Manager, Metro Theatres Ltd. vs Corporation of Calcutta

Debabrata Mookerjee, J.—The Petitioner in this case is the manager of a Calcutta Cinema known as the Metro Theatre (Calcutta) Ltd. He is being prosecuted by the Corporation of Calcutta u/s 537 read with Rule 4(2), schedule 15 of the Calcutta Municipal Act, 1951.

Section 537 of the Act provides punishment for different offences made punishable under the Act including infraction of Rules occurring in the different schedules to the Act. In the present case the infringement relates to Rule 4(1) of schedule 15. That Rule reads as follows:

4(1) No person shall erect or maintain a sky-sign without the written permission of the Commissioner which shall not be granted unless the sign is so constructed and maintained as not to be dangerous to the public or likely to fall into any street or public place.

4(2) Every written permission granted under Sub-rule (1) shall continue in force for not more than one year from the date on which it was granted, and may be revoked at any time by the Commissioner if he considers that the sky-sign for which it was granted has become dangerous to the public or is likely fall into a street or public place.

u/s 537 an infringement of Rule 4(1) entails punishment by way of a fine of Rs. 200 and the section also provides for imposition of a daily fine of Rs. 20.

It appears that in front of the premises in which the Metro Cinema is located there is a sky-signboard which is used for purposes of advertisement by means of neon tubes. The Petitioner has been paying to the Corporation of Calcutta Rs. 317 as license fee for several years in respect of this sky-signboard. The Petitioner was prosecuted some time ago by the Corporation of Calcutta in respect of the identical sky-sign for having failed as alleged to pay adequate license fee on account of the sky signboard. The Corporation''s contention in that case appears to have been that the Petitioner was liable to pay double the amount on the ground that the advertisements on the sky-signboard were displayed on both sides. That was an advantage which according to the Corporation must be paid for and in that view the Corporation levied a fee of Its. 634. The failure to pay the enhanced fee entailed a prosecution which, however, resulted in an acquittal made by a competent Court in August, 1953. It appears to have been held that that Petitioner was not liable to pay the enhanced fee and the signboard was one and consequently one fee was leviable in respect of it.

Despite the acquittal made, the Corporation appear to have stuck to their points of view and made a demand of the license fee at double rate in respect of the identical signboard for the next year but the Petitioner deposited at single rate the sum of Its. 317. This amount appears to have been kept merely in the suspense account, the Corporation still being of the view that they are entitled to a higher fee. Thereafter the present prosecution was instituted under Rule 4(1) of schedule 15 of the Act for the alleged wrongful erection or maintenance of sky sign without permission.

The Petitioner appeared in obedience to the process issued and represented to the Court that the dispute between the parties could not possibly be compressed within the limits of Sub-rule (1) of Rule 4 of the schedule 15 of the Act. Thereafter the Petitioner applied to this Court and obtained the present Rule for quashing the proceedings pending against him in the Court of the Municipal Magistrate, Calcutta.

Apart from the propriety of instituting a fresh prosecution when another of identical kind had failed, the allegations in the present case, in my view, cannot possibly be said to be covered by Rule 4(1) of schedule 15 of the Act. I have already read the Rule and the terms of it make it perfectly clear that in the interest of public safety no person can erect or maintain a sky-signboard without the written permission of the commissioner. For the guidance of the commissioner a directive is given that no such permission shall be accorded so as to endanger public safety. Rule 4(2) clearly forbids the setting up or erection of a sky-sign board without the written permission of the commissioner. If the Rule ended there it might have been contended that the Rule was merely intended to give the commissioner power to give or withhold permission in appropriate cases. But the sub-rule taken as a whole cannot possibly leave any body in doubt as to the real purpose for which that sub-rule was adopted. The commissioner is expressly forbidden to issue permission unless and until he is satisfied that by the erection or maintenance of such sky-signboard public safety will not be in jeopardy. The condition precedent to the grant of such permission is the satisfaction of the commissioner that the erection of the sky-sign will in no way imperil public safety and that the sky-sign is not likely to fall into a public streets or place.

Sub-rule (2) of Rule 4 reinforces this position. It might be that a person may, upon wrong representations, induce the commissioner to grant or Issue permission to set up a sky-sign. In such case the legislature has empowered the Corporation to revoke the permission which has been granted upon such misrepresentations or upon alteration of circumstances which makes the continuance of sky-signboard unsafe from the point of view of public safety. The legislature has thus expressly provided for reviews of each case upon its merits at the end of every 12 months when such permission will either be renewed or refused. The Rule even provides for revocation at any time by the commissioner of the permission granted by him upon his being satisfied that the sky-sign has since become dangerous to the public or is likely to fall into a public street or place endangering public safety.

I do not think the provision could have been made more express and explicit that what is contained in these two sub-rules of Rule 4. These two rules read together cannot possibly leave the matter in doubt that wide powers have been given to the commissioner to give or withhold permission in appropriate cases, and even to revoke it upon proof of altered circumstances. Thus the paramount consideration is public safety. That is the governing notion in Rule 4 of the schedule 15 of the Act.

Mr. Banerjee appearing on behalf of the Corporation has strenuously contended that although Sub-rule (1) of Rule 4 contains provisions to the effect that public health and safety have to be taken note of, nevertheless the earlier part of Sub-rule (1) only provides for the issue or refusal of permission to erect sky-signs. In that view it is contended that the Corporation has a right to proceed against the person who has failed to take out a license or the written permission for the erection or maintenance of the sky-signboard. I am afraid I cannot possibly accept this contention. If this point of view prevailed that would imply that the rule as it stands will have to be truncated with the result that the earlier part will receive effect without regard being had to the latter part or even to Sub-rule (2) of Rule 4. It would be doing, in my view, violence to language and also perhaps to good sense if Sub-rule (1) of Rule 4 has to be interpreted as merely giving the power to the Corporation to levy a license fee and nothing more. I consider the real purpose of Rule 4 is to make adequate provision in the interest of public safety where sky-signboards are allowed to be fitted up. It is for this reason that the term of the sanction does not extend beyond a period of 12 months. It is this reason again which has induced the legislature to give power to the Corporation to revoke the permission already granted. The protection of public safety is the principal consideration in Rule 4 of schedule 15 of the Act.

Section 548 of the Calcutta Municipal Act provides for duration, conditions, suspensions, revocations of licenses and written permissions. That is a compendious section the provisions of which appear to me to be adequate. It cannot be argued that this section can be ignored in preference to Rule 4 of schedule 15 of the Act for the purpose of compelling payments of license fees or fees for written permission. Sub-section (2) of Section 548 provides as follows:

548(2). Except when it is in this Act or in any Rule or by-law made thereunder otherwise expressly provided, for every such license or written permission a fee may be charged at such rate as may from time to time be fixed by the Corporation and such fee shall be payable by the person to whom the license or written permission is granted.

This provision therefore gives wide powers to the Corporation to levy proper fees for a written permission. They can thus enforce payment of fees for setting up of any sky-sign. The fees chargeable are at the option of the Corporation and if that option is properly exercised with due deference to the provisions of the Act, I think there shall be nothing to prevent the Corporation from getting their proper and legitimate fees in respect of sky-signboards. But that means and implies that the procedure for levy and enforcement of fees and written permissions has to be followed in accordance with law. A public body like the Corporation of Calcutta cannot be permitted to strain the language of Rule 4 of schedule 15 and to make use of it for the purpose of benefiting their revenues. As I have indicated there are other ways provided for by the legislature which when duly followed will entitle the Corporation, to levy appropriate fees in respect of anything for which a written permission or license is required. But the provisions of Rule 4 of schedule 15 cannot possibly be pressed into service in this indirect manner in order to augment revenue.

It is not necessary to refer in further detail to the other provisions contained in schedule 15 of the Act which is significantly headed "Rules as to the Regulation, Maintenance, Protection and "Repair of Streets and Public places". Most of these provisions have been designed to promote public health and safety and I do not see how Rule 4 which occurs in that context can possibly be availed of to enforce payment of an enhanced license fee.

The result, therefore, is that the present proceedings must be held to have been misconceived and are accordingly quashed.

The Rule is made absolute.

It will be open to the Corporation of Calcutta to enforce other remedies, if any, available to them under the law.