1937 (3) TMI 17 - HC - Indian Laws

Summary

Issues Involved:
1. Legitimacy of resolutions passed by the Corporation and its committees.
2. Rights of the National Swimming Association to use the tank in Cornwallis Square.
3. Validity and interpretation of bye-laws under the Calcutta Municipal Act.
4. Claim for damages and injunction against the Corporation.

Issue-wise Detailed Analysis:

1. Legitimacy of Resolutions Passed by the Corporation and its Committees:
The National Swimming Association (NSA) challenged several resolutions passed by the Corporation and its committees, arguing that they were void and inoperative. The court found that the resolutions were indeed passed by bodies not authorized or empowered to do so. Specifically, the District No. 1 Standing Committee did not have the proper delegation of functions, powers, or duties from the Corporation to pass or confirm such resolutions. The court concluded that the resolutions passed on 22nd September 1934, confirmed on 8th December 1934, and those passed on 30th March 1935, were void and inoperative.

2. Rights of the National Swimming Association to Use the Tank in Cornwallis Square:
The NSA contended that they had a right to use the tank for swimming, which was challenged by the Corporation's resolutions. The court examined whether the NSA had an inherent right to use the tank. Initially, the court recognized that the public had a right to use the park and its facilities, including the tank, for recreation. However, this right was affected by the enactment of the Calcutta Municipal Act of 1899, which prohibited bathing in any place vested in the Corporation. Although the 1899 Act was repealed by the 1923 Act, the court held that the repeal did not revive the right to bathe or swim, as per Section 8 of the Bengal General Clauses Act, 1899.

3. Validity and Interpretation of Bye-laws under the Calcutta Municipal Act:
The court scrutinized bye-law No. 13 made under Section 559(52) of the Calcutta Municipal Act, 1899, which prohibited bathing in tanks without the Chairman's authority. The court found that the bye-law was not validly made under Section 559(52), as this section was intended to regulate places of amusement and entertainment owned or conducted by third parties, not public parks or tanks. Consequently, the bye-law was deemed void and inoperative. The court also noted that if the bye-law had been valid, it would have continued to subsist despite the repeal of the 1899 Act, as per Section 25 of the Bengal General Clauses Act.

4. Claim for Damages and Injunction Against the Corporation:
The NSA sought damages of Rs. 6,000 for the alleged ouster from their bathing place and the destruction of their property by the Corporation's servants. The court found the claim for damages to be unsubstantiated and shadowy. However, the Corporation undertook to return the materials and articles removed, leading the NSA to abandon the claim for damages. The court granted an injunction restraining the Corporation from acting upon the void resolutions, recognizing that the NSA had a right to prevent the invasion of their property rights.

Conclusion:
The court allowed the appeal in part, granting an injunction against the Corporation from acting on the void resolutions. The NSA was awarded half of the taxed costs up to the judgment in the lower court and half of the taxed costs of the interlocutory applications in connection with the appeal. Each party was to bear their own costs in the appeal itself. The judgment emphasized the importance of proper delegation of powers within municipal bodies and the protection of public rights in public parks and facilities.