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TMI Blog1937 (3) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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 Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ens 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 permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittee, 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 spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joyment 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 reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers 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 awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raseology 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 inspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undation and upon a close examination there seems to be no real justification for the somewhat inflated claim amounting to ₹ 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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