurisdiction of the civil Court to try the suit. On the pleadings, nine issues were raised. The parties by a joint petition filed on 12-5-1943 prayed for a decision of some preliminary issues viz., issues 1, 3 and 5 i.e. maintainability of the suit, jurisdiction of the Court and limitation. The prayer was allowed and the parties were heard on these issues only.