Vidya Debi Pandey v. State of W. P — 1981 DIGILAW 173 (CAL)

JUDGMENT 1. IN this writ petition, the petitioner asked for writs and/or directions commanding the respondents to remove the block-age of passage over the Diamond Harbour Road and to remove the obstructions to egress from and ingress into premises No. 23a/29n/2 Diamond harbour Road, Calcutta - 53 and also commanding the respondent Nos. 4 to 14 not to commit the said nuisance and/or obstruction. 2. THE petitioner is the owner of premises No. 23a/29n/2,diamond Harbour road, Calcutta and the petitioner has also been residing in the said premises. The case of the petitioner is that the land comprising the said premises is about 3 cottahs 8 chittaks and on the said land there is a big tiled and asbestos roof shed in the front portion lacing the Diamond Harbour Road and the remaining structure is situated at the back portion of the said tiled shed. The petitioner granted licence to the younger brother of the petitioner's husband to run a hotel in the said front tiled shed room and the said brother used to run the hotel. After the death of the said brother, the petitioner allowed his widow to continue fine said hotel in the aforesaid room as a licensee of the petitioner. The said widow thereafter closed down the said business and handed over the possession of the said room to the petitioner and at the present moment the petitioner is in possession ctf the said front tiled room and also the back portion of the premises. The petition contends that after the closure of the said hotel the employees of the said hotel illegally and wrongfully raised bamboo structures with tarpaulin an the Diamond Harbour Road just in front of tha said front room of the petitioner. The said employees by making such structures on the Diamond Harbour road in front of the said tiled shed room of the petitioner have completely blocked the said front portion and they have been also obstructing egress from and ingress into the said front room of the petitioner. The petitioner contends that at the present moment the petitioner and the members of the family cannot enter the front room and or the other portion of the premises through the main road, but in order to go inside the premises the petitioner and the members of the family are using a small side entrance. The petitioner contends that at the present moment the petitioner and the members of the family cannot enter the front room and or the other portion of the premises through the main road, but in order to go inside the premises the petitioner and the members of the family are using a small side entrance. The petitioner further contends that the petitioner made a number of diaries in the New alipore Police Station on 11th Ocotber, 1980, 12th October, 1980 and the petitioner also made an application under section 144 (2) of the Code of Criminal Procedure before the learned executive Magistrate, Alipore being m. P. Case No. 1846 of 1980 and the learned Magistrate was also pleased to direct the Officer-in-charge, New Alipore Police station, to enquire and report and to see that no breach of peace would take place and the persons named in the petition under section 144 of the Code of Criminal Procedure would not indulge in any illegal activities. The petitioner contends that the said order of the learned Magistrate also was served on the Officer-in-charge of New alipore Police Station, but no effective step or action has been taken and the said blockage and nuisance are continuing as before. The petitioner also contends that the petitioner "wrote letters to the Commissioner of the Corporation of Calcutta on llth November, 1980 and 19th December, 1980 inviting his attention to the aforesaid commission of nuisance and blockage of the road, but the said respondent has also not taken any step to remove the obstruction. Having failed in all the attempts to get the said obstruction and nuisance rembved, the petitioner has moved the instant writ petition praying for appropriate writ or directions commanding the respondents to remove the said obstacles and nuisance and restraining the said respondents nos. 4 to 14 who were the employees of the said licensee of the petitioner from indulging into the aforesaid illegal activities. An affidavit-in-oppositioh on behalf of respondent no. 4 to 14 who were the employees of the said licensee of the petitioner from indulging into the aforesaid illegal activities. An affidavit-in-oppositioh on behalf of respondent no. 1, namely, the commission of the Corporation of Calcutta, has been filed'and it has been stated in the said affidavit-in-opposition that the employees of the said hotel known as Pandey Hotel have raised bamboo structures with tarpaulin shed in front of premises No. 23a/29n/2, diamond Harbour Road and they are selling food and drink to customers obstructing the footpath of Diamond harbour Road without any prior permission of the Corporation of Calcutta. It has also been stated in the said affidavit-in-opposition that afer receiving the letter of the petitioner dated 19th December, 1980, District Engineer IV was asked to look into the contents of the letter of the petitioner and issue necessary order. It appears that thereafter the Assistant Engineer directed the Engineering Overseer to make a report. The engineering Overseer gave a report on 12th January, 1981 that a shop had been constructed in front of the said premises causing inconvenience to the local people and the District Conservancy officer IV should be requested to take action against the said unauthorised shop. It appears that thereafter the district Conservancy Officer was asked to inspect the site and to make a report and the said Conservancy Officer made an inspection of the site and gave a report to the effect that encroachment in front of premises No. 23a/29n/2 Dimond Harbour road had taken place,but the Conservancy Officer 83 had jurisdiction over the said area. The District Conservancy Officer thereafter directed the Conservancy Officer 83 to report immediately and the said Conservancy Officer thereafter made a report to the following effect that on personal inspection by the Conservancy officer, it was found that the striking employees of the Pandey Hotel had been selling their commodities obstructing the footpath causing great inconvenience to the pedestrians as well as the Conservancy work of the Corporation of Calcutta. He also gave a note to the effect that the Officer-in-charge, new Alipore Police Station, should, be requested to take necessary steps to remove the said encroachment for the interest of the local people and also for smooth running of the daily Conservancy work of the Corporation. He also gave a note to the effect that the Officer-in-charge, new Alipore Police Station, should, be requested to take necessary steps to remove the said encroachment for the interest of the local people and also for smooth running of the daily Conservancy work of the Corporation. It appears that thereafter the letter was sent from the Calcutta Corporation to the officer-in-charge, New Alipore Police station for prevention of the said unauthorised encroachment of the footpath. 3. AN affidavit-in-opposition has also been filed on behalf of respondent Nos. 4 to 14, the employees of the said Pandey hotel. It is contended in the said affidavit-in-opposition that the defacto owner of the said hotel was the husband of the petitioner and he locked out the hotel without any valid notice. The employees thereafter started a sit-on-demonstration in front of the locked out hotel gate but there was no obstruction for egress and ingress into the petitioner's premises. It is contended that there is no provision of egress from and ingress into the residence of the petitioner from the said hotel and it is contended by the said respondents that they have every right to sit over the footpath and demonstrate against the illegal lock out. 4. AN affidavit-in-opposition has also been filed on behalf of the respondent no. 2, namely, the Officer-in-charge of New Alipore police Station. It appears from the said affidavit-in-opposition that. he employees of the said hotel formed a Union in or about first week of October, 1980 and the said Union was affiliated to the West Bengal shops and Establishment Employees' association. It is also stated that some of the employees used to stay in the hotel but in the night of 11/12th October 1980 when the workers of the said hotel went to stay inside the hotel they were restrained by some of the persons and some of the workers were also assaulted and a diary was lodged by the said workers. A lock out was also declared in respect of the said pandey Hotel and the workers of the said hotel thereafrer began to sell tea and food intront of the said hotel constructing a temporary shed. It is also stated that the petitioner and the familly members have got egress and ingress in the residential portion of the premises and the passage which leads to the house of the petitioner is not blocked. It is also stated that the petitioner and the familly members have got egress and ingress in the residential portion of the premises and the passage which leads to the house of the petitioner is not blocked. It is, also contended in the said affidavit-in-opposition that in response to the letter of the Corporation of Calcutta seeking police hep, the Corporationandf Calcutta has been informed by the police that on Corporation's fixing a date seeking assistance from the police to remove unauthorised encroachment, necessary police assistance will be rendered to the Corporation, From the aforesaid facts, it therefore appears that the footpath in front of thei said premises has been encroached and a temporary structure has been constructed by the employees of the said Pandey Hotel and the said employees are carrying on business of selling food and tea from the said temporary structure in front of the said hotel room. Although the petitioner contends that the egress and ingress to the premiises of the petitioner has also been blocked by such construction on the footpath, the said contention is disputed by the respondents and it appears that the respondents are contending that there is an opening by the side of the hotel room through which the petitioner and members of the family can enter into the residential portion of the said premises and that portion has not been blocked. From the affidavit of Corporation of Calcutta it also appears that by the said construction of temporary shed on the footpath in front of the said hotel room, great inconvenience has been caused to the pedestrians of Itie locality and the conservancy work of the corporation of Calcutta is also suffering. 5. AT the hearing of this writ petition, mr. Dutta, the learned Junior Standing counsel, Government of West Bengal, appearing for the respondents Nos. 2 and 3 has taken a preliminary objection as to. the maintainability of the writ petition at the instance of the petitioner. Mr. Dutta contends that in order to entitle a privaiteindividual to sue in tort in respect of a public nuisance, the private individual must show that he has also suffered some special damage or some special inconvenience. Such special damage must be different in kind and not merely in degree from this damage suffered by public at large. Mr. Dutta contends that in order to entitle a privaiteindividual to sue in tort in respect of a public nuisance, the private individual must show that he has also suffered some special damage or some special inconvenience. Such special damage must be different in kind and not merely in degree from this damage suffered by public at large. Or, in other words, the said private individual must show that he has suffered some special damage not common to public at large ito his person, trade or calling or that the public nuisance has also occasioned as an interference to some private right or property of his. In this connection, Mr. Dutta refers to the discussion. s madte at pages 835, 836 and 839 of the treatise "law of Torts"by Anand and Shastri (4th edition ). Mr. Dutta also contends that if,a person obstructs a highway thereby compelling members of the public to make a detour no member of the public can sue in tort merely for the delay caused to him, but if an excavation of the public road is made and someone falls into it, the person suffering the injury may bring an action in tort on account of private nuisance caused to him. In this connection, Mr. Outta refers to a decision made in the case of Metcalf vs. STR and Bridge Ltd., reported in 1937 (2)All England Reporter, page 396. He also refers to section 91 of the Code of Civil procedure and contends that an action on account of public nuisance can also be brought in accordance with the provision of section 91 of the Code of Civil Procedure. Mr. Dutta also refers to Section 354 of the calcutta Municipal Act and contends that the Corporation has a power to remove encroachment or structure caused on the public streets, but such power is a discretionary power of the Corporation and the corporation of Calcutta cannot be compelled by the petitioner to take such action under Section 354. Mr. Dutta also contends that in the facts and circumstances of the case, it is quite clear and evident that the petitioner has got an access to the residential portion of the premises through a gate and by blocking the footpath in front of the said hotel room the egress from and ingress into the residential portion of the premises of the petitioner have not been affected. Mr. Mr. Dutta also submits that against the illegal lock out of the said hotel, the employees have been asserting their rights against the employer and the public at large have not made any complaint for the alleged obstruction caused on the footpath. He submits that if an action against public nuisance for causing obstruction of the footpath is to be brought, such action must be mede in accordance with the provisions of section 91 of the Code of Civil Procedure. But the instant writ petition by the petitioner for removing public nuisance is not maintainable in law. Mr. Bhattacharya, the learned Counsel appearing for the respondents Nos, 4 to 14 also supports Mr. Dutta in the aforesaid contentions. 6. MR. Roy Chowdhury, the learned counsel appearing for the petitioner, in reply to the said preliminary objection of the respondents, contends that it has been specifically stated in the writ petition that the front portion of the premises has teen blocked because of the construction of temporary shed on the footpath and in the affidavits-in-opposition filed by the Corporation of calcutta and also by the Officerin-charge of New Alipore Police Station, the fact of such obstruction and raising of temporary structure has been admitted. He, therefore contends that apart from public nuisance it has also caused a private nuisance to the petitioner because the petitioner is suffering obstruction of the said front room of the petitioner. Mr. Roy chowdhury further contends that the writ petition is maintained at the instance of the petitioner who is suffering not only the special damage on account of the obstruction of the front room of the petitioner but also on account of obstruction of the footpath through which the petitioner is got to pass for coming in and going out from her premises. He contends that the Corporation of calcutta and the police authorities have a statutory duty to maintain free egress and ingress of the people at large and also of the petitioner and members of the family over the footpath of the main road, namely. Diamond Harbour Road, and if the Corporation and the police authotities fail to perform such statutory duties and functions, the petitioner has a right to move the writ petiition before this Court for relief and redress. Diamond Harbour Road, and if the Corporation and the police authotities fail to perform such statutory duties and functions, the petitioner has a right to move the writ petiition before this Court for relief and redress. In this connection, Mr Roy chowdhjiry refers to a decision of the Supreme court made in the case of Fertilizer Corporation, kamagar Union Sindri vs. Union of india, reported in AIR 1981 SC page 344. It has been held by the Supreme Court in thei said decision that the question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that rig hi is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under article 226 or under Article 32 of the Constitution, when a citizen belongs to an organisation which has special interest in the subject matter, if he has some concern deaper than that of a busy body a writ petition of such a citizen would be permissible under Article 226 of the Constitution. In this context, Mr. Roy Chowdhury also refers to another decision of the Supreme Court made in the case of Satyanarayan Sinha vs. M/s. Lal and Co. Pvt. Ltd. reported in AIR 1973 sc page 2720. Mr. Roy Chowdhury further contends that sections 353 and 354 of the Calcutta Municipal Act do not mean that the municipal authorities can overlook obstruction and/or encroachment on public road and/or footpath and may choose to take no action. He contends that it is the stalutory duty of the authorities of the corporation of Calcutta to remove such obstruction and/or hindrance on the footpath or the public road In this connection, mr. Roy Chowdhury refers to a decision of this Court made in the case of Sudhir kumar Banerjee vs. Commissioner, corporation of Calcutta, reported in 65 CWN page 138. Sinha, J (as His. Roy Chowdhury refers to a decision of this Court made in the case of Sudhir kumar Banerjee vs. Commissioner, corporation of Calcutta, reported in 65 CWN page 138. Sinha, J (as His. Lordship then was)held in the said decision that the use of the word 'may' in sections 353 and 354 of the calcutta Municipal Act did not mean that the Municipal authorities could sit back: and choose to take no action when there was an unwarranted encroachment upon any public street including the footways and pathway obstructing the user thereof by the members of the public, thereby defeating very purpose for which such public streets were provided by the Municipal Act. The powers to prevent obstructions to such user were the powers which had been granted entirely for the benefit of the members of the public, and when such rights were. threatened by obstructions and the beneficiaries had called upon the Corporation to exercise all such powers, then the power was no longer a discretion, but a statutory duty and, therefore, such power must be exercised. It was also observed in the said decision that the Commissioner of Police had no right to permit an offence to be committed whether temporary or otherwise. It was the duty of the Commissioner of Police and his subordinates to assist the Corporation to carry out their statutory duties in removing obstructions. If the said authorities would fail to perform their duties, the High Court had a right to pom'mand them by a wirit in the nature of Mandamus. Mr. Roy Chowdhury also refers to another decision of this court made in the case of Biswanath Stinha vs. Sudhir Kumar Banerfee, reported in 65 cwn page 339. It was held in the said decision that it was immaterial whether a part or whole of the footpath had been covered. No part of the footpath or public street could be obstructed and any such obstruction was wholly illegel and it was the duty of the Corporation to remove such obstruction. Mr. Roy Chowdhury rerfers to another decision of this Court made in the case of Ganapati Sur vs. State, reported in 74 CWN page 660. No part of the footpath or public street could be obstructed and any such obstruction was wholly illegel and it was the duty of the Corporation to remove such obstruction. Mr. Roy Chowdhury rerfers to another decision of this Court made in the case of Ganapati Sur vs. State, reported in 74 CWN page 660. It was held by the division Bench in the said decision that the proper remedy for removing obstruction the public path was by way of moving a writ petition before this Court for commanding the concerned persons to perform statutory duties if and when the obstructions were found to have been established. The said observation was made by the Division Bench in dismissing a Criminal Revision application on the ground that for the obstruction, alleged in the said application no offence within the meaning of section 55 of the Calcutta Police Act having been committed, the criminal proceeding brought by the petitioner was not maintainable. Mr. Roy Chowdhury also refers to another decision of this court made in the case of Scotts (P)Ltd. Vs. Corporation of Calcutta, reported in 79 C. W. N., page 883. A. N. Sen, J. (as His Lordship then was) held in the said decision that the Corporation of Calcutta-had, no authority to allow selling of goods on the footpath even for a temporary period, thereby causing hindrance to the free thoroughfare of the public on the public road. In the said decision, this Court entertained the writ petition and issued appropriate writs directing the authorities of the corporation of Calcutta to remove the obstruction without any delay. Mr. Roy chowdhury therefore submits that in the instant case the petitioner has not only a special grievance for the personal damage, suffered by her on account of blocking the front room of the petitioner by erecting a temporary shed on the footpath in front of the said room, but the petitioner is aggrieved for blockage of a public road in front of her house and as such she can bring an action under Article 226 of the Constitution for failure on the part of the authorities of the Corporation of Calcutta and the Calcutta Police in removing the obstruction caused on the footpath in front of the premises of the petitioner. He submits that in the instant case, the petitioner cannot be held to be a mere busy body not having any locus standi to move the writ jurisdiction. In reply to the said contentions of Mr. Roy Chowdhury, Mr. Dutta contends that the petitioner has not been able to make out any case for special damage and as a matter of fact there is an entrance by the side of the hotel room through which the petitioner can enter her residence. In fact, the petitioner has made out a case of public nuisance and he submits that a distinction should be made between a public road where the public at large have a right and other road where a few only exercise their right. In this connection, he refers to a decision of the Patna High court made in the case of Sm. Chandrawati Debi vs. Rameshwar Kaviraj, reported in A. I. R. 1968 Patna, page 422. It was held in the said decision that a distinction had to be made between a public road in which the public, in general had a right of way and a village road in which the inhabitants of a particular village or villages had the right. In the case of public road in the full sense, proof of special damage would be necessary, but in the case of village road, even in the absence of proof of special damage, a suit could be decreed. Mr. Dutta contends that if on the ground of public nuisance, the petitioner is allowed to move this court under Article 226 of the Constitution without following the procedure as laid down in Section 91 of the Code of Civil procedure, the very purpose of section 91 will be frustrated. Mr. Dutta tried to distinguish the decision of this Court made in the case of Sudhir Kumar Banerjee vs. Commissioner, Corporation of calcutta (35 C. W. N. page 133) and also the decision made in the case of scottts (P) Ltd. vs. Corporation of Calcutta (79 C. W. N. page 883 ). He contends that in Sudhir Kumar Banerjee's case, the Corporation of Calcutta admitted that the Corporation had a duty to keep the public road free from obstruction and it was only in that context the said decision was made. He contends that in Sudhir Kumar Banerjee's case, the Corporation of Calcutta admitted that the Corporation had a duty to keep the public road free from obstruction and it was only in that context the said decision was made. That apart, the question of maintainability of the writ petition was not raised in the said decision and as such the said question ' was also hot decided there. So far as the decision made in the case of Scotts (P)Ltd. is concerned, Mr. Dutta contends that the facts of the said case are entirely different. In the said case, the Corporation of Calcutta itself established a meena Bazar on the footpath and this court held that the Corporation of Calcutta had no authority to establish such a Meena Bazar by blocking the public thoroughfare even for a few hours in a day. Referring to the decision of the supreme Court made in the case of fertilizer Corporation, Kamagar Union (A. I. R. 1981 S. C. page 344), Mr. Dutta submits that in that case workers had a special interest and to have a locus standi, a person must have special interest and he can not be a busy body. After considering the submissions of the learned Counsels of the parties, it appears to me that in the instant case, the petitioner has been able to establish that she is suffering a special damage or inconvenience because of the blockage of the front room of the petitioner where the said hotel had been run. It is quite clear and evident from the affidavits filed by the Officer-in-charge of New Alipore Police Station and the Corporation of Calcutta that respondents nos. 4 to 14 have raised a temporary structure with bamboo and tarpaulin and they have been selling food and tea from the said temporary structure constructed on the footpath just in front of the said tiled shed room of the petitioner. It is immaterial if the petition can enter her house by the side door. The petitioner certainly suffers a special inconvenience if the front room of the petitioner gets blocked on accaunt of raising a temporary structure ion the foot-path running in front of the room. That apart, I am also inclined to accept the contention of Mr. It is immaterial if the petition can enter her house by the side door. The petitioner certainly suffers a special inconvenience if the front room of the petitioner gets blocked on accaunt of raising a temporary structure ion the foot-path running in front of the room. That apart, I am also inclined to accept the contention of Mr. Roy Chowdhury that if a public thoroughfare is blocked for which a person living in the locality and using the road frequently cannqt pass through the road for such blockage or obstruction, he can certairtly move the Constitutional writ Jurisdiction of the High Court for directing the concerned authorities to perform their statutory duties by removing such obstruction on the public road. In my view, in such circumstances such person cannot be held to be a mere busy body but he must be held to be a 'person aggrieved' and he has locus stand to present an application under Article 226 of the Constitution. I respectfully agree with the observation made by Sinha J (as his Lordship then was) in Sudhir Kumar banerjee's case that if the authorities failed to perform their statutory duties in removing)the obstruction on the public path, the High court can be moved in its Constitutional writ jurisdiction and the High Court has a right to command the concerned authorities by writ in the nature of Mandamus for removing such obstruction. In the instant case, the Corporation of Calcutta has also requested the Police authorities to render assistance to the Corporation of Calcutta to remove such obstruction and from the affidavit-in-opposition filed by the Officer-in-charge of the New Alipore Police station it is also clear that the Police authorities informed the Corporation of Calcutta that on specifying a particular date by the corporation of Calcutta, proper police assistance should be rendered for removing the obstruction. It is only unfortunate that such obstruction has not been removed as yet, and the said obstruction is continuing for a pretty long time. 7. THE Respondents Nos. 4 to 14 who were the employees of the said Pandey hotel may have grievances against the owner of the hotel for the alleged illegal lock out, but in my view, in an attempt to press their demands and/or to earn their breads they cannot be permitted to block the public road and start selling food and tea by raising structure on the public path. The socio-economic problem involved in such circumstances undoubtedly deserved a very careful and sympathetic consideration. But in the greater interest of the community, blockage of public thoroughfare by raising structure thereon cannot be permitted. The problem in the instant, case has been aggravated for causing great, inconvenience to smooth working of daily conservancy work which will appear from the affidavit-in-opposition of the Corporation of Calcutta. In the aforesaid circumstances, this application succeeds and the respondent nos. 1 to 3 and 15 are directed to take immediate steps for removal of the temporary structures on the said footpath and to make the said footpath free from any obstruction caused on the same so that the petitioner and other members of the public using the said footpath can move freely without any hindrance whatsoever. The writ petition is accordingly disposed of. There will be no order as to costs. Rule made absolute, order as to costs.