Amulya Pal and Another vs R.N. Roy

Banerjee, J.—In this application the Petitioner''s case is this. Since 1947 they have been occupying an open space in the vegetable section of Nafar Babu''s Bazar at 137, Bowbazar Street, where people from different villages bring their goods and offer them for sale. The Petitioners charge what they call "tola" for each basket or bag of goods brought into the said space for sale and out of it pay to the landlords 2 as. )annas two) for each basket or bag of goods : one Shaik Subhan claiming to be a person displaced from the space due to communal strife applied to the Respondent who is the Special Officer, Re-habilitation Department, Government of West Bengal, for re-instatement. Before the officer, the Petitioners pointed out that Subhan was never a tenant but was only an agent of the landlords, making collection on their behalf on goods brought into the market for sale and kept in that space. The Petitioners also pointed out to him that the Security Act did not apply to an open space or stall; so the Respondent had no jurisdiction to requisition it.

The Re-habilitation Officer, however, made an order u/s 25 (1) of the Act [same as clause 31 (1) of the Ordinance, 1949] and directed the Petitioners to place the space under the control and disposal of the Respondent.

The Petitioners moved the Secretary, Co-operative Credit and Re-habilitation Department of the Government of West Bengal against that order but with no result.

Thereupon this Court was moved for one of the prerogative rights.

In the order requisitioning the space it is referred to as "one stall at 137, Bow Bazar Street."

The only question is whether such space or stall can be requisitioned under the Act?

The Act empowers the Provincial Government by order in writing to requisition any property for re-habilitating persons displaced from their residences or shops due to communal strife.

The question is whether Subhan is a person displaced from his residence or shop?

It is not the Respondent''s case that he has been displaced from his residence.

The question, therefore, is, whether he was displaced from his shop; in other words, whether that open space is a shop within the meaning of the Act, or the Ordinance.

There is no definition of shop in the Act or in the Ordinance. The word, therefore, should be taken in its ordinary grammatical meaning, which means a building, room, etc., for retail sale of some commodity (Oxford Dictionary). It is not a stall or an open space as is the case here.

In R. v. Chapman, (1843) 7 J.P. 132, Tindal, C.J., said: "It is impossible to construe an Act of Parliament otherwise than in accordance with the common use of language; and no person, having regard to the ordinary usage of language, could take the words "shop" and "stall" as meaning the same thing."

It is a permanent place defined by precise limits on which or on part of which there should be some sort of structure where regular retail business can be carried on Summers v. Roberts, (1944) 1 K.B. 106 D.C., per Lord Cadecoate, C.J., at pp. 109, 110, 112.

In Pope v. Whalley, (1865) 6 B & S 303, Mellor, J., said at p. 313: "The true definition of shop, I think, means a place not only for selling but for storing; for instance, a drapery shop is a place for storing drapery goods and such like. But this is not absolutely decisive on the question, for in a fishmonger''s shop there may be many perishable articles not meant for storage."

The word "shop" as used in Section 4 (of the Shop Hours Act, 1892, repealed: See now Shops Act, 1912, Section 19) applies to structures which are in the nature of permanent structures, and not to a mere temporary erection of a board and trestles. W. H. Smith & Sons v. Kyle, (1902) 1 K.B. 286 D.C. Per Lord Alverstone, C.J., at pp. 288, 289.

Prima facie, a shop is a place where goods are sold by retail and store for sale : Dennis v. Hutchinson; Trafford v. Hutchinson, (1922) 1 K.B. 693 pp. 696 & 697.

The word has to be interpreted in the setting and context in which it is bound.

Subhan''s case before the officer was not that he had been displaced from his shop. He said he had a stall in the market where he acted as an aratdar (sort of commission agent) and in lieu of rent 2 (two) annas per basket or bag was paid, and that he was displaced due to riot and though he tried his best he could not get back his stall.

In the affidavit filed by the Respondent, he admits that it is an open space. He does not say it is a shop.

The aggrieved party when he moved the Rehabilitation Officer, described the premises not as a shop but as "premises No.137, Bow Bazar Street, Koley Market."

The Petitioner before us in his petition para. 3, referred to the premises requisitioned, as "an open space" at the said bazaar. Dealing with this paragraph, the Respondent said in his affidavit, in respect of the space referred to in the said paragraph . . . and in his order he mentions it as a stall.

The Calcutta Municipal Act, which applies to the premises in question and the Bengal Municipal Act make a difference between a shop and a stall, as the learned Advocate-General appearing on behalf of the Respondent frankly admitted.

In West Bengal to which the Security Act or the Ordinance is applicable, we make a difference between a "shop" and a "stall" or an "open space". In common parlance, a stall or an open space is not referred to as a "shop". I think, therefore, that the word "shop" in the Security Act should be taken in its ordinary popular meaning and that meaning is that it is a place where goods are stored and sold by retail dealers, and not a "stall" or an open space as is the case here.

The Respondent must act within the four corners of the authority given him by the Act, and cannot act beyond that authority.

He can under the Act or Ordinance requisition a shop but he has no authority to requisition a stall or an open space.

Assuming, therefore, that Subhan is a displaced person, he is not a person who was displaced from his shop.

The officer requisitioning the property has acted in excess of his jurisdiction.

The order is invalid and must be set aside. We make the rule absolute with costs.

Harries, C.J.

I agree.