(1.)THIS is an application by four persons who contend that they have been carrying on trade and profession by selling ready-made garments on the footpaths of Calcutta as and when permitted by the Corporation of Calcutta. The petitioners state that they along with a large number of persons applied to the Corporation of Calcutta and the Commissioner of the Corporation of calcutta for permission to allow them to carry on trade by hawking in the streets of Calcutta and the petitioners were so allowed to use the pavements for hawking. The petitioners contend that the respondents Nos. 1 and 2, being the Corporation of Calcutta and the Commissioner of Corporation respectively permitted the petitioners and 62 other persons to occupy the footpaths and sell goods after payment of requisite fees to the Corporation as per provisions of the Calcutta Municipal Act, 1951 and the rules framed thereunder. It is further the case of the petitioners that the respondents granted receipts to the petitioners after receiving the fees from the petitioners. The petitioners have annexed a copy of such receipt. The petitioners further contended that 66 persons were allowed and permitted to carry on trade on the footpaths as hawkers during the national festival of 'sravanautsab' up to the period from 31st August, 1968 to 2nd September, 1968. The petitioners state that they had deposited different scales of fees for the licence for permission for carrying on trade and it is further the case of the petitioners that the respondents Nos. 1 and 2 granted trade licence to the petitioners. After the grant of the said licence the petitioners had started, according to the petitioners, to carry on trade on the footpath which was temporarily closed by what is called by the petitioners a public notice In paragraph 7 of the petition the petitioners have set out an extract from the public notice alleged to have been published in the Amrita Bazar Patrika in the late morning edition of 6th August, 1968, to the following effect: "corporation of Calcutta temporary closure of roads, lanes etc. , location, Premises Nos. 1 to 7, chowringhee Road; purpose -sale of goods. Dates from 1. 8. 68 to 31. 8. 68 sailajananda Bhattacharjee 5. 8. 68 secretary to the Corporation. The area comprised in the said notice is the front portion of premises Nos. 1 to 7 Chowringhee Road, Calcutta. The petitioners further state that since the petitioners and others started that profession on the said premises as permitted by the Corporation, the Commissioner and their subordinates, the respondents Nos. 3 and 4 being the Commissioner of Police and the Deputy Commissioner of Police Central Division and Central Suburban Division, Lallbazar and their subordinates started oppression against the petitioners by arresting the petitioners on the plea of obstruction of the road under the Calcutta Police Act, 1866 and started criminal proceedings against the petitioners before the Police Court. The petitioners contend that such proceedings were without jurisdiction and illegal. According to the petitioners it is the duty of the police to assist the Corporation to carry out its statutory duty. Further it is the case of the petitioners that under section 361 of the Calcutta Municipal Act, 1951 the Corporation had power to close public Streets and, as such, there had been a closure of such public street and after closure the corporation was solely entitled to permit the petitioners to carry on trade and profession as hawkers on the footpaths and the police was not authorised to, obstruct the petitioners in that carrying on of the profession. In the premises, the petitioners contend that the respondent's Nos. 3 and 4, being the Commissioner of Police and the Deputy Commissioner of Police are acting in violation of the principles of law and illegally interfering with the petitioners' right. In the premises, the petitioners asked in this application under Article 226 of the Constitution for a Writ of Mandamus directing the Commissioner of Police and Deputy Commissioner of Police and their subordinates not to proceed with illegal and wrongful act of obstructing and arresting and prosecuting the petitioners and depriving the petitioners and others from enjoying the incidental right to carry on trade and profession allowed by the Corporation of Calcutta and also for a Writ of Prohibition and other directions to the said effect. It has to be mentioned that on the ground the petitioners as well as the Corporation were acting illegally, the police had initiated proceedings under the Code of Criminal Procedure which had subsequently been quashed to which I shall refer later.
(2.)THE question involved in this application therefore, is has the police: any right and authority to interfere with the petitioners' carrying on the business of hawkers in the stalls set up in the footpaths of Calcutta ? In order to decide this contention it is necessary to determine whether in fact the Corporation of Calcutta has permitted the: petitioners to carry on the trade of hawkers on the footpath in front of the premises Nos. 1 to 7 Chowringhee Road, Calcutta; secondly it is necessary to determine whether, if it has so permitted, whether such permission by the Corporation was valid and proper. The Corporation's right has to be determined by reference to the provisions of the Calcutta Municipal Act, 1951. Under section 5 (60) of the said Act public street' has been defined as follows :
"5 (60 ). 'public Street' means any street, road, lane, gully, alley, passage, pathway, square or court, whether a thoroughfare or not, over which the public have a right of way, and includes- (a) the roadway over any public bridge or causeway, (b) the footway attached to any such street, public bridge or causeway, and (c) the drains attached to any such street, public bridge or causeway, and where there is no drain attached to any such street, shall, unless the contrary is shown, be deemed to include also all land up to the outer wall of the premises abutting on the street, or where a street alignment has been fixed, and the area within such alignment has been acquired by the Corporation, and the alignment has been demarcated or is capable of being demarcated, then up to such alignment".
Therefore, the pathway attached to Chowringhee Road was part of the public street. The Corporation has a right to close such public street. The statutory provisions relating to this can be found in Chapter XXI of the Calcutta Municipal Act, 1951 dealing with the streets and public places. Section 349 of the Calcutta Municipal Act, 1951 provides that all public streets and squares not being the property of and kept under the control of the Government, the Commissioners for the Port of Calcutta or the Board of Trustees for the improvement of Calcutta including soil, sub-soil and the side-drains, footways, pavements, stones and other materials of such street and squares and all erection materials, implements and other things provided for such streets and squares, which are situated in Calcutta, shall vest in and belong to the Corporation. Sub-section (2) of section 349 authorises the Corporation of Calcutta to determine the name by which the public streets and squares are to be known. Section 560 provides for maintenance and repair of public streets by the Corporation. Section 351 provides for watering etc. of public streets, squares and gardens. Section 352 deals with the rules for maintaining, repairing etc. public streets and public squares. Section 353 deals with the power of the Corporation to remove or alter verandah, etc. , or fixtures attached to building which project etc. , over public street or land arc. Section 354 deals with the power of the Corporation to cause wall to he removed or to remove other obstructions in public street. Section 355 deals with the execution of works in streets. It provides where the work is being executed by the Corporation in any public street, it shall, so far as might reasonably be practicable, make adequate provision for the passage or diversion of traffic for proper access to all premises approached from such street and for drainage, water supply, or means of lighting which are likely to be interrupted by reason of the execution of such work. The Corporation is also liable to pay compensation to any person, who sustains special damage by reason of execution of any such work. Section 356 deals with the power of the Corporation to prescribe building lute and street alignment. Section 357 deals with the power of the Corporation for cancellation of building line or street alignment. Section 358 deals with the restriction on erection of, or addition to, any building or boundary wall within, street alignment and building line. Section 359 deals with power of Corporation to take possession of, and add to street, land situated within prescribed street alignment or covered by projecting buildings, Section 360 gives Corporation power to set buildings forward to improve line of public street. Section 361 which is headed by the expressions "opening, improvement and closing of public streets, squares and gardens" provides as follows :
"361. The Corporation may- (a) lay out and make new streets, squares and gardens ; (b) Construct new bridges, causeways, culverts and sub-ways ; (c) turn, divert, or temporarily or permanently close any public street or part thereof, or permanently close any public square or garden and (d) widen, open, enlarge, or otherwise improve any public street, square or garden ; provided that no public square or garden or part thereof shall be permanently closed except in accordance with a resolution carried at a meeting of the Corporation by a majority of not less than two-thirds of the total number of Councilors and Provided further that, except with, the sanction of the State Government, no public square or garden or part thereof shall be diverted from its ordinary use as such for more than a month in any year. "
Section 361a also authorises the Commissioner to make temporary construction and temporary closure of, any part of a public street on such occasions and on such conditions and for such period as the Corporation might prescribe by law made on this behalf. Section 362 deals with the power of the Corporation to dispose of a permanently closed street, square or garden. Section 362 provides as follows:
"362. (1) When any public street, or part thereof, or any public square or garden its permanently closed under section 361, the Corporation may sell Of lease the site of so much of the roadway and footpath as is no longer required, or the site of the square or garden, as the case may be, making due compensation to, or providing means of access for, any person who may suffer damage by such closing. (2) In determining such compensation under section 571, the Court shall make allowance for any benefit accruing to the same premises or any adjacent premises belonging to the same owner from the construction or improvement of any other public street, square or garden at or about the same time that the public street, square or garden on account of which the compensation is paid, is closed. "
Section 363 deals with the projected public streets. Section 364 deals with certain other provisions of Municipal Act applicable to public streets. Section 365 deals with the tools on roads. Section 866 and subsequent Sections deal with the acquisition of land and buildings. Sections 370 to 375 deal with the private street. In this context it is also necessary to refer to Sections 218 and 219 of the Calcutta Municipal Act dealing with tax on professions, trades and callings. Section 218 provides that every person who exercises or carries on in Calcutta, either by himself or by an agent or representative, any of the professions, trades or callings indicated in Schedule IV, shall annually take out a licence before the 1st of July each year or within one month of his taking up the profession trade or calling, as the case may be and pay for the same such fee as is mentioned in that behalf in the said schedule. There are provisos to sections providing for certain remission or refund. Section 219 provides that every license mentioned in section 218, shall, in addition to the particulars required by section 548, sub-section (1) specify the profession, trade or calling in respect of which it is granted, and, if the license is a local License as defined in rule 2 of Schedule IV, also the place of business where the said profession, trade or calling is exercised or carried on. Section 220 provides for the liability of person to take out a license, and the class under which he should be deemed bound to take out a license, should be determined in accordance with the rules contained in Schedule IV. Chapter XXXII deals with the acquisition, disposal and general improvement of land and buildings and Section 525 of the said Chapter provides that on payment by the Corporation of the compensation awarded under the Land Acquisition Act, 1894, in respect of any (land or building) and of any other charges incurred in acquiring the said (land or building), the same shall vest in the Corporation. Section 521 deals with the additional powers for acquisition, disposal etc.
(3.)THE case of the petitioners shortly is this that the public streets belonged absolutely to the Corporation of Calcutta. Corporation of Calcutta is the proprietor thereof. The Corporation of Calcutta has the right to close the public streets temporarily or permanently. The Corporation of Calcutta, in this case, according to the petitioners closed a part of a public street and granted permission to the petitioners by issuing the licences to the petitioners. The petitioners had paid the licence fees and the occupation charges to the Corporation of Calcutta. According to the petitioners the Corporation of Calcutta therefore, permitted the petitioners to use a portion of their property which vested absolutely in them. The police had no right, therefore, to interfere with the rights of the petitioners. The Police are interfering with the rights of the petitioners. Therefore, the police authorities, according to the petitioners, are acting illegally. In this connection reference may be made to the provisions of the Calcutta Police Act, 1866 which deals with the powers of the police and Section 66 deals with the penalty for committing in public streets the various offences and clause 4 (a) of the said section makes this hawking in the manner as done by the petitioners an offence entitling the police to take action. According to the petitioners the police were not entitled to take action against the petitioners. It is, therefore, necessary to determine whether the portion of the Chowringhee Road in which the petitioners had been allegedly permitted to hawk is part of the public street. Undoubtedly, being the footpath attached to the path it is a part of the public street and as such it was a part of the public street which is vested in the Corporation of Calcutta. It is stated that there was a closure of the said public street as mentioned hereinbefore but no formal notification of the closure of the public street. Only reference to the closure was an advertisement published in a newspaper where it was stated that there was a temporary closure of the part of the road from 1st of August, 1968 to 31st August, 1968. No reliable evidence has been produced before me that there was in fact any closure by the Corporation of Calcutta as required by law of this portion of street of Calcutta, it is not clear from he said publication whether the entire road including; the footpath of premises 1 to 7, Chowringhee Road was closed or not. No resolution of the Corporation has been produced to indicate that there has been any closure. Under section 361a of the Calcutta Municipal Act, the Commissioner has been authorised to make a temporary closure only for the purpose of construction. In this case there has been no closure by the Commissioner. No copy of the original notification issued by the Corporation was produced before me in this matter. I asked the Corporation of Calcutta to produce the records, if any, regarding the closure. No such records were produced. Counsel for the petitioners wanted time to produce the document and to substantiate the same from the records. I, accordingly, gave him time. Counsel for the petitioners has also not been able to produce any such record. Therefore, there is no evidence before me of any closure either temporarily or at all of any portion of the street in Chowringhee Road in front of premises Nos. 1 to 7, Chowringhee Road. If there is no valid closure of any portion of premises Nos. 1 to 7 Chowringhee Road then in that view of the matter the police were authorised to take action against the petitioner for removing the violation of the provision of the law. The petitioners along with the Chairman, Standing Building Committee were prosecuted before the Police Court, Evan order in Criminal revision application is the case of (1) Ganapati Sur and anr. v. State and anr. 74 C. W. N. 660, N. C. Talukdar, J. has set aside the said criminal prosecution. The learned Judge came to the conclusion that all public streets etc. as referred to in Section 349 of the Calcutta Municipal Act, vested in and belonged to the Corporation. Section 361 (c) of the said act next provided that the Corporation might turn, divert or temporarily or permanently close any public street or part thereof, or permanently close any public square or garden. The learned Judge held it was therefore abundantly clear that the statute provided that all public streets and squares vested in and belonged to the Corporation and accordingly under the doctrine of incidental powers of the Corporation, powers flowing from the normal incidents of ownership should be given to the said body unless and until the statute laid down any restriction encroaching upon the same. One such restriction was provided in Section 351 of the Act according to the learned Judge. The learned Judge was also of the opinion that the statute therefore had cast a duty upon the Corporation of Calcutta for the purpose of public convenience for suitably maintaining the public streets and enjoined upon it to take necessary steps in furtherance thereof. The statute further conferred an express right to the Corporation as would be evident from the provisions of Section 361 (c) of the Calcutta Municipal Act, 1951 referred to above, even to "temporarily or permanently close, any public street or any part thereof". This concept arose out of common law doctrine of the high way with the right of way at any time as a thoroughfare. The use of the word 'offence' in section 66 of the Calcutta Police Act, 1866 was quite significant and some meaning and effect should be given to it. The facts constituting the said proceeding disclosed, according to the learned Judge, no such 'offence' because the hawkers in question were armed with the requisite licences granted by the Corporation of Calcutta which it was entitled to grant the same under the statute, and accordingly the carrying on of their trade by the hawkers, concerned would not itself be an offence, unless and until the grant of the said licence was in, conflict with any express restriction laid down by the statute, encroaching upon the aforesaid right, of the Corporation. The learned Judge held that the said complaint therefore disclosed no offence within the meaning of Section 66 of the Calcutta Police Act, 1866 and the said criminal proceedings were not maintainable in law. The proper remedy according to the learned Judge for the purported obstruction was a writ in the nature of mandamus commanding the persons, charged with certain statutory duties to perform the same if and when such obstructions were found to be established. Therefore the learned Judge held that no criminal proceedings could lie inasmuch the possession of the petitioners was armed with the licence by the Corporation of Calcutta. It is not necessary for me in this case to decide whether a criminal prosecution would lie against the petitioners or not. So far as the present petitioners are concerned, the prosecution against them at least some of them- had been quashed and the matter rests there. The period for which there was an alleged temporary closure has also expired and no evidence has been produced before me to indicate that there has been further closure. Therefore, this application in effect has become in fructuous because at the moment there is no closure by the Corporation of Calcutta. So, if the respondents take steps against the petitioners for removing obstructions caused to public streets, the respondents would not be acting illegally because there is no further closure.