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Shree Madhusudan Mills Ltd. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 277 of 1972
Reported inAIR1976Cal133,80CWN273
ActsCalcutta Municipal Act, 1951 - Sections 3, 5(60), 349, 350, 361, 362, 527(17) and 527(18); ;Constitution of India - Article 226
AppellantShree Madhusudan Mills Ltd.
RespondentCorporation of Calcutta and ors.
Appellant AdvocateA.K. Basu, ;K. Basu, ;M.P. Choudhari, ;N. Shaw and ;R. Pal, Advs.
Respondent AdvocateJ.K. Mitter, Adv. (for No. 1), ;S. Banerjee, Adv. (for No. 4) and ;P.K. Mukherjee, Adv. (for No. 7)
DispositionAppeal dismissed
Cases ReferredAssociation v. Union of India). The
- .....right to permit the erections of hoardings or to permit advertisements resting on pillars on public streets or foot-paths of the corporation. the appellant contends that these hoardings are interfering with the utilisation and enjoyment of its property. the rights of egress or ingress from and to the premises have been seriously affected. these hoarding., according to the appellant, also obstruct the enjoyment of air and light in the premises. 4. sabyasachi mukharji, j. heard the application under article 226. by his lordship's judgment delivered on june 7, 1972, he dismissed the application. the learned judge aid not enter into the controversies relating to easement rights or rights of enjoyment of air and light or of rights of egress or ingress. he left those questions open to be.....

Sankar Prasad Mitra, C.J.

1. The appellant claims to be the owner of premises No. 31, Chowringhee Road in Calcutta at the crossing of Chowringhee Road and Park Street. A portion of the premises has been let out. The appellant uses the other portion for its own purposes.

2. In an application under Article 226 the appellant challenged the erections of hoarding in front of the aforesaid premises on the footpath or path-way of pedestrians. The persons responsible for such erections have obtained licences from the Corporation. They were made parties to the application along with the Corporation of Calcutta, its Commissioner and its Licencing Officer.

3. The appellant challenges the Corporation's right to permit the erections of hoardings or to permit advertisements resting on pillars on public streets or foot-paths of the Corporation. The appellant contends that these hoardings are interfering with the utilisation and enjoyment of its property. The rights of egress or ingress from and to the premises have been seriously affected. These hoarding., according to the appellant, also obstruct the enjoyment of air and light in the premises.

4. Sabyasachi Mukharji, J. heard the application under Article 226. By his Lordship's judgment delivered on June 7, 1972, he dismissed the application. The learned Judge aid not enter into the controversies relating to easement rights or rights of enjoyment of air and light or of rights of egress or ingress. He left those questions open to be decided in appropriate proceedings at the appropriate forum. the judgment deals with the Corporation's right to grant licences for the setting up of hoardings in the manner aforesaid.

5. Mr. A.K. Basu, termed Counsel for the appellant, contends that the Corporation has no right or power or authority under the Calcutta Municipal Act, 1951, to let out or give by way of licence any part of a pathway, pavement or footpath which is admittedly part of a public street. The public street including the foot-path cannot, according to Mr. Basu. be obstructed in any manner whatsoever except for the purposes of the Act. Learned Counsel has drawn our attention to Section 362 of the Act which deals with the Corporation's power to dispose of a permanently closed street, square or garden. His point is that without a permanent closure of this nature, the Corporation Cannot permit any obstruction not expressly provided for in the Act.

6. The learned trial Judge is of the view that the Corporation being the owner of a public street has the authority subject to limitations which the Act has imposed, to exercise all the rights of an owner and if the exercise of any such right does not affect the right of user of a public street by the members of the public, there should be no bar to the granting of licences for erection of hoarding. Learned Counsel for the appellant submits that this view of the learned Judge is not correct and has relied on several decisions of this Court delivered by single Judges. These decisions are reported in: (1936) 40 Cal WN 17, (Maniruddin Bepari v, Chairman of the Municipal Commrs., Dacca); : AIR1961Cal389 , (Biswanath Sinha v. Sudhir Kumar Banerjee); (1972) 76 Cal WN 613. (Girija Singh v. Corporation of Calcutta) and (1975) 79 Cal WN 883, (Scotts (P.) Ltd. v. Corporation of Calcutta). There is also an unreported decision of Sabyasachi Mukharji J. in Suit No. 1062 of 1968 (Cal), (Sourendra Narayan Sinha v. Corporation of Calcutta).

7. For the purpose of disposing of this appeal we intend, however, to discuss the basic principles involved in such matters.

8. In the first instance let us consider the sections of the Calcutta Municipal Act, 1951 which appear to be relevant in this appeal. Section 3 provides that all properties, movable and immovable and all interests of whatsoever nature or kind therein, vested in the Corporation of Calcutta as constituted under the Calcutta Municipal Act, 1932 at the commencement of this Act with all rights of whatsoever descriptions used, enjoyed or possessed by the said Corporation, shall be deemed to be vested in the Corporation as constituted under this Act.

9. 'Public Street' has been defined in Section 5 (60). A Public Street means arty street, road, lane, gully, alley, passage, pathway, square or court, whether a thoroughfare or not, over which the public have a right of way and includes, inter alia, the footway attached to any such street.

10. By Section 349 it has been provided, inter alia, that all public streets or squares (not being the property of and kept under the control of Government, Commissioners for the Port of Calcutta, or the Board of Trustees for the Improvement of Calcutta) including the soil, subsoil and the side drains, footways, pavements, stones and other materials, of such streets and squares and all erections, materials, implements and other things provided for such streets or squares, and which are situated in Calcutta, shall vest in and belong to the Corporation. The Corporation, therefore, in terms of this section, is the owner of public streets including pavements and footways.

11. Section 350 provides for the maintenance and repair of public streets by the Corporation and says that for these purposes the Corporation may do all things necessary for public safety and convenience including the construction end maintenance of bridges, cause-ways end culverts.

12. The next two important sections are Sections 361 and 362. Section 361 gives power to the Corporation to make, improve and close streets, squares and gardens. Section 362 confers on the Corporation the power to dispose of a permanently closed street, square or garden.

13. Section 527 (17) gives power to the Corporation to make bye-laws prohibiting' or regulating the placing of obstructions, projections or encroachments, or of the depositing of materials or goods, in a public street or in or over any drain or aqueduct in a public street or on any land vested in the Corporation.

14. Under Section 527 (18) the Corporation may make bye-laws for regulating the posting or painting of advertisements in or adjacent to or visible from public streets or other public places.

15. Section 527 (17) and (18), therefore, indicates that obstructions on a public street are not totally prohibited. The Corporation has the power of regulating obstructions as and when necessary, There are also rules for the regulation of verandahs and similar other structuresprojecting over streets in Schedule XV to the Act.

16. From all the provisions aforesaid it appears that the Corporation of Calcutta is a statutory body deriving its powers under the Calcutta Municipal Act, Z951. It has some express powers granted by the statute as in Sections 361 and 362. It has some implied powers as in Section 527 (17) and (18). It is the owner of public streets. Its ownership, however, cannot be equated with the ownership of a private individual over his own property. The Corporation cannot do whatever it likes. It cannot infringe the rights conferred under the Act on the members of the public. In a public street the public have a right of way, a right o user as pedestrians or otherwise which they are entitled to exercise without obstruction; but that does not mean that the Corporation, in the exercise of its right of ownership, cannot grant licences for the putting up of hoardings for advertisements so long as the Corporation does not interfere with the public user of footpath or pavement. In other words, the Corporation must not use a public street in such a way as to be destructive of the purposes of the Act or being in derogation of the unobstructed right of the public to use public streets for passing and re-passing. Subject to these limitations the Corporation can exercise all the powers of an ordinary owner so far as public streets are concerned. In Suhrit Mitra v. Corporation of Calcutta. 62 Cal WN 186 at page 190. P. B. Mukharji, J. has observed that the normal incidence of ownership should be given to the Corporation unless the statute expressly creates any inroad upon them or provides for any restrictions.

17. In our case some photographs of the hoardings have been included in the Paper Book. We have carefully examined these photographs. The actual hoardings appear to have been placed sufficiently high so that no pedestrian can strike his head against any hoarding. There are pillars to support the hoardings; but it cannot be said that these pillars obstruct the pedestrians' right of way. Each case has to be decided on its own facts. In the instant case, the photographs do not show that the Corporation has acted in a manner destructive of the statutory rights of the public for user of a public street.

18. In further support of the view we have expressed we may refer to a few Other provisions of the Act Section 231 prescribes that when any advertisementhas been erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding or structure or within a public street or a public place in contravention of the provisions of the Act, or bye-laws or rules made thereunder, it shall be presumed, unless and until the contrary is proved, that the contravention has been committed by the person or per-sons or their agents on whose behalf the advertisement purports to be.

19. This section shows that there may be hoardings or structures on public streets; but these hoardings or structures must not contravene any of the provisions of the Act. Under Section 232 the Commissioner can compel the person contravening to remove the obstructions.

20. In the instant case, upon examination of the photographs, it does not appear to us that the pillars which have been rat up to support the hoardings contravened the right of public user of the footpath granted by the statute.

21. Mr. Basu has relied on certain sections of the Act to contend that the statute has permitted certain types of obstructions. For instance, under Section 266 the Corporation can erect bathing platforms and public stand-posts. Under Section 267 there are provisions for the placement of hydrants etc. for street-watering etc. Under Section 423 (1) the Corporation can put up at convenient places public receptacles etc. for deposit of rubbish. Under Section 482 (v) the Corporation can establish, furnish, and maintain depots or stores for the sale of milk and other dairy produce from Municipal and other dairies. Mr. Basu's argument has been that except the obstructions expressly permitted by the statute the Corporation cannot allow any other type of obstruction. But it seems to us that this is not a correct approach. The Corporation under the statute has certain obligations in respect of public streets including footpaths and footways towards members of the public. Even though the Corporation is the owner of a public street, it cannot do anything violative of or in contravention of those obligations; but so long as the Corporation fulfils those obligations, the Courts cannot prevent any other act done by the Corporation, as owner of public streets. In this view of the matter we are in agreement with the learned trial Judge that the application under Article 226 was not sustainable.

22. There is one other point we intend to discuss. The appellant is aLimited Company incorporated under the Companies Act, 1956. The appellant may be a rate-payer; it may also have tenants; but the interference of the right complained of is the right of a pedestrian. The Company as such is not a pedestrian. A Company or a corporate body can maintain an application under Article 226 provided that its collective rights are affected. No collective right of the Company as such has been affected by the hoardings. The Company also has no right to move an application under Article 226 on behalf of either of its employees or of its tenants who have independent rights of their own. In these circumstances it does not seem to us that the Company's application under Article 226 was at all maintainable. Reference in this connection may be made to : [1950]1SCR869 , (Charanjit Lal v. Union of India) and : (1970)ILLJ707Cal , (Director-General of Ordnance Factories Employees' Association v. Union of India). The principle is that an association or collective body can move the Court under Article 226 only when its rights as a collective body as distinguished from the aggregate rights of its members are affected by the impugned Act.

23. For all the aforesaid reasons, this appeal is dismissed. There would be no order as to costs.

Salil Kumar Datta, J.

I agree.

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