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High Court Of Calcutta
Sankar Prasad Mitra, Salil Kumar Datta
SHREE MADHUSUDAN MILLS LTD. - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
Appeal 277 Of 1972
Decided On : 12/04/1975
PUBLIC STREET - OWNERSHIP AND CONTROL - CORPORATION OF CALCUTTA - POWER TO GRANT LICENCES FOR ERECTION OF HOARDINGS - CONDITIONS AND LIMITATIONS - MAINTAINABILITY OF APPLICATION UNDER ARTICLE 226 BY A COMPANY - COLLECTIVE RIGHTS.
Fact of the Case:
The appellant, a company, challenged the Corporation of Calcutta's right to permit the erection of hoardings on the footpath of a public street, claiming that it interfered with the utilization and enjoyment of its property and obstructed the rights of egress or ingress. The Corporation contended that it had the authority to grant such licenses as the owner of the public street, subject to limitations imposed by the Calcutta Municipal Act, 1951.
Finding of the Court:
The court held that the Corporation, as the owner of public streets, had the authority to exercise all the rights of an owner, including granting licenses for the erection of hoardings, so long as it did not interfere with the public's right of user of the footpath or pavement. The court found that the hoardings in question did not obstruct the pedestrians' right of way and were not violative of the statutory rights of the public.
Issues: 1. Whether the Corporation of Calcutta had the right to grant licenses for the erection of hoardings on the footpath of a public street? 2. Whether the hoardings in question obstructed the pedestrians' right of way and were violative of the statutory rights of the public? 3. Whether the appellant company had the locus standi to maintain an application under Article 226 on behalf of its employees or tenants.
Ratio Decidendi: 1. The court interpreted Sections 3, 5(60), 349, 350, 361, 362, 527(17), and 527(18) of the Calcutta Municipal Act, 1951, to hold that the Corporation, as the owner of public streets, had the authority to exercise all the rights of an owner, including granting licenses for the erection of hoardings, so long as it did not interfere with the public's right of user of the footpath or pavement. 2. The court examined photographs of the hoardings and found that they were placed sufficiently high so that no pedestrian could strike their head against them and that the pillars supporting the hoardings did not obstruct the pedestrians' right of way. Therefore, the court held that the hoardings did not obstruct the pedestrians' right of way and were not violative of the statutory rights of the public. 3. The court held that the appellant company, as a corporate body, could not maintain an application under Article 226 on behalf of its employees or tenants, as their rights were independent of the company's collective rights.
Final Decision: The court dismissed the appellant's appeal and held that the Corporation had the right to grant licenses for the erection of hoardings on the footpath of a public street, subject to limitations imposed by the Calcutta Municipal Act, 1951. The court also held that the hoardings in question did not obstruct the pedestrians' right of way and were not violative of the statutory rights of the public. Finally, the court held that the appellant company did not have the locus standi to maintain an application under Article 226 on behalf of its employees or tenants.
( 1 ) THE appellant claims to be the owner of premises No. 31, Chowringhee Road in Calcutta at the crossing of Chowringhee Road and Park Street. A portion of the premises has been let out. The appellant uses the other portion for its own purposes.
( 2 ) IN an application under Article 226 the appellant challenged the erections of hoarding in front of the aforesaid premises on the footpath or path-way of pedestrians. The persons responsible for such erections have obtained licences from the Corporation. They were made parties to the application along with the Corporation of Calcutta, its Commissioner and its Licencing Officer.
( 3 ) THE appellant challenges the Corporation's right to permit the erections of hoardings or to permit advertisements resting on pillars on public streets or foot-paths of the Corporation. The appellant contends that these hoardings are interfering with the utilisation and enjoyment of its property. The rights of egress or ingress from and to the premises have been seriously affected. These hoarding. , according to the appellant, also obstruct the enjoyment of air and light in the premises.
( 4 ) SABYASACHI Mukharji, J. heard the application under Article 226. By his Lordship's judgment delivered on June 7, 1972, he dismissed the application. The learned Judge aid not enter into the controversies relating to easement rights or rights of enjoyment of air and light or of rights of egress or ingress. He left those questions open to be decided in appropriate proceedings at the appropriate forum. the judgment deals with the Corporation's right to grant licences for the setting up of hoardings in the manner aforesaid.
( 5 ) MR. A. K. Basu, termed Counsel for the appellant, contends that the Corporation has no right or power or authority under the Calcutta Municipal Act, 1951, to let out or give by way of licence any part of a pathway, pavement or footpath which is admittedly part of a public street. The public street including the foot-path cannot, according to Mr. Basu. be obstructed in any manner whatsoever except for the purposes of the Act. Learned Counsel has drawn our attention to Section 362 of the Act which deals with the Corporation's power to dispose of a permanently closed street, square or garden. His point is that without a permanent closure of this nature, the Corporation Cannot permit any obstruction not expressly provided for in the Act.
( 6 ) THE learned trial Judge is of the view that the Corporation being the owner of a public street has the authority subject to limitations which the Act has imposed, to exercise all the rights of an owner and if the exercise of any such right does not affect the right of user of a public street by the members of the public, there should be no bar to the granting of licences for erection of hoarding. Learned Counsel for the appellant submits that this view of the learned Judge is not correct and has relied on several decisions of this Court delivered by single Judges. These decisions are reported in: (1936) 40 Cal WN 17, (Maniruddin Bepari v, Chairman of the Municipal Commrs. , Dacca); (Biswanath Sinha v. Sudhir Kumar Banerjee); (1972) 76 Cal WN 613. (Girija Singh v. Corporation of Calcutta) and (1975) 79 Cal WN 883, (Scotts (P.) Ltd. v. Corporation of Calcutta ). There is also an unreported decision of Sabyasachi Mukharji J. in Suit No. 1062 of 1968 (Cal), (Sourendra Narayan Sinha v. Corporation of Calcutta ).
( 7 ) FOR the purpose of disposing of this appeal we intend, however, to discuss the basic principles involved in such matters.
( 8 ) IN the first instance let us consider the sections of the Calcutta Municipal Act, 1951 which appear to be relevant in this appeal. Section 3 provides that all properties, movable and immovable and all interests of whatsoever nature or kind therein, vested in the Corporation of Calcutta as constituted under the Calcutta Municipal Act, 1932 at the commencement of this Act with all rights o
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