1. The facts of this case are fully stated in the judgment of Ameer Ali, J., dated 27th January 1936. It is the judgment against which this appeal has been brought. It is not necessary, I think, that I should re-capitulate the facts in any great detail. But in order to understand the case it is necessary that I should briefly refer to the facts. The suit, though in form, it was brought by an individual Anil Kumar Bhattacharya, was really brought by the National Swimming Association of which Anil Kumar Bhattacharya was one of the joint secretaries. Therefore, the contest with which we are concerned is one between the National Swimming Association and the Corporation of Calcutta who are the defendants in the suit. The National Swimming Association was formed in the year 1924 and was registered under Act 31 of 1860 and it is stated in the plaint that the registered office of the Association is at the Pavilion in Cornwallis Square in the city of Calcutta, and this suit is concerned with swimming in the tank which is situated within that Square.
2. In the year 1924 a resolution was passed by the District No. 1 Standing Committee of the defendant Corporation on 15th July 1924, and was confirmed by the District Committee on 7th August 1924. The Parka Committee, we are informed, is the subcommittee of the District No. 1 Standing Committee of the Corporation. By that resolution it was resolved that certain clubs should be ranged into two groups and that these groups should be restricted to the northern half and the southern half of the tank respectively. The members of the clubs were allowed to swim across the boundary and to use the whole length of the tank one day each in the week. The clubs were grouped in accordance with the schedule attached to the Resolution and the clubs included in what is called the North Group were the National Swimming Association which, as I have said, to all intents and purposes is the plaintiff in the present suit, the Hatkhola Club and the Capital Swimming Club. The last two mentioned clubs have since died out and we are not concerned with them. It was determined by the resolution that the clubs forming the North Group should be allowed to erect a platform, a tent, a goal on their side of the tank subject to the approval of the District Engineer. It was also provided that the constituents of each group should share the proportionate cost of maintaining the platform and other appurtenances on their side. Having regard to the fact that the Hatkhola Club and the Capital Swimming Club disappeared, the position eventually was that at the northern portion of the tank the chief users were the National Swimming Association who had originally erected a tent but subsequently erected what has been described as a temporary shed but which is really the pavilion referred to in para. 1 of the plaint. The shed was erected as a result of some correspondence which began on 4th February 1925 and was erected in accordance with a plan sanctioned by the proper authorities of the Corporation.
3. All seem to have gone well up to the year 1931 when there was a resolution of the District Committee of the Corporation reserving the Cornwallis Square for the use of ladies only from 5 A.M. to 6-30 A.M. during the summer months and from 6 A.M. to 7.30 A.M. during the winter months. By reason of the Square having been reserved in that way, it seems to have occurred to the National Swimming Association to inaugurate a ladies' section of the club in order that ladies might swim in the tank during the hours when the Square was closed to persons of the other sex.
4. In the year 1933 the National Swimming Association wrote to the District Engineer with regard to an arrangement to be made for giving swimming facilities to ladies of the Women Athletic Club during what was described as purdah hours and it was then stated that the Women's Section of the National Swimming Association would be opened as from 1st January 1933. In connexion with that, permission was sought by the National Swimming Association to screen the northern half of the tank. There seems to have been some delay on the part of the Corporation and the local District Committee in replying to the letter of the National Swimming Association dated 20th May 1933, and on the 29th of that month a reminder was sent by Mrs. B. Roy, President of the Women Athletic Club. In that letter which was addressed to the Chief Executive Officer of the Corporation, Mrs. B. Roy pointed out that the National Swimming Association had applied on 20th May for the permission of the Corporation to erect two or three posts and a wire on the Beadon Street side to screen off ladies' swimming in the Cornwallis Square Tank and that a large number of girls were awaiting to avail themselves of the privilege and that considering the urgent necessity of this arrangement the Corporation should be so good as to grant permission at an earlier date as the Club intended to start it on 1st June 1933. Eventually, on 8th June the District Engineer of District No. 1 wrote a letter to the National Swimming Association saying that there was no objection to the proposed screening off the northern portion of the tank and accordingly on the same date there was a resolution passed by the National Swimming Association which was designed to put into operation the scheme for facilitating swimming by the ladies who belonged to the Women's Section of the National Swimming Association, and on 1st July the Women's Section was duly opened. Some few days later, there was a resolution of the Parks Committee to this effect:
That ladies be allowed to swim in the Cornwallis Square during period reserved for women, provided that a committee composed entirely of women be formed to manage the Ladies' Section and that two ladies nominated by the Parks Committee be taken as representatives of the said Committee.
5. It seems that a committee of some kind was set up and began to function. The National Swimming Association held a meeting about that time in which they complained that the Women's Section of the National Swimming Association was not conforming to the rules and regulations of the Association but was entering into obligations whereby the credit of the Association was being pledged and was undertaking liabilities on behalf of the National Swimming Association which they had never been authorized by the governing body of the Association to do and which at the time it was not within the province of the Women's Committee to do. The result was, to put the matter shortly, that in the end the National Swimming Association found itself in the position of having to take steps to dissociate itself from the Women's Committee and eventually they wrote to the individual members of it saying, in effect, that the Women's Committee could no longer be recognized as constituting any committee for which the National Swimming Association was responsible. In other words, the National Swimming Association sought to dissolve the committee which had been functioning as the Women's Committee.
6. It appears that there was an organization which was called the 'All India Women Conference' which had been taking an active interest in the question of women having facilities for swimming in the tank. The ladies connected with that Conference were intervening in a way which did not commend itself to the National Swimming Association with the result that trouble was commenced and there was friction not only because the Women's Committee in the way I have indicated had been incurring liabilities and entering into obligations which were affecting the credit of the National Swimming Association but also because they were seeking to compel the National Swimming Association to accept, as members of the Women's Section, persons who were not prepared to pay the proper subscriptions and who were not conforming to the relevant rules and regulations of the National Swimming Association with regard to subscriptions. The letter to which I have referred, that is to say, the letter written by the National Swimming Association to the individual ladies who had composed originally the Women's Committee, was dated 23rd May 1934, and though it was couched in courteous terms, it was intended, as I have said, to bring about the dissolution or, at any rate, cessation of the functioning of the Committee which was at that time purporting to manage the swimming by the ladies in the Cornwallis Square Tank. The effect of that letter was, if I may use the expression 'to add fuel to the fire', at any rate it brought matters to a head. It had this unfortunate result that some of the ladies appeared to have taken steps to bring the matters into controversy to the attention of the local Parks Committee or rather the Local District Committee and more than that an organization was formed outside the National Swimming Association which gave itself the name of Women's Athletic Club. That club was obviously an association of, if I may use the expression, the dismissed members of the original Women's Committee or at any rate those ladies who were the moving spirits in that Committee. The club having been formed, proceeded to make an application to the Corporation behind the back of the National Swimming Association. This application was addressed to the Chief Executive Officer through the District Engineer of District No. 1 and in it there was this request that the ladies might be allowed to swim in the Cornwallis Square tank during the hours reserved for the ladies and that their Club and Executive Committee should be recognized by the Corporation as the proper committee to which the management of the swimming by ladies should be entrusted. In other words, this Women's Athletic Club sought recognition of the Committee as the committee contemplated in the Resolution of the Parks Committee of 5th August 1933 and there is no doubt that what was aimed at by the Women's Committee was an acquisition of a monopoly with regard to the management and control over swimming by ladies in the tank in the Cornwallis Square. There seems to be no doubt that from that time onward the Women's Athletic Club proceeded to wage a somewhat underhand warfare against the National Swimming Association. On 1st June 1934, the District Engineer of District No. 1 wrote from the Engineer's Department of District No. 1 to the Corporation of Calcutta a letter in which he said this:
With reference to your application of the 26th ultimo (letter addressed to the Joint Secretaries of the Women's Athletic Club) asking for temporary permission to swim in the above tank during hours for which the Park is reserved for ladies, I am desired to inform you that the Chief Executive Officer has been pleased to grant the same as you have been doing till the opinion of the District 1 Standing Committee is obtained as regards the recognition of your club and the Executive Committee as well as the payment of proportionate cost by you towards the maintenance and upkeep of the pavilion.
7. As I have already indicated, from the time the Hatkhola Club and the Capital Swimming Club had disappeared, the pavilion in question had become more or less the property of the National Swimming Club alone or at any rate it had come entirely under their domination and control. On 8th June 1934 the District Engineer demanded the removal of a certain portion of the apparatus, if I may so describe it, of the National Swimming Association on the ground that it constituted an unauthorized structure. On the 30th June a letter was sent to the Corporation purporting to be signed by ten citizens of Calcutta pointing out that it was objectionable that a Ladies' Swimming Club should be attached to and managed by an association mainly managed by young men. But an examination of the names of the signatories on the document indicates that this was another move in the conflict which was being carried on by the Women's Athletic Club, and on the 6th August that club sent a letter to the Chief Executive Officer of the Corporation of Calcutta in which they made several requests, namely:
1. That our Club may be permitted to swim in the Cornwallis Square tank during the hours for which the said Square is reserved for ladies. 2. That the Corporation Representatives may be asked to serve in our Executive Committee (three of the representatives are already on our Executive Committee). 3. That our club may be permitted to erect a tent on a suitable plot of land in the said square, for the use of our members. 4. That a suitable portion of the tank and waters of the tank may be reserved for the use of our club together with permission to erect a platform and other structures and appurtenances necessary or convenient for swimming and water games. 5. That our club may be permitted to put up screens during the swimming hours.
8. Then lastly, there was a request for temporary permission being given to use the tents and other appurtenances by both the clubs and for apportionment of costs for maintaining the same as between them This request is in these terms:
That until the requests mentioned in paras. 3 and 4 are granted and the tent and platform, etc., are erected, we may be permitted to use the existing northern platform tent and other appurtenances on payment of proportionate cost of maintaining the same, and that the opinion of the District Standing Committee might be obtained as to the amount.
9. That letter was signed by Mrs. B. Roy, President, to whom I have already referred, and by Kamala Sengupta and S. Biswas, described as Joint Secretaries of this club. As a result of the receipt of that letter, the Parks Committee on 22nd September 1934 passed the first of a series of resolutions which are the resolutions complained of in the suit. I shall refer to them in detail later on. On the 1st October the District Engineer again demanded the removal of the structures to which he had referred in his previous letter. The National Swimming Association replied on the 10th October and explained the position with regard to all the structures and the necessity for their existence and asking for formal sanction. To that letter there was no answer. A few weeks later, by a letter of 6th December 1934 the National Swimming Association wrote to the District Engineer pointing out in considerable detail why it was undesirable and why they objected to the action of the Parks Committee in having assigned the northern end of the tank to the Women's Athletic Club as being that portion of the tank in which the members of that club should swim. The attitude taken up by the National Swimming Association was that it would be more reasonable if the Parks Committee had decided that the Women's Athletic Club should use the southern end of the tank in order to leave the northern end of the tank free for the use of the members of the National Swimming Association. The view of the National Swimming Association was that the recognition of the Women's Athletic Club in the way it had been recognized would shut out from the enjoyment of swimming amenities in the tank, so far as the northern end was concerned, those women who were not members of the Women Athletic Club but were members of the National Swimming Association. In spite of the letter of 6th December 1934, resolutions were passed by the Parks Committee and on 22nd September 1934 were confirmed by the District Committee though they were not communicated to the members of the National Swimming Association until some months later, namely on 11th March 1935. A few days after the letter dated 16th March 1935, some servants of the Corporation removed the padlock and the chain which were being used to close and fasten the gate leading to the diving apparatus which the National Swimming Association had installed years before at the northern end of the tank. The reason for this, apparently, was that it was considered that the presence of the lock and chain fastened to the gate would form an obstruction so as to make it more difficult for the members of the Women Athletic Club to come to the tank and swim there. Some days after that, that is to say on 26th March, there was a further demand by the District Engineer with regard to the removal of certain structures and two days later, according to the case of the National Swimming Association, there was demolition by the servants of the Corporation of what were described as 'various improvements' at the bathing place of the northern end of the tank where there were in fact two platforms, one situated on the east side at the northern end of the tank, and one on the west side and which had been erected after the diving platform had been put up in a place where originally there was a longitudinal platform across the extreme north end of the tank. On the same day, that is to say, on 28th March, the Corporation removed certain bamboo hurdles and planks which had been placed on the gangway leading from the edge of the tank to the high diving board. These bamboo hurdles had been used for the purpose of screening off a portion of the water at the extreme northern end of the tank. The allegation made by the defendant Corporation was that these bamboo hurdles had been placed on the gangway leading to the diving board solely for the purpose of restricting the coming and going of the members of the Women's Athletic Club. Apparently it was on that basis that the bamboos were removed.
10. The next event of importance is this: that on 30th March 1935 there was another set of resolutions passed by the Standing Committee of District No. 1 which were designed to have the effect of stopping the members of the National Swimming Association from using the tank for the purpose of swimming. The two resolutions passed by the Standing Committee of District No. 1 on 30th March 1935 and another resolution are now complained of in this suit. There was another event to which I have referred earlier, on 29th May 1935, a letter was written by the District Engineer of District No. 1 to the Secretary of the National Swimming Association in which he stated this:
The Secretaries, Women's Athletic Club, have complained that by not allowing them the use of the pavilion, you are obstructing the members of the club from practising swimming in the above tank. You know that this Corporation have allowed the Women's Athletic Club to manage swimming in the tank by the ladies, and have authorized them to use the pavilion on payment of a certain amount to you. As you of your own choice refused to receive the sum sent to you by the Women's Athletic Club you cannot now resist them in their authorized use of the pavilion. As by your conduct you are disobeying the orders of the Corporation, I hereby request you for the last time to instruct your members and employees not to put obstacles in the ways of the ladies, and to allow them to smoothly enjoy the privilege that the Corporation have granted them. I am to add if any further complaint is received in this office that your Association has been acting against the Resolutions of the District No. 1 Standing Committee already communicated to you, I have been instructed and ordered to see that these Resolutions are carried out.
11. So there was a final attempt made on behalf of the Corporation to stop the National Swimming Association entirely from using the tank for the purpose of swimming. To that letter there was a reply by the National Swimming Association to the effect that the Corporation were not acting in this behalf within the powers conferred upon them by the Municipal Act. The interchange of those two letters really brought the whole matter to a head and a few days later, that is to say, on 4th June 1935 the present suit was brought. The resolutions complained of to which I have so far only briefly referred are set out in extenso in para. 27 of the plaint. They are in these terms. Those which were passed by the Parks Committee on 22nd September 1934 and confirmed by the District Committee on 8th December are as follows:
That the Women's Athletic Club be recognized as belonging to the northern group of clubs and that the club be permitted to use the existing northern platform, tent and other appurtenances on payment of a proportionate cost of maintaining the same of Rs. 25 for a full session but Rs. 5 for the remaining portion of the present Session: (vide Resolution of the Parks Sub-Committee dated 2nd August 1924).
12. Vide resolutions of District No. 1 Parka Committee dated 22nd September 1934; that is to say the resolutions to which I referred at the outset. Resolution No. 4 runs as follows:
That the National Swimming Association or any of its Committee be not granted any permission to manage the swimming of ladies in the Cornwallis Square tank.
13. Resolution No. 5 runs as follows:
That the National Swimming Association be informed accordingly and directed to allow the Women's Athletic Club to use the platform, tent and other appurtenances without any further delay.
14. The resolutions passed by the District No. 1 Standing Committee on 30th March 1935 are in these terms:
That in view of the fact that the National Swimming Association have been deliberately acting against the decision of the District Committee with the set purpose of obstructing the Women's Athletic Club from using the tank in Cornwallis Square by all possible means and also in view of the fact that they have not complied with the perfectly legitimate orders of the Corporation Executives to remove the unauthorized construction caused by them in the tank, the permission given to the said National Swimming Association for swimming in the tank be entirely withdrawn and their swimming stopped and that they be informed accordingly at once.
15. The comment I would make on that in passing is that swimming was not stopped immediately. But the position remained the same up to 29th May 1935.
16. Resolution No. 2:
The Chief Executive Officer be requested to have the unauthorized structures and obstructions caused by the National Swimming Association in the tank removed immediately and that the above resolution be strictly enforced.
17. The whole controversy between the National Swimming Association and the Corporation may be summarised in this way: The National Swimming Association had enjoyed the right to swim in the northern end of the tank for a number of years-from 1924 to 1934. The National Swimming Association wished to start Women's Section of the Association in order to afford facilities for swimming to adolescent and adult females, in particular to those who had originally learnt to swim under the auspices of the National Swimming Association. The Corporation through its local committees seemed originally to have been sympathetic and so they made only the one stipulation that the swimming of women in the tank should be managed by a committee of women and that the Corporation should be represented on that committee. For some reason or other, as events turned out, the control over the women's section with the concurrence and connivance of the local committees of the Corporation passed into the hands of a body which was entirely separate from the National Swimming Association entailing the result that no female was allowed to swim in the tank unless she was a member not of the National Swimming Association but of the Women's Athletic Club. What really aroused the ire of the National Swimming Association was that the Women's Athletic Club were, so to speak, authorized to thrust themselves into the premises and to use the structures which the National Swimming Association had regarded rightly or wrongly as their own property. Eventually the parties concerned became so much at loggerheads and the position became so embittered that the Corporation by its District Standing Committee on 30th March 1935 expressed its wrath against the National Swimming Association and sought to penalise that Association by revoking the permission given to them for swimming in the tank and by ordering the removal of the structures constructed by them in the tank by passing the resolution of 30th March 1935. The resolutions complained of, which I have read, are altogether five in number. It so happens that these, passed on 22nd September 1934 and confirmed on 8th December 1934 were numbered 3, 4 and 5 on the agenda of the meeting and those passed on 30th March 1935 by the District No. 1 Standing Committee happened to be numbered resolutions Nos. 1 and 2. It will be convenient to retain that notation. The reliefs which the plaintiff claims in this suit are as follows:
(1) A declaration that the Resolutions of the Parks Sub-Committee (District No. 1) of the Calcutta Corporation, namely Resolutions Nos. 3, 4 and 5 passed at the said Sub-Committee meeting on 22nd September 1934, were and are void and inoperative and are not binding upon the plaintiff Association; (2) a declaration that the Resolution passed by District No. 1 Standing Committee of the Calcutta Corporation on 8th December 1931, purporting to confirm the said resolutions of the said Parks Sub-Committee of 22nd September 1931, were and are void and inoperative and not binding upon the plaintiff Association; (3) a declaration that Resolutions Nos. 1 and 2 passed by District No. 1 Standing Committee of the defendant Corporation on 30th March 1935 were and are void and inoperative and are not binding upon the plaintiff Association; (4) a declaration that the orders of the District Engineer conveyed in his several letters to the plaintiff Association of 8th June 1931, 1st October 1934 and 26th March 1935, respectively were and are ultra vires; (5) a decree for Rs. 6,000 being the aggregate of the two sums in para. 32 hereof mentioned or for such other sum as the Court may allow as damages; (6) an injunction restraining the defendant Corporation, its servants and agents from giving effect to or in any way acting upon the said resolutions of 22nd September 1931 and/or the said resolutions of 30th March 1935 or upon any of them or from passing any other resolutions or orders of like intent and purpose or from otherwise imposing upon the plaintiff Association any unreasonable restrictions or restraints in the matter of the user of its property at Cornwallis Square in the town of Calcutta; (7) an interlocutory (and, if necessary, an ad interim) injunction in the like or in such other terms as to the Court may seem meet.
18. The learned Judge in the Court below having heard a certain amount of evidence dismissed the suit, and against that dismissal the plaintiff has appealed. Mr. Barwell on behalf of the appellant has argued that most of the relevant findings of the learned Judge are in favour of the plaintiff and accordingly the learned Judge ought not to have dismissed the suit but should have given judgment for the plaintiff. I am bound to confess that I find it a little difficult to understand what the views of the learned Judge really were. It is a matter of regret that the judgment given by the learned Judge is somewhat prolix and couched in such language that it is not at all easy to understand upon what he based his conclusions. One cannot help deprecating an attitude of mind which appears to result in the evasion of a definite statement of conclusions either on questions of fact or of law and one which seems to assume that as a matter of course there is bound to be an appeal to higher authority and therefore it is unnecessary for the trial Judge to go out of his way to give a careful and definite decision. I make these observations because I observe at the end of the judgment the learned Judge says:
On the one hand, although I have decided against the plaintiff on a point of law which will require further investigation, I consider, humanly speaking, that the Association has a grievance.
19. It is extremely difficult to gather what precisely the learned Judge meant by those observations except perhaps that he thought that from the view he had taken of the case there was bound to be an appeal to some other judicial authority which would have to undertake the task of giving a final decision in the case. It does emerge however from an examination of the judgment that the learned Judge did think that the action taken by the Corporation through its local committees was not altogether reasonable and certainly was not entirely free from bias or partiality, though it cannot be gathered what materials the learned Judge had before him on which he could come to the conclusion that the committee which passed the resolutions complained of by the plaintiff were not acting with complete bona fides. In this connection I would only refer to the observations which appear at p. 174 of the judgment where the learned Judge says:
The Committee (I am conscious of the generalization) appears unreservedly to have adopted the women's point of view as to the constitutional dispute. It came at once to the conclusion that the Association had been contumacious: that the women had been badly treated, and that its own dignity and status were involved. It, therefore, took sides. The executive arm was used to enforce its views. It became convinced, or convinced itself, that the Women's Athletic Club was 'the Club intended' by the Corporation by Resolution of 5th August 1933, words which were repeated in the Resolution of September 1934. This culminated in the trial of September 1934, which, having regard to the proceedings, gives the impression of a political trial of a bygone century.
20. The only other finding of the learned Judge to which I may refer is that concerning the construction of the bye-law which was referred to in the course of the argument as bye-law 13. It is actually one of a series of bye-laws said to have been made under Section 559(52), Calcutta Municipal Act, 1899(Bengal Act 3 of 1899) for the regulation of the use of squares or gardens vested in the Corporation. These bye-laws were sanctioned by the Local Government in Notification No. 469 dated 25th May 1907 published in the Calcutta Gazette of 29th May 1907. With regard to bye-law 13 the learned Judge says this:
I pass on to the next point argued by the standing counsel, viz. the actual power which the statute has vested in the Corporation with regard to this particular matter, in other words, the construction of bye-law 13. He has referred me in this connection to the sections of the old Act, 499, 460, 461, and to interpretation of documents at p. 469. Now at first sight the bye-law does read as if there was an absolute prohibition against bathing; but so to read it would be to narrow the effect of the main section, and I consider that the proper construction is to make all the matter mentioned dependent upon the authority of the Chairman;
and his comment on bye-law 13 is: 'As I say, none has been framed under the section of the new Act, Section 377'. It is to be observed that the plaintiff in his memorandum of appeal has not challenged the decision of the learned Judge touching the construction which ought to be placed on that bye-law. Our task in deciding this appeal has been simplified, at any rate has been shortened by the attitude adopted by Mr. Bose on behalf of the respondent, the defendant Corporation, and by the admissions which he very frankly made as regards certain, or rather all the resolutions which are the subject matter of the main complaint in the proceedings. Mr. Bose has conceded that all the five resolutions complained of by the plaintiff-appellant, each and every one of them, were passed in such circumstances or rather by a body which was not authorised or empowered to pass any such resolution, or rather three of them were confirmed and two of them were passed by a body, that is to say District No. 1 Standing Committee, which had no authority of its own inherent powers to confirm or pass and which had never been properly authorized in that behalf by the Corporation of Calcutta either to confirm or pass any such resolutions. The powers of the District Standing Committee are regulated by the provisions of Section 71 and Section 72, Calcutta Municipal Act 1923(Bengal Act 3 of 1923). Section 71, Calcutta Municipal Act 1923, in Sub-section (1) provides:
The Corporation may each year appoint Standing Committees and, by specific resolution, delegate any of their functions, powers or duties to such Committees and may also from time to time, by a like resolution, refer to them for inquiry and report, or for opinion, such subjects relating to the functions, powers or duties of the Corporation as the Corporation may think fit.
21. Sub-section (2) deals with the constitution of the Standing Committee. Sub-s. (3) says:
Every Standing Committee shall conform to any instructions that may from time to time be given to them by the Corporation.
22. Sub-section (4) says:
The Corporation may at any time dissolve or, subject to the provisions of Sub-section (2), alter the constitution of any Standing Committee, and may also at any time withdraw from any Standing Committee any of the functions, powers or duties delegated to them under Sub-section (1).
23. The next three sub-sections are not material for our present purpose. Sub-s. 8 says:
All the proceedings of every Standing Committee shall be subject to confirmation or revision by the Corporation: provided that, if in delegating any of their functions, powers or duties to a Standing Committee under Sub-section (1) the Corporation direct that the decision of the Standing Committee shall be final, then so much of the proceedings of the Standing Committee as relate to such functions, powers or duties shall not be subject to confirmation by the Corporation.
24. Sub-section 9 is not material for our present purpose. Section 72(1) says:
The Corporation may from time to time divide Calcutta into such districts consisting of different wards as they may think fit and appoint a Standing Committee for each such District and delegate to such Committee such functions, powers or duties of the Corporation as the Corporation may think fit relating to matters affecting their respective districts, and may also from time to time, by specific resolution, refer to them for inquiry and report or for opinion such matters relating to such districts as the Corporation may think fit.
25. It follows therefore from the provisions of Section 71 read with Section 72 that a District Committee is a Standing Committee, a particular kind of Standing Committee of the Corporation and therefore can only deal with such matters as have been each year, that is to say year by year, delegated to them by the Corporation. They cannot deal with any matter which has not been properly delegated to them under one or other of those sections. The District Committee can only deal with such matters as are delegated to them under the provisions of Section 72. Even then the proceedings of a District Committee are subject to confirmation or revision of the Corporation itself unless, as indicated in the Proviso to Section 71, at the time of the delegation the Corporation has directed that the decision of the District Committee shall be final. Section 74(1) of the Act provides:
Any Standing Committee of the Corporation may appoint one or more sub-committees for any purpose referred to them which, in their opinion, can be more usefully carried out by a Sub-Committee.
26. By Sub-section (4) to that section all proceedings of any sub-committee shall be subject to confirmation by the Standing Committee appointing it. It appears that the Parks Committee whose resolutions were concerned was a sub-committee appointed by a District Committee under the provisions of Section 74. Therefore the proceedings of the Parks Committee were subject to confirmation by the District Committee and the proceedings of the District Committee were subject to confirmation by the Corporation, unless the Corporation had otherwise directed.
27. The admission made by Mr. Bose on behalf of the defendant Corporation comes to this: that there is not only no record of any delegation of the relevant powers bud it appears to be the fact that there never was any delegation by the Corporation to the Standing Committee of District No. 1 of any functions, powers or duties concerning matters of the kind which they purported to deal with in the resolution we are examining. Mr. Bose referred to the document which is headed 'Delegation of Powers by the Corporation', 'Services Standing Committee Decisions of the Standing Committee to be 'final'.' That document shows what has been delegated to the various Standing Committees. At p. 26 there is heading 'District Committee, Decisions of the Committee to be final where marked '. Nowhere in the list of matters delegated to the District Committee is anything which would enable the District Committee to deal with the question of swimming in the tank in Cornwallis Square, and even if there had been any such delegation, it seems reasonably clear that this would probably not have been one of the matters where the decision of the District Committee would be final. Mr. Bose has, therefore, conceded for the purposes of this appeal that the resolutions complained of by the plaintiffs appellants, namely resolutions Nos. 3, 4 and 5 of the 22nd September 1934, confirmed by the District Committee on 8th December 1934, are void and inoperative. Mr. Bose has further conceded that resolutions Nos. 1 and 2 passed by the District No. 1 Standing Committee on 30th March 1935 are also void and inoperative for the reasons I have indicated. If the matter had rested there, it would necessarily have followed that the plaintiff was entitled to some, at any rate, of the reliefs which he has claimed. Mr. Bose has however said that the plaintiff had no locus standi and was not in a position to take advantage of the fact that all the five resolutions are actually invalid and it is really that contention which we have to examine and upon which we have to give our decision.
28. Mr. Bose's contention that the plaintiff could not take advantage of the fact that all the five resolutions were void and inoperative was baaed upon this: that the plaintiff has no right of action because he was not a person who could bring himself within the provisions of Section 42, Specific Relief Act, or the provisions of Section 54 of that Act. Section 42 is in these terms:
42. Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: provided that no Court shall make any such declaration where the plaintiff being able to see further relief than a mere declaration of title, omits to do so.
29. It is to be borne in mind that of the reliefs claimed by the plaintiff, as set out at pp. 11 and 12 of the paper book, no less than four of them are in fact claims for declarations. The learned Standing Counsel contended that the declarations asked for by the plaintiff were not declarations of the kind contemplated by the provisions of Section 42. Mr. Bose argued that the plaintiff was not asking for a declaration that he was entitled to any legal character nor was he asking for a declaration of any right to any property, and that, therefore, the matter does not fall within the provisions of Section 42. I pointed out to Mr. Barwell in the course of the argument that the objection raised by Mr. Bose on the basis of the provisions of Section 42 might be obviated by the plaintiff appellant abandoning his claim for declarations, that is to say the first four of the claims set out in the prayer at p. 11 of the paper book save and except in so far as declarations of the character asked for were preparatory to the grant of the injunctions asked for under heading (6) of the prayer at p. 12 of the paper book. Mr. Barwell saw the force of the suggestion which was made to him and realizing that the adopting of such a course would extricate him from any difficulty that might have arisen by reason of the point put forward by Mr. Bose, assented to the view that it would be sufficient for his purpose if the Court merely grants him an injunction upon the basis that, in the opinion of the Court, the resolutions referred to in the first four heads of the reliefs claimed were void and inoperative as conceded by the learned Standing Counsel, and that, therefore, the plaintiff appellant was entitled to an injunction restraining the defendant from acting on the resolutions. There is no doubt that the Court is in a position to make a declaration as indeed Mr. Bose himself has made a declaration with regard to resolutions Nos. 2, 3, 4 and 5, because those resolutions do touch questions of property and if carried into effect would cause interference with such rights as the plaintiff has with regard to the pavilion, the diving board and other appurtenances situated at the northern end of the tank. As regards those resolutions we can say that they are void and inoperative and should not be acted upon and we grant him the injunction in the terms asked for which are these: 'The defendant Corporation, its servants and agents be restrained from giving effect to or in any way acting upon the resolution of 22nd September 1934 and/or the resolutions of 8th December 1934 '. I may here observe in passing that as regards the second half of the injunction asked for under heading (6), Mr. Barwell conceded that he was not in a position to ask the Court to make any order in the terms which they have been asked for in that part of the plaint. What was asked for was an injunction restraining the defendant Corporation from passing any other resolutions or orders of like intent and purpose or from otherwise imposing upon the plaintiff Association unreasonable restrictions or restraints in the matter of user of its property at Cornwallis Square in the town of Calcutta. It must be quite obvious to any one else who has followed the course of the arguments put forward in this case that it was not within the province of this Court in the circumstances to make any such order.
30. Now as regards the rest of the claim for injunctions that relates to the two resolutions of 30th March, that is to say, resolutions which are numbered 1 and 2, resolution No. 2 can be dealt with on the same footing as resolutions Nos. 3, 4 and 5 and they can be put within the scope of the injunction which we propose to make. But as regards resolution No. 1 a further point arises because the objection put forward by Mr. Bose is founded on the provisions of Section 54, Specific Relief Act. That section so far as is material reads as follows:
54. Subject to the other provisions contained in, or referred to by this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. When such obligation arises from contract, the Court shall be guided by the rule and provisions contained in Chapter 2 of this Act. When the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, the Court may grant a perpetual injunction in the following cases....
31. Then there are set out a number of cases the (b) of which is this: '(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused by the invasion'. Therefore, it was competent for the Court to grant an injunction where there is an invasion or threatened invasion of the plaintiff's right to or enjoyment of property, and if there exists any actual damage caused or likely to be caused by the invasion. By reason of those provisions we are able to grant the injunction with regard to the resolutions Nos. 2, 3, 4 and 5 because, as was conceded by the learned Standing Counsel, there would be an invasion of the plaintiff's right concerning the pavilion, the diving board and other appurtenances if those four resolutions were carried into effect, for the National Swimming Association has at least a right to take up the attitude that 'We will not have the pavilion or the diving board or other appurtenances interfering with our rights such as those relating to the injunction except as a result of a lawfully constituted process or by way of resolutions passed by the Corporation or otherwise.'
32. The whole matter comes to this. With regard to those four resolutions, Section 42, Specific Belief Act, can be left out of account altogether and an injunction can be granted under the provisions of Section 54, Specific Relief Act.
33. I now come back to what was the main matter of contention at the hearing of this appeal, namely the plaintiff's position as regards the first resolution of 30th March 1935, the gist of which was the permission given to the National Swimming Association for swimming in the tank be entirely withdrawn, and their swimming stopped. Mr. Bose argued very strenuously that although he had to concede that the resolution itself was void and inoperative for the reasons I have already stated, nevertheless the passing of the resolution entailed no invasion of any rights which the plaintiff had, so as to enable the Court to say that the resolution ought not to be acted upon. In short Mr. Bose urged that the plaintiff has no locus standi. That raises the whole question whether the National Swimming Association had a right to use the tank in the Cornwallis Square for the purpose of swimming or bathing in the sense of going into the water of the tank for the purpose of recreation. It is obvious that it will not be putting the matter sufficiently wide by merely putting it in this way: 'Had the plaintiff, that is to say, the National Swimming Association, the right to swim in the tank?' Because it is clear that it is a part of the plaintiff's case that there were members of the Association who cannot in fact swim. Some became members of the Association for the purpose of learning to swim. There were a number of members who at the outset of their career in the National Swimming Association went into the water without being able to swim. Therefore it would appear that the plaintiff must base his case upon a right wider than a mere 'right to swim' which was the expression which was used in the course of the argument in the Court below and by the learned Judge in that part of his judgment where he dealt with on the point we have now to consider. To determine the matter we have to consider whether the National Swimming Association had a right to bathe in the tank situated in the Cornwallis Square. Mr. Barwell has argued at great length and cogently that there is a sort of natural and inherent right vested in every citizen of Calcutta to bathe in the sense of going into water for the purpose of recreation or exercise or amusement and that the National Swimming Association was possessed of a right of that character. If that proposition of Mr. Barwell is a sound one, it follows that the plaintiff would be in a position to say 'I come within the purview of Section 54, Specific Relief Act, that I am entitled to object to the resolution of 30th March and so I am entitled to ask the Court to grant me an injunction restraining the defendant Corporation from putting that resolution into operation'. We are disposed to take the view that there is considerable force in the proposition put forward by Mr. Barwell. It is admitted by the defendant Corporation in para. (3) of their written statement that the assertion contained in para. 4 of the plaint that Cornwallis Square is a recognised public park is correct. The admission is in these words:
With reference to para. 4 of the plaint, the defendant Corporation states that the Cornwallis Square is a public square vested in the defendant Corporation.
34. At the outset of his argument the learned Standing Counsel was disposed to argue that when land is vested in the Municipal Corporation by virtue of the provisions of the Municipal Act, the Corporation are, for all intents and purposes and to the fullest possible extent, the owners of that land. But on a further consideration of the matter and after consulting various authorities, the learned Standing Counsel had found that was an untenable position to take up. He admits that the rights of the defendant Corporation touching the land vested in them in some respects and for some purposes fall short of the rights of full ownership. Therefore his reply to Mr. Barwell's contention was, I think, of a somewhat half-hearted character and Mr. Bose was not really very seriously contesting the position that originally as regards land which constituted a public park, the public, that is to say the citizens of Calcutta, had a right to use that park in all reasonable ways, and therefore they had a right to enter into the water which is situated in the public park and to bathe just as they have a right to enter upon the paths or the grass or whatever else it may be which constitutes the dry land of the park. If therefore the position is that the members of the public can go into the water, it naturally and necessarily follows that they can also bathe in the water and can swim in the water. We do not think it necessary to pause to consider whether bathing is the same as [only?] bathing or whether it is only by the stretching of language that it can be said that the use of the word ' bathing ' does include bathing and swimming. All that is necessary for the purposes of this appeal is for us to give our views upon the question of whether the members of the public, and therefore the members of the National Swimming Association, but for intervening events, would have had a right to bathe and swim in the tank in the Cornwallis Square. We are of opinion that they had originally that right. Mr. Bose says that whether they had that right originally or whether they had not, two subsequent events have deprived them of that right and that therefore the members of the National Swimming Association have no longer an absolute indefeasible right to enter into the water of the tank in Cornwallis Square, and that they can only do so upon conditions laid down and in circumstances prescribed by the defendant Corporation. The two events upon which Mr. Boss rests his case are these: In the year 1899 there passed a Municipal Act. It is that Act I have already mentioned, Calcutta Municipal Act (Bengal Act 3 of 1899). It is the precursor of the present Calcutta Municipal Act, which is the Bengal Act 3 of 1923. In Sub-section (1) of Section 461 of the 1899 Act, we find this enactment:
Except as permitted by an order or notice issued under Section 459 or Section 460, no person shall (a) bathe in or near any tank, reservoir, fountain, cistern, duct, stand-post, stream, well or other source of water supply or any place vesting in the Corporation.
35. Therefore, said Mr. Bose and we agree with him, this was an absolute prohibition against bathing in any place vested in the Corporation. I am not sure that in the course of the argument sufficient stress was laid down on that last sentence of that sub-section. The argument centres round the word 'bathing' and the expression 'in any place vesting in the Corporation'. Putting the two together and not attempting to differentiate the word 'bathing' from the word 'bathing' or to distinguish it from the word 'swimming' but taking it that 'bathing' includes entering into water for the purpose of recreation or exercise or ablution, it becomes clear that what is indeed contained in that enactment is an absolute prohibition against bathing in any place vesting in the Corporation. It follows therefore that by Section 461 to which I have just referred the right to bathe in a tank situated in any public park of Calcutta was taken away definitely and completely. That enabled Mr. Bose to say whether there was originally vested in the National Swimming Association any right to swim or a right to bathe, such right disappeared in the year 1899. Mr. Barwell's answer to that is this: that would be all very well if the matter had rested there; but in the year 1923 came the Calcutta Municipal Act of 1923(Bengal Act 3 of 1923). By this Act, the Act of 1899 was repealed, not as is usual by mention in a schedule, but direct enactment in Section 2 of the Act of 1923. Sub-s. (1) to Section 2 says:
The following enactments are hereby repealed, namely (a) the Calcutta Municipal Act, 1899, (b) the Calcutta Municipal (Loans) Act, 1914, and (c) the Calcutta Municipal (Amendment) Act, 1917.
36. Therefore, says Mr. Barwell, the Act of 1899 has gone out of the statutes. It has disappeared altogether and in its place have come the provisions of Section 461. Thus, the position in the year 1923 and onward was the same as regards the right to bathe as it had stood prior to 1899 and the right to swim once more existed. In other words, the repealing of the Act of 1899 caused a revival of the right to bathe and the right to swim. So, from the year 1923 onwards, the National Swimming Association were entitled to bathe and swim in the tank in the Cornwallis Square, and the passing of the resolutions on 30th March 1935 constituted an interference with and invasion of that right and so the plaintiff was at the time of action brought a 'person' coming within the purview of Section 54, Specific Relief Act of 1877.
37. Now what is the position under the law? Mr. Bose's rejoinder to Mr. Barwell's argument was that the matter falls to be dealt with in the light of the provisions of Section 8, Bengal General Clauses Act, 1899. The section reads thus:
Whore this Act or any Bengal Act made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any, enactment so repealed or anything duly done or suffered thereunder.
38. The rest of the provisions are not material for our present purpose. The learned Standing Counsel on behalf of the defendant Corporation argued that the Calcutta Municipal Act of 1899 had divested the members of the public of all the rights which they otherwise would have had to bathe or swim in tanks vested in the Corporation, and although the Calcutta Municipal Act of 1899 was repealed by the Act of 1923, the repealing of the 1899 Act did not cause a revival of the right to bathe and the right to swim, as Mr. Barwell argued, because Section 8, Bengal General Clauses Act of 1899, expressly provides that the repealing of an enactment shall not revive anything which was not in force at the time the repealed Act ceased to exist. In our opinion this is a sound argument, particularly having regard to the provisions of Section 8(b) which, read with the opening words of the section, gives us this doctrine: Where any Bengal Act repeals any enactment previously made, that repeal does not affect the previous operation of the Act so repealed. Applying that to the present case we get this: The Calcutta Municipal Act, 1899 by virtue of the provisions contained in Section 461, operated to take away the 'right to swim.' Section 8 of Ben. General Clauses Act, 1899 has this effect that the repeal of the Caloutta Municipal Act of 1899 does not occasion a revival of a right which had been taken away by that Act. The position therefore at the time of the institution of the suit out of which this appeal arises was that there was no absolute and independent right to bathe upon which the National Swimming Association or the plaintiff could base a case.
39. The other event referred to and relied upon by the learned Standing Counsel on behalf of the respondent was that in the year 1907 the defendant Corporation availed themselves of the powers conferred upon them by Section 559, Calcutta Municipal Act of 1899 and made the series of bye-laws which are stated to have been made under Sub-section 52 of Section 559 for regulating the use of squares and gardens vested in the Corporation. These bye-laws, it will be remembered, were sanctioned by the Local Government by Notification No. 469 T.M., dated 25th May 1907, published in the Calcutta Gazette on 29th May 1907, Part 1-B, pp. 71 and 72. Bye-law No. 13 is the only one which is pertinent to our present discussion. It is of course the bye-law referred to in the judgment of the learned Judge as previously noted earlier in this judgment. The learned Judge described the bye-law as 'not a very satisfactory one'. It reads as follows:
No person shall bathe in any tank, pond or other ornamental water in such square or garden or wash clothes or any articles in, or foul or pollute any such water; nor shall any person fish in any such water without the authority of the Chairman.
40. I have previously pointed out that the learned Judge accepted the view that the words 'without the authority of the Chairman' qualified both bathing and fishing, in other words the bye-law did not contain an absolute but only a qualified prohibition. Mr. Bose contended that it does not very much matter whether the bye. law contained an absolute prohibition or only a qualified prohibition, because at the time when this suit was instituted the National Swimming Association was not in possession of any authority from Chairman or from the person who has succeeded to the functions of the Chairman as regards the giving of an authority of this kind, namely the Chief Executive Officer of the Corporation. So, in no view of the matter can it be said that the National Swimming Association had a right to swim.
41. Mr. Barwell on the other hand says that the bye-law does contain an absolute prohibition, for, upon a proper construction of the phraseology of the bye-law and by reference to the method of drafting employed in the other bye-laws of the series, it becomes obvious that the words 'without the authority of the Chairman' only qualify fishing and not bathing. So, says Mr. Barwell, there is an absolute prohibition for bathing in the bye-law, and that being so, the bye-law is inherently unreasonable and ultra vires the Corporation. As I indicated in the earlier part of this judgment, there is nothing in the memorandum of appeal which challenged the decision of the learned Judge upon this point, and so we are disposed to take the view that it was not open to Mr. Barwell to put in issue before us the question whether or not there was an absolute prohibition and therefore whether or not the bye-law itself was unreasonable. We must, I think, take it that the decision of the learned Judge on this matter was correct and unchallenged.
42. The question then arises as to whether bye-law No. 13 was still in existence and effective at the time when the suit was brought. As I have already stated, this bye-law was originally made under the provisions of Section 559, sub.s. 52, Calcutta Municipal Act, 1899. That Act, as we have seen, was repealed by the Calcutta Municipal Act of 1923. What effect had the repealing of the 1899 Act upon the bye-laws made under that Act? Mr. Bose in this connexion relied upon the provisions of Section 25 of Bengal General Clauses Act, 1899, which is as follows:
Where any enactment is, after the commencement of this Act, repealed and re-enacted by a Bengal Act with or without modification, then, unless it is otherwise expressly provided, any order, scheme, rule, bye-law, notification or form issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been issued under the provisions so re-enacted, unless and until superseded by any order, scheme, rule, bye-law, notification or form issued under the provisions so re-enacted.
43. The learned Standing Counsel said that Section 559, Sub-section 52 was in its terms wide enough and appropriate enough to justify the making of a bye-law such as bye-law No. 13. Section 559, Sub-section 52 is in these words:
The General Committee may make bye-laws for the regulation of theatres and other places of public resort, recreation or amusement.
44. Mr. Bose argued that although the whole of the Calcutta Municipal Act of 1899 was repealed by the Act of 1923 that provision was in effect re-enacted in Section 478(43), Calcutta Municipal Act of 1923. Sub.s. 43 taken in conjunction with the opening words of Section 478 gives us the proposition: The Corporation may make bye-laws generally for carrying out the provisions and intentions of this Act; and in particular, and without prejudice to the generality of the foregoing power, they may make bye-laws regulating the inspection, supervision and control of theatres, circuses and other places of public resort, recreation or amusement and prescribing the terms and conditions subject to which licenses may be granted for keeping open such places.
45. Mr. Bose in support of his argument that S, 559(52) of the Act of 1899 enabled the Corporation to make bye-law No. 13 cited the case Hinde v. Chorlton (1867) 2 C P 104 at p. 160, in order to demonstrate that a public park is a place of public resort. Assuming the initial validity of bye-law No. 13, Mr. Bose proceeded to say that as in effect Section 559(52) was re-enacted in Section 478(43) of the 1923 Act, the matter came under the operation of Section 25 of the Bengal General Clauses Act, 1899, the result being that bye-law No. 13 being originally valid continued to subsist despite the repeal of the 1899 Act and was still in force at the time the suit was instituted, and indeed is still in force at the present moment.
46. Mr. Barwell on the other hand said that the whole of the bye-laws which purported to have been made under Section 559(52) including of course bye-law No. 13 were not validly made and consequently never had any effect in law at all. Mr. Barwell based this contention upon the wording of Section 559(52) arguing that must be read as referring only to theatres and other places of public resort, recreation or amusement of a like character, and that the provisions of this sub-clause were intended to do more than to give powers to the Corporation to make bye-laws with regard to supervision and control of places kept by third persons for the entertainment or amusement of the public and this is made clear from the wording used in the sub-clause of Section 478 of the Act of 1923 which Mr. Bose says is the analogue of the old Section 559(52). Section 478, Clause 43 reads as follows:
Regulating the inspection, supervision and control of theatres, circuses and other places of public resort, recreation or amusement and prescribing the terms and conditions subject to which licenses may be granted for keeping open such places.
47. The last part of that sub-clause obviously indicates that at any rate with regard to Section 478(43) it was the clear intention of the Legislature that it should only be used for the purpose of making bye-laws regulating places of amusement kept by third persons. In my view it is not open to us or to anyone to endeavour to construe the provisions in an Act passed in 1899 by reference to provisions contained in an Act which came into existence in the year 1923, even though the provisions are contained in a corresponding section or sub. section. But Mr. Barwell had another argument directed against the validity of bye-law No. 13 as being passed under Section 559, Clause 52, and this argument is in my view as of considerable weight and indeed is convincing. The argument was that Section 559(52) must be interpreted and construed in the light of ejusdem generis rule, for it makes no difference that there is merely one place specifically mentioned and not a number of places. In other words, the ejusdem generis rule not only applies where there is more than one thing mentioned and then an expression of general import and intent added to the end but also where there is only one. The authority for that proposition is the case in Williams v. Golding (1866) 1 C P 69 at p. 78.
48. I am of opinion that the argument put forward by Mr. Barwell is correct, and I am quite disposed to hold that bye-law No. 13 and the rest of the bye-laws which purported to have been made under Section 559(52) of the Act of 1899 are void and inoperative. In this connexion it is perhaps not out of place to recall the words of Lord Russell of Killowen, Lord Chief Justice of England, in Kruse v. Johnson (1898) 2 Q B 91 at p. 96. His Lordship said:
First it seems necessary to consider what is a bye-law. A bye-law of the class we are here considering (he was considering a bye-law made by the County Council under the authority given to them by section of the Local Government Act 1888) I take to be an ordinance affecting the public, or some portion of the public imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the bye-law, they would be free to do or not to do as they pleased. Further it involves this consequence that, if validly made, it has the force of law within the sphere of its legitimate operation. It follows, therefore, that a bye-law to be valid must be (1) intra vires the authority who makes it; (2) certain in its terms and positive; (3) not repugnant to the general law, and lastly (4) reasonable.
49. As I already mentioned that Mr. Bar. well would have liked to argue that this particular bye-law (No. 13) did not fulfil any of these conditions, and in particular did not fulfil the last condition, in that it was not reasonable. It is sufficient for me to say as I have already said that it is not necessary for the purpose of deciding this case to argue so. I am, however, quite prepared to hold that the bye-law as made in the way it was made was not intra vires any authority and therefore not operative. If it had been a valid bye-law, in my opinion Mr. Bose's contention with regard to its survival after the repeal of the Act of 1899 would have been correct. If the bye-law had started by being a good bye law, it would have remained a good bye-law down to the present day.
50. Having regard to the view which I have expressed with regard to the effect of the provisions of Section 461, Calcutta Municipal Act of 1899, even though that Act was repealed by the Calcutta Municipal Act of 1923, it follows that the plaintiff was not at the time of the institution of the suit in a position to ask the Court to give him an injunction as regards the resolution No. 1 of 30th March 1935, although as I have stated more than once that resolution was not in fact valid and operative in law. It is clear, I think, that however many void and inoperative resolutions the Corporation of Calcutta or any of its Committees may have passed, it is not open to every or any citizen of Calcutta to ventilate the matter in a Court of law. That person alone can come to a Court of law and ask for relief whose own personal rights are affected and no one else.
51. There is one other matter I have to deal with, and it is sufficient for me to do so quite briefly. There is the claim contained in head five of the reliefs sought in the suit as appearing in p. 2 of the printed paper book. That is a claim for damages, and is in these terms: 'a claim for Rs. 6,000 being the aggregate of the two sums in para. 32 hereof mentioned or for such other sum as the Court may allow as damages'. That claim for damages was based on the allegation that the National Swimming Association had suffered virtual ouster from its bathing place and had lost all control over its property there situated. The claim also comprised an allegation that one, at any rate, of the platforms installed by the National Swimming Association in the tank had been destroyed or at any rate damaged by the servants of the Corporation, and that subsequently the planks of which the platform was constructed had been removed from Cornwallis Square and stored away in some place belonging to the defendant Corporation, together with the bamboo hurdles to which I referred earlier as having constituted, so it was alleged, an obstruction on the gangway leading to the diving plat form. These hurdles were also removed by the servants of the defendant Corporation.
52. The claim for damages from the very outset appeared to rest on rather a shadowy foundation and upon a close examination there seems to be no real justification for the somewhat inflated claim amounting to Rs. 6,000. In course of the argument before us, I suggested to Mr. Barwell that if the defendant Corporation are prepared to return, and if they do return the materials and articles which they have removed, that would be sufficient to meet the plaintiff's grievances with regard to them. Mr. Bose on behalf of the defendant Corporation has undertaken to return everything which has been removed. Upon that undertaking Mr. Barwell abandoned the claim for damages.
53. The result of our judgment is this: that the appeal will be allowed in part. There will be an injunction in these terms: that the defendant Corporation and its servants and agents are restrained from giving effect to or in any way acting upon the resolution No. 2 passed on 30th March 1935 and resolutions Nos. 3, 4 and 5 passed on 22nd September 1934, and confirmed on 8th December 1934. The plaintiff appellant will have one-half of the taxed costs up to the judgment in the Court below, and also one-half of the taxed costs of the interlocutory applications in connexion with appeal. Each party will bear their own costs in the appeal itself.
54. I agree and I have very little to add. I was at one time inclined to the view that the word 'bathing' in Section 461, Sub-section (1)(a), Calcutta Municipal Act 1899, should be confined to bathing for purposes of ablution and should not be extended so as to cover the use of tanks as swimming baths. Although as a general rule the word 'bathe' in my opinion covers entering water both for purposes of ablution and for purposes of recreation, yet the language of Sub-section (1)(a) appeared to me to require a narrow construction. But on looking at Section 462(b) I have come to the conclusion that the wider construction must prevail. Under that sub-section:
No persons shall, while suffering from any contagious or loathsome disease, bathe on, in or near any bathing platform, tank, reservoir, fountain, cistern, duct, stand-post, stream or well.
55. It appears to me to be absurd to suppose that the Legislature intended that persons suffering from a contagious or loathsome disease should be prevented from performing their ablutions in public tanks and at the same time should be permitted to enter public tanks for purposes of recreation. I am fully in agreement with what my learned brother has said as to the construction to be put upon Section 8, Bengal General Clauses Act. The language of sub-para, (a) is extremely wide. It provides that a repeal shall not revive anything which was not in force or in existence at the time when the repeal took place. That appears to me to be wide enough to cover the right to bathe in a public tank.
56 With regard to the bye-law I am also of opinion that if it was originally a valid bye-law, it remained in force after the passing of the Calcutta Municipal Act 1923 by reason of the provisions of Section 25, Bengal General Clauses Act. If bye-law No. 13 was effective to give the Chairman a right to make regulations with regard to bathing in public tanks, I consider that power was re-enacted by Section 478, Sub-section 30, Calcutta Municipal Act of 1923, which inter alia gives the Corporation power to make bye-laws for the regulation and control of public bathing and washing places. In my opinion, however, Section 559, sub.s. 52, Calcutta Municipal Act, 1899 did not give the Corporation the power to make the bye-law. I was at one time of opinion that the ejusdem generis rule could not be applied unless the general words were preceded by more than one special word.
57. I am of opinion however that Hinde v. Chorlton (1867) 2 C P 104 shows that the application of the rule is not necessarily limited in this way, and I cannot see any reason why the Legislature should have used the word 'theatres' in the sub-section, if it was not the intention of the Legislature thereby to control the words 'other places of public resort, recreation and amusement'. In my opinion the sub-section gave the power to make bye-laws with regard to places of amusement and entertainment owned or conducted by third parties. It did not give the power to make bye-laws for the regulation of public parks vested in the Corporation or of the tanks and bathing places situated therein. I desire to add nothing further.