Dhunmun Chowdhury and others vs Emperor

Jwala Prasad, J.—The petitioners have been convicted u/s 143 of the Indian Penal Code and sentenced to a fine of Rs. 30 each.

The common object is stated to be

"to prevent Abdul Halim and Ghulam Mohidin from collecting toll in Gudri Bazzar on the 7th August 1921."

Abdul Halim is a Sub overseer and Mohidin has taken a lease of the Bazaar from the Municipality on the 26th of July last. The settlement was made in pursuance of a resolution of the Municipal Commissioners at a meeting held on the 10th of May 1921, resolving to levy toll at the rate of half a pice from each vendor sitting and selling his goods on a road within the Lohardagga Municipality. Before that resolution was passed in 1920, the Municipality had issued a notice prohibiting the people to keep their stalls along side the road in Gudri Bazaar so that the traffic may not in any way be obstructed and accident may not happen. This notice was not obeyed. The Municipality evidently did not enforce it. The Magistrate says that the width of the road is 28 feet and between the stalls ample space is still left for traffic. The Municipality, therefore, abandoned the idea forbidding persons from keeping the stalls alongside of the road, but they have resolved to levy some toll or fee from persons who expose their goods for sale in the market. Dhunmun, one of the accused, has got his shop and it is said that he prevented the realisation of toll, from people sitting in front of his shop. The contention before me is that the Municipality has no right to realise any rent, toll or fee from persons exposing their goods for sale on the road side. This contention is based upon the fact that Part X of the Municipal Act (Act III of 1884), which deals with the regulation of market has not been extended to the Lohardagga Municipality. The market, which is held on the Lohardagga road (50 feet on each side of the Road) on market days is not a Municipal market and, therefore, the Municipality is not entitled to charge any toll rent or fee from persons exposing their goods in the market on the road side. It is conceded by the Magistrate that Part X of the Act, has not been extended to the Lohardagga Municipality and, therefore, the place where the stalls are located, in Lohardagga on the roadside is not the Municipal market. Section 335, Part X of the Act says:-

"In any Municipality to which this Part shall have been extended in the manner prescribed by section 222, the Commissioners at a meeting may provide land for the purpose of being used as a Municipal market and may defray the cost of providing such land and of all expenses necessary for the establishment of such market from the Municipal fund, and may take a lease of any market, and may charge rent, tolls and fees for the right to expose goods for sale in such market, and for the use of shops, stalls and standings therein. All such rents, tolls and fees may be covered as arrears of tax under the provisions of sections 120 to 129 (both inclusive)"

The Municipality, therefore, cannot enforce any rent, tolls or fees from the shopkeepers or persons exposing their goods on the Lohardagga road u/s 335, inasmuch as the said spot is not a Municipal market. As the Municipality itself has no right under that section, it can confer no right upon the complainant lessee in the present case. The Magistrate concedes this in his judgment and says that the right of the Municipality though not arising u/s 335, does arise by an analogy of the common law as the Municipality is the owner of the road in question and has a right to realise anything from persons for the use and occupation of the road. This appears to be the meaning of the Magistrate''s finding though he has not said so in so many words. He has come to this conclusion by an analogy, as he says, of Section 234 of the Municipal Act. Under this section, the Commissioners may grant permission to any person for such period as they may think fit, to deposit any moveable property on any road, or to make any excavation in any road or to enclose the whole or any part of any road, and may charge such fees as they may fix for such permission.

This section in itself is inapplicable inasmuch as the shop-keepers or the Bazar people of Lohardagga have neither asked for nor has any permission been given to them to deposit any moveable property on the road in question. That section in itself does not apply to exposing goods for sale on any road. That is a section of emergency whereby a person, who wants to use the road temporarily for certain object, may be allowed to deposit any moveable property, such as bricks, etc., for the construction of his house or may dig a portion of it for carrying, say, water and the Municipality may charge such fees as it considers reasonable in order to compensate itself for the damage caused to the road by the temporary use of it by any person. Under this section the Municipality is not entitled, to my mind to lease out its right for the purpose of carrying on shops or exposing goods for sale. The property in the road has been vested in the Commissioners by section 30 of the Act. The Municipality, therefore, can use the road as owner of it for the purposes set forth in the Act. If the Municipality thinks that any road or a portion there of can be leased by it to any person for any purpose there must be a contract between the Municipality and that person, and without a contract the Municipality is not entitled to force the payment of any tax by any person. In the present case there is no contract between the shop-keepers and the Municipality with respect to the goods they expose on the road side for sale. There is no relationship of landlord and tenant in any sense of the term and, therefore, the Municipality is not entitled to realise any rent, tolls or fees for the use and occupation of the road side land. The spot in question is neither a Municipal Market to which the provisions of Part X of the Municipal Act apply. The lessee of the market has no right to realise the rent. Therefore the petitioners did not commit any illegal act in preventing the lessee from realising rent from the shopkeepers.