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Kamal Singh Rampuria and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberMatter No. 182 of 1958
Judge
Reported inAIR1960Cal172,64CWN401
ActsCalcutta Municipal Act, 1951 - Sections 5(42) and 450; ;Constitution of India - Articles 19
AppellantKamal Singh Rampuria and ors.
RespondentCorporation of Calcutta and ors.
Appellant AdvocateP.K. Sen Gupta, Adv.
Respondent AdvocateSankar Ghose, Adv.
Cases ReferredCalcutta Police v. Rolla Ram Chopra
Excerpt:
- orderd.n. sinha, j.1. the facts in this case are shortly as follows: premises no. 39, strend road situated within the jurisdiction of the corporation of calcutta belonged to messrs. rampuria properties ltd. it is a multi-storied building with a large number of rooms in each storey, rampuria properties ltd. went into voluntary liquidation on or about 7th may, 1957. two joint liquidators were appointed. the petitioners state that they have now become the joint owners of the said premises. the premises, ever since its erection, has been let out to tenants. it appears from a statement, being ext. 'b' to the petition that at the relevant time the groundfloor of the said premises was let out to tenants named therein. it is stated that the rooms have been let out to different tenants and except.....
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this case are shortly as follows: Premises No. 39, Strend Road situated within the jurisdiction of the Corporation of Calcutta belonged to Messrs. Rampuria Properties Ltd. It is a multi-storied building with a large number of rooms in each storey, Rampuria Properties Ltd. went into voluntary liquidation on or about 7th May, 1957. Two Joint Liquidators were appointed. The petitioners state that they have now become the joint owners of the said premises. The premises, ever since its erection, has been let out to tenants. It appears from a statement, being Ext. 'B' to the petition that at the relevant time the groundfloor of the said premises was let out to tenants named therein. It is stated that the rooms have been let out to different tenants and except in one instance, there are separate tenants in each room. According to the petitioners, 19 of these rooms are used as shops, 9 are godowns and 10 are offices. On the 9th September, 1957 the Corporation of Calcutta, through the Deputy Licence Officer, intimated to Messrs. Rampuria Properties Ltd. who were then the owners, that the said premises had been declared as a 'market' by the Corporation of Calcutta at its meeting dated 9th August, 1957 within the meaning of Section 5(42)(b) of the Calcutta Municipal Act, 1951. The owners were called upon to take out and pay for necessary licenses under Section 218 of the Calcutta Municipal Act, 1951 (hereinafter referred to as the 'Act') as also a license under Section 451 and to pay the scavenging tax under Section 222 of the said Act. The Liquidators of the Rampuria Properties Ltd., protested and lodged their objections against the declaration of the said premises as a 'market' and prayed for a hearing. The Corporation of Calcutta through the Deputy Licence Officer informed the said Liquidators that no hearing could be given and no previous intimation to the owners of the property was required under the said Act before declaring a property to be a 'market'. On the 20th/24th September, 1957 the said Rampuria Properties Ltd., was served with notice under Section 222 of the said Act calling upon it to pay scavenging tax for the half year ending 30th September, 1957 and for the first half of the year 1957-58. On the 24th September, 1957 notice Was served under Section 451 of the said Act, informing the Rampuria Properties Ltd., that Rs. 400/-was payable for a license for the year 1957-58. In October, 1957 a demand for justice was made and thereafter this rule was issued on the 12th September, 1958 upon the respondents to show cause why appropriate writs should not be issued quashing the said declaration of the Corporation dated 9th August, 1957 and the direction for taking Out a licence or payment of taxes as aforesaid. The point that arises in this case is as follows : The expression 'market' has been defined in Section 5(42) of the said Act as follows :

'(42) the expression 'market' shall be deemed to be synonymous with the expression 'bazar' and means--

(a) a place where persons assemble for the sale of meat, fish, fruit, vegetables, live-stock, or any other article of food of a perishable nature, whether or not there is any collection of shops, or ware-houses or stalls for the sale of other articles in such place, or

(b) any place of trade other than a place referred to in clause (a) where there is a collection of shops or ware-houses or stalls exceeding a number to be prescribed by the Corporation by rules,

which is declared and licensed by the Corporation as a market'

2. Sub-section (47) of Section 5 defines a 'municipal market' as being a market belonging to or maintained by the Corporation. We next come to sections 450 and 451 of the said Act, which appear under Chapter XXVII under the heading 'markets and slaughter places'. The relevant portions thereof are set out below :

'450 (1) The Corporation shall from time to time determine whether the establishment of new private markets shall be permitted in Calcutta or in any specified portion thereof.

(2) No person shall establish a place of the description referred to in Sub-clause (a), Section 5, clause (42), except with the sanction of the Corporation.

451 (1) No person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf --

(a) keep open any private market, or wilfully or negligently permit any place to be used as a private market

Provided as follows :

(1) the Commissioner shall not refuse, suspend or cancel any license for keeping open a private market for any cause other than the failure of the owner thereof to comply with some provision of this Act, or with some bye-law made under section 527 at the time in force;

(2) Every such license shall be renewable annually on the certificate of the Health Officer,

(3) There shall be paid for every license granted under Sub-section (1) such annual fee as may be prescribed by the Corporation'.

3. Under Section 445 of the said Act, markets may be classified by the Corporation into different classes in accordance with such rules as may be made by the Corporation for the purpose. If any person conducts a private market or permits any place to be used as a private market in contravention of the provisions of section 451, then he is liable to prosecution before a Municipal Magistrate. The penalty for establishing a new private market without the sanction of the Corporation is 1000 rupees, and for keeping open etc. a private market or permitting any place to he so used without license or contrary to the terms of the license is 500 rupees, as also a daily fine of Rs. 50/- per day (See Section 537). Under section 452, whenever a Magistrate convicts any person under Section 537 for keeping open a private market or permitting any place to be used as a private market in contravention of Section 451, he shall, on the application of the Commissioner, but not otherwise, also direct that such market be closed and take other steps, to prevent the place being used as a market. Under Section 453 no person shall use as a market any place in respect of which a direction has been given by a Magistrate under Section 452. Penalties have been prescribed for violation of the direction of the Magistrate in that behalf. Section 222 of the said Act appears under Chapter XIV headed, 'Scavenging Tax'. It provides that every person who is an owner and occupier of a market must take out a license under Section 222 and pay for the same a fee according to the average quantity of offensive matter and rubbish removed daily by the Corporation, at the prescribed rate. These licenses are annual licenses.

4. On or about 16th December, 1955 rules were framed by the Corporation under Section 5(42)(b) of the said Act, This was published in the Calcutta Gazette dated 29th December, 1955. As this resolution is difficult to procure it will be useful to set it out.

1. For the purposes of license under Sections 218 and 451 and scavenging tax under Section 222 of the C. M. Act 1951. A collection of shops or warehouses or stalls required to make any place of trade a 'market' as defined in Section 5(42) (b) of the Act, shall contain at least thirty shops or warehouses or stalls.

2. Such collection of shops or ware-houses or stalls shall not be deemed to be a market unless it is located in a premises bearing one municipal number :

Provided that it may be located in premises bearing two or more municipal numbers, if --

(i) the premises bearing such municipal numbers are contiguous to one another, and

(ii) if the ownership of such premises is vested in the same person or body of persons.

3. The owner or owners of premises constituting the entire place of trade within the limits defined or determined by the Commissioner shall be deemed to be the owner of the market for the purpose of imposition of taxes, license fees or other sums payable to the Corporation.

4. If any place of trade, after being declared as a market, is Sub-divided into two or more shares with separate allotments and as a result of such Sub-division, the total number of shops or warehouses or stalls in each portion falls short of the number of shops or ware-houses or stalls prescribed in Rule 1, such place of trade shall continue to be a market, the co-owners being jointly and severally liable for payment of all taxes, license fees or other sums.

5. As will be observed from the rules set out above, the minimum number of shops, ware-houses or stalls, which may be declared as a 'market' under the Act is 30. It appears from the proceedings of the Standing Public Utilities and Markets Committee dated 4th June, 1957 that the Health Officer and the License Officer of the Corporation reported to the Committee that premises No. 39, Strand Road owned by Messrs. Rampuria Properties Ltd., should be declared as a 'market' within the meaning of Section 5 (42) (b) of the said Act and the rules framed under it, as the said premises contained more than 30 shops, ware-houses or stalls. The Standing Committee resolved that the said premises should be declared as a 'market'. On the 9th August, 1957 this recommendation of the Standing Public Utilities and Markets Committee was confirmed by the Corporation. It is stated that this amounted to a 'declaration' by the Corporation of the said premises as a 'market' within the meaning of Section 5 (42) (b) of the said Act. We are now in a position to understand the dispute that has arisen in this case. According to the petitioners, the premises No. 39, Strand Road which is now owned by them, does not contain 30 shops, ware-houses or stalls in the groundfloor and therefore, it does not come within the definition of 'market' under Section 5 (42) (b) of the said Act, read with the rules framed thereunder. It is stated that the petitioners never had any opportunity of bringing this fact to the notice of the Corporation which made a 'declaration' ex-parte behind their back, and was trying to compel the petitioners to take out a license and to pay all kinds of taxes upon the footing that there was a market situated in premises No. 39, Strand Road. The objections of the petitioners have been formulated as follows :

(1) That the Corporation of Calcutta has no power to declare any place as a market, inasmuch as Section 5 (42) (b) is merely a definition section and there is no other provision in the body of the Act or in the rules framed thereunder, granting power to the Corporation to declare any place as a 'market'.

(2) Assuming that the Corporation has the power to declare a place as a 'market' within the meaning of Section 5 (42) (b) of the said Act, then such a declaration can only be made upon notice to the person whose right of property is affected, and after hearing his objection.

(3) If it is held that the Act or the Rules contemplates such a declaration without notice or without hearing the parties then the relative provisions are ultra vires, inasmuch as they violate the fundamental rights of the petitioners under Article 10(1)(f) and (g) of the Constitution.

(4) In any event, the Corporation could not ask for any license fee or taxes prior to the declaration.

6. Before dealing with the points raised, the provisions of the Act mentioned above require some preliminary comment. There can be no doubt that, although the expression 'market' has-been defined in Section 5(42), and although the definition makes it clear that a market must be declared as such and licensed by the Corporation, yet there is no substantive provisions in the body of the Act for making any such declaration. Coming now to Sections 450 and 451, we find that the expression 'private market' has been used. Although under Section 445, markets may be classified by the Corporation into different classes, there does not seem to be any mention in the Act or the Rules of any other kind of market excepting municipal markets. In my opinion both Sections 450 and 451, in so far as they relate to a 'market', deal with private markets, that is to say, markets owned by private persons. According to Sub-section (1) of Section 450, the Corporation may determine from time to time whether new private markets shall be allowed to be established at all in the city of Calcutta or in any specified portion thereof. It does not appear however that the Corporation has made any such determination at any time. While Sub-section (1) speaks about all kinds of private markets, Sub-section (2) is confined to the establishment of a place 'of the description referred to in Sub-clause (a), clause (42) of Section 5', and this cannot be done except with the sanction of the Corporation, The first question that arises is as to whether private markets are also governed by the definition contained in Section 5 (42) of the said Act. Sub-section (2) of Section 450 indicates that it does. It has been argued, and I do not think without reason that if a 'market' is one which has been declared and licensed by the Corporation, then it would be incorrect to speak about a private market requiring a license. Strictly speaking, until a license has been taken out, it would not be a 'market' as defined under Section 5 (42). Then again, we find that Section 5(42) speaks about 'declaring' a market. Sub-section (1) of Section 450 speaks about 'permitting the establishment of a new private market'. Sub-section (2) of Section 450 speaks about 'sanctioning' a market for sale of meat, fish, fruit, vegetables etc. which are articles of a perishable nature. The question may well be asked whether these terms are synonymous or not. It is, I think indisputable, that to obtain a 'sanction', the party concerned must apply for it. Similarly, for obtaining a permission to establish a new private market, the party concerned must move in the matter and ask for such permission from the Corporation. Coming now to a 'declaration', is it or is it not necessary for the party concerned to ask for such a 'declaration'? My attention has been drawn to a decision of Mukherji, J. in Revision No. 166 of 1955 (Sohonlal Baiti v. Corporation of Calcutta) judgment dated 17th May 1955. In that case, the Corporation of Calcutta, upon its own initiative made a declaration permitting the establishment of a new private market at premises Nos. 7 and 7/1, Ramlochan Mullick Street. The learned Judge held that he could find no warrant in the Calcutta Municipal Act, 1923 for such a gratuitous sanction or declaration on the part of the Corporation. This decision however is not of great assistance, as in the 1923 Act there was no mention of a 'declaration' by the Corporation in the definition of a 'market' as set out in Section 3 (39). Sections 395 and 396 of the old Act, however, corresponded to Sections 450 and 451 of the present Act. In the definition of a 'market', as set out in Section 5(42)(b) of the present Act, the expression used is a 'collection of shops, ware-houses or stalls exceeding a number to be prescribed by the Corporation by Rules.' There is nothing in this particular provision to say whether the number to be prescribed should refer to each of the classes mentioned therein, namely, shops, ware-houses or stalls, or to them collectively. Also it does not say as to whether these shops or ware-houses or stalls should be in one premises or in more than one premises. The only power granted under section 5(42)(b) upon the Corporation is to prescribe the number. As stated above, the Corporation has framed rules under the power given under Section 5(42)(b) of the said Act, and has not only laid down the number but also the location. It has been prescribed that normally it should be located in one premises but under certain circumstances it may be located in more than one premises. In the rule as framed, it has been laid down that a collection of shops, ware-houses or stalls required to make any place of trade a 'market' as defined in Section 5(42Xb) of the said Act, shall contain at least 30 shops, ware-houses or stalls. Here again, there is no indication as to whether the number of 30 relates to each heading or is merely used collectively. In other words, it is not clear whether there should be 30 shops, 60 ware-houses or 30 stalls or whether it would be sufficient to have 30 shops, ware-houses or stalls collectively. Assuming however, that the definition section in the present Act namely, section 5(42)(b) gives sufficient power to the Corporation to declare a collection of shops, ware-houses-or stalls of the prescribed number as a 'market', the question still remains as to whether such a declaration can be made ex parte without any notice to the party whose right of property is affected and without hearing his objection. Supposing the Corporation officials make an ex parte report saying that there were 30 shops, while in fact there are only 29, where is the opportunity given to the owner of the property to object to the declaration? Not only has the Act no express provision for making a declaration, it has also prescribed no procedure for the making of it. It gives no opportunity to the owner of the premises to make any objection, and there is no provision for appeal or revision from the order. This, in my opinion, is the most important and glaring defect and will have to be dealt with in greater detail presently. I shall now proceed to deal specifically with the points that have been raised. With regard to the first point, I have already mentioned that apart from the definition set out in Section 5(42) of the Act, there is no provision in the body of the Act which either confers upon the Corporation any authority, or lays down a procedure, in, respect of a declaration by the Corporation of any place of trade as a 'market'. Under the Act, provisions have been made for framing rules, but no rules have been made in this behalf. The first question that arises for determination is whether the Corporation has at all got the power to make such a declaration. This is an aspect which I have discussed in A. M. Arathoon v. Corporation of Calcutta, : AIR1957Cal79 . In that case, I had to construe Section 175 of the said Act, which related to the amalgamation of municipal premises. Section 175 laid down that if any land or building bearing two or more municipal numbers or portions thereof, be amalgamated into one or more new premises, the Commissioner shall assess them, on amalgamation, after assigning to them one or more numbers, as the case may be. Except for this provision, and what could be implied from Section 207 of the Act, there is no express provision in the Act for amalgamation. The question was whether such power could be implied. I was inclined to hold that the power of amalgamation existed and should be held to exist, by reasonable implication. In Sree Sridhar Jew v. Corporation of Calcutta, : AIR1959Cal320 , a Division Bench of this court differed with my decision but it was on the ground that upon a construction of Section 175, and even after referring to Section 207, the learned Judges were unable to hold that the power of amalgamation had been given to the Commissioner. According to the learned Judges, amalgamation referred to in Section 175 meant amalgamation by the owner himself. It will thus be seen that the learned Judges did not hold that the power to do something which is mentioned in the Act, but for which there is no express provision, cannot be implied. I am, therefore, stilt justified in thinking that such implication is possible. In Arathoon's case, : AIR1957Cal79 (supra), I gave reasons for coming to this conclusion. I shall briefly reiterate the same. In Maxwell on the 'Interpretation of Statutes' Ninth Edition page 360 the following principles have been laid down--

'Whenever a Corporation is created by Act of Parliament, with reference to the purposes of this Act, and solely with a view to carry on these purposes into execution, not only the objects which the Corporation itself may legitimately pursue must be ascertained from the Act itself, but the power which the Corporation may legitimately use in furtherance of these objects must either by ex-pressly conferred or derived by reasonable implication from its provision.

Where an Act confers a jurisdiction, it impliedly also grants the power of doing of such acts, or employing such means, as are essentially necessary to its execution.'

7. In Baroness Wenlock v. River Dee Co., (1883) 10 AC 354 at p. 362, Lord Watson said as follows:

'Whenever a Corporation is created by Act of parliament, with reference to the purposes of the Act, and solely with a view to carry on these purposes into execution, I am of opinion, not only that the object which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the Corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions.'

8. In Deuchar v. Gaslight and Coke, (1924) 2 Ch 426, Pollock M. R. laid down two principles which are as follows:

'1. That whatever may fairly be regarded as incidental to or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held, by judicial construction to be ultra vires.

2. But it must be shown that the business can fairly be regarded as incidental to or consequential upon the use of the statutory power, and it is a question in each case whether it is so or whether it is not so.'

9. The Corporation of Calcutta which is in charge of its municipal affairs, must look after the markets situated therein, because that is always considered as an integral part of the duties of a Municipal Corporation. According to the scheme of the Act, it does so by imposing a number of restrictions. Firstly, it can decide as to the area in which markets can be opened or maintained. Secondly, it imposes conditions by the issue of a license, thereby controlling the conduct of persons who run a market. Thirdly, it has to arrange for its sanitation. One of the important services to be performed is scavenging for which a tax is imposed. It is easy to see that if the Corporation is to exercise its control over markets the first thing that is of importance is the provision in the Act defining a market. In this case, one of the essential features of the definition is that the Corporation should 'declare' a place of trade as a market. Without such declaration, such a place would not be a market within the meaning of the definition. In my opinion, although the power to 'declare' is not given expressly in any part of the Act or the rules, it must be implied. The fact however that the power of declaring a place to be a market is to be implied from the definition and not expressly provided for in the body of the Act makes it necessary for the details to be provided for by the promulgation of rules. No such rules have however been framed. If such rules had been framed and provided for a procedure for giving notice to the parties affected, the difficulty that has arisen in this case would not have arisen See State of Bombay v. United Motors (India) Ltd., : [1953]4SCR1069 , where the promulgation of rules saved the Act. The points Nos. 2 and 3 will have to be dealt with together because one has a direct bearing on the other. In fact, they constitute the real point in this case. It will be remembered that the Corporation has, by a resolution dated 16-12-1955 prescribed the minimum number of shops or ware-houses or stalls in a place of trade which would render it a 'market within the meaning of the definition in Section 5 (42) (b) of 'the said Act. I have set out the relevant rules above, from which it will appear that the minimum number is 'at least 30 shops or ware-houses or stalls'. I have also pointed out above that the meaning of this is not quite clear. In other words, it is not clear whether there should be individually 30 shops or ware-houses or stalls or collectively. Giving it however a reasonable meaning I hold that it means that there should be 30 shops or ware-houses or stalls collectively, that is to say, there must be firstly a place of trade and secondly, in the place of trade there must be a collection of 30 shops, ware-houses or stalls. The number 30, relates to the total number, so that even if there be one shop, 28 ware-houses and one stall, the test is passed. Reading the rules, we find that an objective number has been mentioned. It is clear therefore, that before a declaration is made, the place of trade mentioned in Section 5 (42) (b) must have the minimum number of shops, ware-houses or stalls prescribed by the rules. To this extent, the matter is not left to the discretion of the Corporation. The question however, is by no means simple. I have already referred above to two sections, viz., Sections 450 and 451 of the Act. Under these sections, various restrictions have been imposed upon the opening or conducting of a private market. Firstly, the Corporation must from time to time determine whether the establishment of a new private market shall be permitted in Calcutta or in any specified portion thereof. Nobody has been able to inform me as to whether the Corporation has exercised its statutory duty in that behalf. However, it is clear that it has power to stop the establishment of new private markets altogether, in the city of Calcutta or in any specified portion thereof. The underlying idea seems to be quite clear. Since the Corporation has a duty to regulate such markets within its Jurisdiction, it has been given a power to limit the number of such markets, and to see that there do not grow up too many of them. It may also prevent markets from being constructed in specified areas, for example, residential areas. The exercise of this power however necessarily affects the fundamental rights of citizen to any on trade or business. We are not concerned in this case with Sub-sections (2) and (3) of Section 450, because, we are now dealing with a place of the description referred to in Sub-clause (a) of Clause (42) of Section 5. It will therefore be sufficient to point out that even in such a case, the sanction of the Corporation is necessary. Under Section 451 (1) (a) nobody is allowed to keep open a private market or permitted to use it as such except under a license granted by the Commissioner. It is therefore, a further inroad into the rights of a citizen to carry on his business. Scannine the law as it stands, we see that a place of trade where there is a collection of shops, warehouses or stalls of the description mentioned in Section 5 (42) (b), does not require a prior sanction as is necessary in cases coming under Section 5 (42) (a), In the case of a sanction it is obvious that there must be an application before the Corporation for sanction. Similarly, where there is a collection of shops, ware-houses or stalls of the description mentioned in Section 5 (42) (b) read with the rules, a license must be taken out under Section 451 (1) (a) and for that purpose somebody has got to make an application before the Corporation for the issue of a license. Coming now to a 'declaration', under Section 5 (42), what is the procedure to be adopted? Has anybody to apply for such a declaration or can the Corporation make such a declaration suo moto? Since the 'declaration' involves onerous responsibilities, it is very unlikely that the owner of a market will himself ask for such a 'declaration'. In my opinion, provided that the place is of the description mentioned in Section 5 (42) (b), the Corporation has the power to make a 'declaration' suo motu. Without such a 'declaration', the definition of a market is not satisfied and therefore, where the Corporation finds that in fact a market is being conducted, it has power to declare it as such. We now come to the penultimate question, namely, as to whether such a declaration can be made by the Corporation without notice to the party or parties concerned, and without hearing their objections. In fact, this is the point that has been argued before me at length.

10. It is always a vexed question as to whether a particular action taken under a statute requires notice to be given or not. Where the statute itself provides for the issue of a notice, the problem is solved and such a notice forms part of the statutory procedure. Where however, a statute is silent on the subject, the question arises whether the giving of such notice and hearing of the party should be read into the Act by implication. The first thing to be considered in this respect is as to whether the action taken or order made is judicial, quasi-judicial or merely administrative. The question whether a particular action or order is judicial or quasi-judicial or merely administrative is always a difficult question. Various tests have been laid down for determination of such questions. In this case, however, I am spared from this difficult task because it is admitted that a 'declaration' under Section 5 (42) (b) by the Corporation is an administrative one. Therefore, we come down to the question as to whether in an administrative order of this description, the provision as to giving; of notice and hearing objections should be imported by implication, and whether we should introduce rules of natural justice. I think that it may be safely accepted that ordinarily an administrative order does not require previous notice or hearing of the objections of the party affected, unless there is some law which provides for such notice or such hearing. To this principle however, there are certain exceptions. One of the recognised exceptions is the case where right of property is affected. The matter has been explained by me in Luxmi Janardan Jew v. State of West Bengal, : AIR1959Cal402 . I have pointed out that there is a line of cases in England which is authority for the proposition that in the absence of a statutory provision to the contrary, no man can be deprived of his property or his right to property affected, without having an opportunity of being heard in his defence. The leading cases are Cooper v. Board of Works for Wandsworth District, (1863) 14 C. B. N. Section 180; Hopkins v. Smethwick Local Board of Health, (1890) 24 QBD 712 and Smith v. The Queen, (1878) 3 AC 614. The principles laid down in these cases may be shortly put in the words of Erie C. J., in Cooper's case, (1863) 14 CBNS 180 (supra), as follows:.

'Although the words of the statute, taken in their literal sense, without any qualification at all, would create a justification for the act which the District Board has done, the powers granted by that statute are subject to a qualification which has been repeatedly recognised, that no man is to be deprived of his property without having an opportunity of being heard ...............'

11. In the same case Willes J., said as follows:

'I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds and that that rule is of universal application and founded upon the plainest principles of justice.'

12. Although Willes J., was speaking about a 'Tribunal', the cases mentioned above are cases of administrative orders. In Cooper's case, (1863) 14 CBNS 180 (supra), the Board of Works, without a notice to the owner, demolished a building. In (1878) 3 AC 614 (supra), there was a proclamation by Government declaring a lease to be forfeited without notice to the lessee. In that case, the Judicial Committee held that although the Act was purely ministerial, a hearing was necessary, in accordance with the elementary principles of natural justice. If this is the state of law in England, then the state of law must be so in India, where we are governed by a Constitution which has guaranteed to a citizen certain fundamental rights, including the right of holding property and carrying on the business of his choice. This is actually the third point taken in the case, and as I have stated, is connected with the second point. The provisions in the Constitution with which we are concerned are Article 19(1)(f) and (g). By Clause (f) a citizen has been guaranteed the right to acquire, hold or dispose of property, and by Clause (g) he has been guaranteed the right to practise any profession or to carry on any occupation, trade or business. In both these cases there is an exception, namely that it does not prevent the State from making any law imposing reasonable restrictions in the interests of the general public. The restrictions in the creation or continuance of a private market within the city of Calcutta necessarily affects both these rights. In this case, the petitioners state that they habitually let out their properties to various tenants. From their point of view, they are not concerned as to whether the tenants carry on business within the premises or not. The house is however situated within a commercial area, and doubtlessly it was intended that it should be tenanted by commercial people. But, the owner might himself have shops, ware-houses or stalls in a house. Indeed, the provisions of law we are investigating, make no distinction between the case of an owner letting out the premises to others or carrying on business himself in his own premises. In any case, if the requisite collection of shops etc., are there, it can be declared as market and the taking out of a license would be essential. Therefore, the right to carry on business is affected in several ways. Under Sub-section (1) of Section 450. the right to carry on business may be totally extinguished. By a declaration, with which we are concerned in this case, the right of a person to carry on business is necessarily affected. If it is a case of a place of business of the description to be found in Section 5 (42) (a), then previous sanction would be necessary. In the case of a place of trade of the description to be found in Section 5 (42) (b), if it is declared to be a market, then it is implied that objectively there is a collection of shops, warehouses or stalls exceeding the prescribed number. If the Act merely stated that a collection of such shops, ware-houses etc., would require a license, that would be a different matter. In this case however, there has to be a deliberate act on the part of the Corporation, namely a 'declaration'. Once the 'declaration' is made, it will be presumed that it is a market as denned in the Act and that as a consequence it is a collection of shops, warehouses or stalls of the prescribed number or more. If this is to be done behind the back of the owner or the parties concerned, then what is the consequence? It is found that the Act and the Rules do not contain any provision for giving notice or hearing objection. In this particular case, the Health Officer and the License Officer made certain reports of which the parties were not aware, and thereupon this 'declaration' was made. Upon the 'declaration' being made, the right of property of the owner is at once affected, because according to the provisions of the Act and the Rules, the property becomes subject to new burdens. Firstly, permission to carry on a market may be legally refused altogether. Secondly, the owner would have to take out a license which is subject to onerous conditions and these conditions will have to be complied with. A license means a license-fee. In a multi-storeyed building of this description, the fees are necessarily large. Then again, scavenging tax has to be paid. Markets are subject to various conditions of the Act regarding inspection etc. Therefore, it follows that a 'declaration' under Section 5 (42) of the said Act necessarily affects the rights of the owner under Article 19(1) (f) and (g) of the Constitution, and in particular it affects his right of property. It seems to me to be violative of the rules of natural justice that such a declaration should be made without notice to the party affected or without hearing his objection. These onerous burdens become attached to his property and business as a result of the declaration, and yet neither the Act nor the Rules give him any opportunity to put forward any objection. In this particular case, the objection is that there are not 30 shops, ware-houses or stalls. It seems to me strange that the premises belonging to the petitioners should be declared as a market without hearing them on the point as to whether the objective tests laid down by the Act read with the rules have been satisfied or not. They are said to have no right to put forward objections and no right of appeal or revision. The result is that the Corporation may at its sweet-will declare a property to be a market and mere is no legal procedure for challenging such a 'declaration'. In my opinion, that is unthinkable, and cannot be supported in law.

13. Mr. Ghosh appearing on behalf of the respondents has admitted that in the case of an administrative order there is a class of cases based on the English authorities mentioned above, where notice is necessary since right of property is affected. He maintains however, that the rule comes into play only where the property is directly affected, but not where the encroachment upon the property right is only incidental or indirect. In support of this proposition he referred me first of all to the very cases which I have mentioned above. He says that they are either the case of a building being demolished or a lease, being forfeited, that is to say, actions leading to the destruction of the entire property. He has cited also the following cases in support of his proposition: Robinson v. Minister of Town and Country Planning, (1947) 1 All ER 851. Section 1 (1) of the Town and Country Planning Act 1944 provided that where the Minister of Town and Country Planning was satisfied that it was requisite for the purpose of dealing satisfactorily with extensive war damage in certain areas, that a part of such land should be let out afresh and redeveloped as a whole, he might make an order declaring all or any of the lands in which an area to be subject to compulsory acquisition. It was held that the matter depended on the subjective opinion of the Minister, and as such it was an executive Act and not a judicial or quasi-judicial decision and cannot be controlled by the Courts. It was held that inasmuch as no objective test was possible, the opinion of the Minister, if it is bona fide, cannot be interfered by the Court. I do not see how this case is of any assistance. Where a matter is dependent upon the subjective satisfaction of an executive authority, it is sell settled that the Court cannot interfere, unless there are mala fides. In the present case, however, the matter is not at all subjective. The declaration of a market depends on an objective test. As I have shown above, a place of trade having a collection of shops, ware-houses or stalls can only be declared as a market if it contains the prescribed number or more. In the case of a private market, a license has to be taken, and therefore, the Corporation authorities must determine objectively whether it is a market or not. The whole complaint in this case is that no means or opportunity is given to the owner of the market to agitate the question as to whether the objective tests have been satisfied or not. In my opinion, this authority is not applicable to the facts of this case. Mr. Ghose next refers me to a decision of the Rajasthan High Court, Madho Ram v. The State, . In that case, an order was passed under Section 172 of the Bikaner Municipal Act, 1923 superseding a municipality. It was held that such an order was an administrative order and not a quasi-judicial one. It was further held that the test to be applied was a subjective test and the opinion of the Government was final and Government was not bound to hear the municipality before passing the order of supersession. Again, I do not think that this case is of any assistance because the test to be applied is a subjective test. The next case cited is also a decision of the Rajasthan High Court, Kishore Singh v. State of Rajasthan . This is a case under the Indian Arms Act. It was held that under Section 18 of the said Act, there was no provision for giving a hearing before cancelling a license. In my opinion, this case has no bearing on the matter at all. The question of cancellation of a license is by itself a very complicated affair and it is unnecessary for our purposes to go into the conflict of decisions on the subject. In Commissioner of the Calcutta Police v. Rolla Ram Chopra, 51 Cal WN 833 it was held by Gentle J., that the Commissioner having issued a license for running a Boarding House cannot cancel the same or rescind the order at his will and pleasure without hearing the party concerned. In my opinion, the giving of notice and hearing of objections, in cases where right of property is involved, is not restricted to cases where the right is wholly destroyed. It is also applicable to rases where the right is substantially affected.

14. In my opinion, before a declaration is made by the Corporation under Section 5 (42) (b) an opportunity must be given to the owner of the market concerned to prefer his objection and he must be heard. The question has arisen as to the particular procedure that should be adopted for hearing a party. Mr. Ghosh has argued that under the Calcutta Municipal Act, the Corporation of Calcutta is a different entity from the Standing Committees and it meets according to the procedure prescribed, and all decisions are made by passing resolutions at such a meeting. He points out that there is no procedure laid down whereby a private person can be heard at a Corporation meeting. Plausible as this objection may seem at first sight, there is really no substance in it. It will appear from the facts that I have stated herein before, that all such matters come through the Standing Public Utilities and Markets Committee. Indeed, the particular resolution that is relevant, is a resolution originally passed by the Standing Committee, which considered the report of the Health Officer and the License Officer and the resolution was merely placed before the Corporation and confirmed. There is ample provision for hearing a party by the Standing Committees, and in fact parties are always heard by the Standing Committees. Under Section 30, the Corporation may also delegate to the Commissioner any of its powers, duties and functions. The Corporation can easily make the necessary delegation to the Commissioner of the power to hear objections, before making a declaration. The position is that if it is held that a declaration of this kind can be made without notice to the party concerned and without hearing him, then the law which provides for such declaration would become invalid, as being an unreasonable restriction on the fundamental rights of a citizen to carry on business or hold property. It is however unnecessary to hold that the provision of law granting the power is itself ultra vires. It is sufficient to imply that the exercise of the power is conditional upon giving notice to the parties affected, and to take necessary action only after hearing their objections.

15. In this case it is admitted that no notice was given prior to the making of the declaration and the petitioners had no opportunity of preferring any objection. Consequently this rule must be made absolute and the resolution of the Corporation dated 9-8-1955 is quashed and or set aside by a writ in the nature of certiorari and there would be a writ in the nature of mandamus directing the respondents not to give effect to it. There will also be a writ in the nature of mandamus directing the respondents not to give effect to the letters or notice dated 9-9-1957, 20/24-9-1957 and notice under Section 451 dated 24th September, 1957, mentioned in the petition. In view of this order it is unnecessary to consider the other points raised in this application. It is however necessary to mention that the petitioners have stated that the respondents have initiated prosecutions against them before the learned Municipal Magistrate for running a private market without taking out a license as required under Section 451. It is prayed that these prosecutions may be quashed. Mr. Chose appearing on behalf of the respondents has drawn my attention to a decision of the Criminal Appellate Bench of this Court Superintendent and Remembrancer, Legal Affairs State of West Bengalv. Iswar Lakhi Janardan Thakur Tew, 0043/1960 : AIR1960Cal170 where it has been heldthat a private market which is not 'declared' tobe a market under Section 5 (42) (a) requires a licenseunder Section 451 and failure to take out a license entails the liability of prosecution under Section 537 readwith Section 451. If that be so, then simply because Iam setting aside the declaration under Section 5(42)(b), itmay not follow that the prosecutions which havebeen launched are bad. I do not see however whyI should concern myself in this jurisdiction uponthis point at all. As regards the prosecutions, thepetitioners must take appropriate steps in the proper jurisdiction. In my opinion, this part of theapplication must fail and the rule discharged. Theinterim order staying the prosecutions must bevacated. There will be no order as to costs. Thisis without prejudice to the power of the respondents to make a declaration under Section 5 (42) (b) ofthe Act after giving notice to the parties and inaccordance with law.


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