JUDGMENT
S.B. Sinha, J.
1. The Appellant was Respondent No. 4 in the writ application and this appeal arises out of a judgment and order dated 28-11-96 passed by a learned single Judge of this Court in C.O. No. 6962(W) of 1996 allowing a writ application filed by the writ petitioner respondent, whereby and whereundcr the authorities of the Panihati Municipality have been directed to take action under Chapter-XVII of the West Bengal Municipal Act, 1993 (hereinafter referred to as “the said Act”), to make reasonable and adequate provision for regulation and protection of Mollarhat Market and not to proceed with the sanction of the plan in the area and/or places covered by the said market.
2. The subject matter of the writ petition was an old market situate at Agarpara in the District of 24-Parganas (North) wherein the petitioners sell their commodities. Some of the petitioners are said to have permanent shops therein and arc monthly tenants under the appellants and/or their predecessor-in-interest. The said market belonged to the Debuttar Estate of Sri Sri Radha Ballav Jew. The shebaits of the said estate by an indenture dated 15th September, 1989 leased out the said property to the appellants for a period of 99 years. In terms of one of the covenant, of the said indenture, the appellant was entitled to raise new structures.
3. In terms of the said covenants, the appellant filed an application, before the respondent-Panihati Municipality within whose jurisdiction the aforementioned market falls, for sanction of a building plan; an objection whereto was raised by the petitioners and others. Apprehending unlawful eviction at the hands of the appellant, the writ petitioners filed the aforementioned writ application claiming, inter alia, the following reliefs :–
“(a) A writ in the nature of Mandamus directing the respondent No. 2 to take action under Chapter XVIII of the Bengal Municipal Act to protect market so that market should be continued under Section 2(31) of the West Bengal Municipal Act, 1993 keeping in mind that private market is existing for about 80 years under the name and style Mollarhat and more than two hundred persons’ lives and existence are in the hands of respondents.
(b) A writ in the nature of Prohibition with a direction to Prohibit the respondent fromchanging the existing market in a shape of multistoried building depriving petitioners’ livelihood.
(c) A writ in the nature of Certiorari directing the respondents to produce and certify the records, so that proper justice may be done to the inhabitant.
(d) Ad-interim direction upon the respondent not to pass any plan which is detcrmental to the interest of existing market which is situated at Mollarhat in the Municipal Holding No. 32 to 38 of the Panihati Municipality ”
4. The respondent-municipality as also the appellant filed their respective affidavits-in-opposition. The respondent-municipality in their affidavit-in-opposition, inter alia, stated that it had a right to collect rates and taxes for each holding either from owner or occupier and it had been carrying on its statutory obligation of cleaning the market regularly. According to the Municipality, it expected that despite sanction of the plan submitted to it all the petitioners shall not be evicted. According to it, the plan was not sanctioned because of the rainy season. The appellant in his affidavit-in-opposition questioned the locus stand) of the petitioner and inter alia, contended that the said market is aprivate market. It was stated that the tenants are defaulters and, thus, are liable to be evicted.
5. The learned trial Judge in the impugned judgment, inter alia, held that the market in question does not come within the purview of the definition of ‘market’ as contained in Section 2(31) of the Bengal Municipal Act, 1993 (hereinafter referred to and called for the sake of brevity as “the said Act”). The learned trial Judge, however, opined that the market in question has all the attributes of a market and relying on certain statements made in the affidavit-in-opposition came to the conclusion that the said market is entitled to be treated as a market as per definition of the said Act. As a logical corollary, the learned trial Judge held that the respondent-municipality has a statutory obligation to regulate the market in terms of Section 63(1)(h) of the said Act.
6. Mr. Kapoor, the learned counsel appearing on behalf of the appellant, inter alia, submitted that the writ petitioners being tenants have no locus standi to question the sanction of a building plan and in support of his aforementioned submission, placed reliance upon adi vision bench decision of this Court in Kumuda Sundari Properties (Private) Ltd. v. Namdang Tea Co. Ltd. . According to the learned counsel, the inclusive definition of a ‘market’ should not be treated to be an expansive one so as to include any market whatsoever and in support of his aforementioned contention reliance has been placed on the South Gujarat Roofing Tiles Munufacturers Association v. State of Gujarat, and Hindusthan Aluminium Corpn. Ltd. v. State of U.P. .
7. According to the learned counsel if a wide meaning is given to the word ‘market’ as defined in Section 2(31) of the said Act, Section 278 of the said Act would become otiose. As regard meaning of the word ‘regulation’ realiancc has been placed by Mr. Kapoor in Municipal Committee, Malcrkotla v. Haji Ismail . The expression ‘to regulate’ within the meaning of Section 63(1)(h) of the said Act, contends Mr. Kapoor, cannot be given a wide meaning and it should be construed to mean ‘it runs correctly’ and the power of the Municipality is merely to see that it is running in terms of the rules and privileges. According to the learned counsel, the power of regulation and the power to sanction building plan are contained in different chapters of the Act and both the powers are not overlapping.
8. Mr. Dutta, the learned standing counsel appearing on behalf of the respondent-municipality, merely submitted that the market in question is neither a declared market nor the same is a licenced one and, thus, does not come within the purview of Section 2(31) of the Act.
9. Mr. A.P. Chatterjee, the learned counsel appearing on behalf of the writ-petitioner-respondents, submits that the market being in existence for the last 80 years, it would not be correct to contend that the same does not come within the purview of definition of ‘market’ under the said Act. The learned counsel submits that the petitioners have a locus to maintain this writ application as there is a threat of eviction. According to the learned counsel, Section 2(31) being an inclusive definition, it brings within its purview all markets which would be evident from that fact that Section 63(1)(h) applies to all markets and not only to the markets defined under the said Act. Drawing our attention to Section 197 and Section 200(1)(c) of the said Act the learned Counsel contends that by sanctioning a building plan not only the petitioners may be evicted but the market itself may be destroyed which would be subversive of the statutory duty of the municipality to regulate the same as in view of the aforementioned provision, the Municipality cannot destroy a market in the name of regulation.
10. Mr. Chalterjee would urge that the right of the petitioner to carry on business in the market would come within the meaning of ‘livelihood’ as envisaged under Article 21 of the Constitution of India and, thus, this Court may render adequate protection to the petitioners. The learned counsel in this connection has placed strong reliance upon Olga Jellies v. Bombay Municipal Corporation .
11. The principal question, in view of the rival contentions of the parties, which arises for consideration of this Court is as to whether the learned trial Judge was correct in issuing the directions at the instance of the petitioners. Bengal Municipal Act was enacted to consolidate and amend the law relating to Urban Municipal Affairs in West Bengal
12. Before proceeding to deal with the respective contentions, the relevant provisions of the said Act may be noticed :–
“Section 2(31). ‘Market’ includes any place, by whatever name called, where persons assemble for the sale of meat, fish, fruit, vegetables, livestock, or any other article of food of a perishable nature, or any other article for which there is a collection of shops or warehouses or stalls, declared and licensed by the Municipality as a ‘Market'”
“Section 2(37). ‘Municipal Market’means a market belonging to or maintained by the Municipality”.
“Section 63(1)(h)…..
(h) Construction and maintenance of municipal markets and slaughter houses and the regulation of all markets and slaughter houses.”
“Section 197(1) In this Chapter, unless the context otherwise requires, the expression ‘to erect a building’ means — (a) to erect a new building or any site, whether previously built upon or not.
(b) to re-erect —
(i) any building of which more than one-half of the cubical contents above the level of plinth have been pulled down, burnt or destroyed, or
(ii) any building of which more than one-half of the superficial area of the external wall above the level of plinth has been pulled down, or
(iii) any frame-building of which more than half of the number of posts or beams in the external walls have been pulled down;
(c) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation, subsequently appropriated for any other purpose;
(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only;
(e) to convert into a place of religious worship or a sacred building any place or building not originally constructed for such purpose;
(f) to roof or cover an open space between walls or buildings to the extent of the structure formed by the roofing or covering of such space;
(g) to convert two or more tenements in a building into a greater or lesser number of such tenements;
(h) to convert into a stall, shop, office, warehouse or godown, workshop, factory or garage any building not originally constructed for use as such, or to convert any building constructed for such purpose by sub-division or addition, in greater or lesser number of such stalls, shops, offices, warehouses or godowns, workshops, factories or garages;
(i) to convert a building, which, when originally constructed, was legally exempt from the operation of any building regulation contained in any other law for the time being in force, into a building which, had it been originally erected in its converted form, would have been subject to such building regulations;
(j) to convert into, or use as a dwelling house, any building which has been discontinued as, or appropriated for any purpose other than, adwelling house;
(k) to make any addition to a building;
(l) to close permanently any door or window in any external wall;
(m) to remove or reconstruct the principal staircase or to alter its position.
(2) For the purposes of this Act, “Use group” or “occupancy” shall mean the purpose for which a building or part of a building is used or intended to be used. For the purpose of classification of a building according to occupancy, occupancy shall be deemed to include subsidiary occupancies which are contingent upon it. The classification of occupancy shall include residential, education, institutional, assembly, business, mercantile (retail), mercantile (wholesale), industrial, storage and hazardous. The principal occupancy shall be the occupancy covering more than 50 per cent of the floor area of a building. In case no single occupancy covers more than 50 per cent of the floor area of a building, the building shall be classified as “mixed use building”. The classification of buildings based on principal occupancy, shall be as follows:–
“residential building”, “educational building”, “institutional building”, “assembly building”, “business building”, “mercantile building (retail)”, “mercantile building (whole-sale)”, “industrial building”, “storage building” and “hazardous building”.
“Section 200(1) No person shall, without the written permission of the Chairman or otherwise than in conformity with the conditions of such permission —
(a)…..
(c) change or allow the change of the use of any building erected before the commencement of this Act contrary to the use for which such erection was originally sanctioned”.
“Section 278. Private markets and slaughter houses —
(1) No place, other than a municipal market, shall be used as a market unless such place has been licensed as a market by the Board of Councillors under the provisions of this Chapter on such terms and conditions as the Board of Councillors may determine.
(2) No place, other than a municipal slaughter house, shall be used as a slaughter house ;
Provided that nothing in this sub-section shall be deemed —
(a) to restrict the slaughter of any animal in any place on the occasion of any religious festival or ceremony subject to such conditions as the Chairman-in-Council may, by public or special notice impose in this behalf, or
(b) to prevent the Board of Councillors from setting apart any place for the slaughter of animals in accordance with the religious custom in vogue.
(3) The Chairman-in-Council may require the owner or the occupier of any licensed private market to provide approach road or passage or pave, drain or light or to provide such conveniences for the use of persons resorting to such markets as it may deem fit.”
13. The learned trial Judge as indicated hereinbefore, has held that the market in question does not come within the purview of the definition of “market “as contained in Section 2(31) of the said Act, but it has all the attributes of a market. There is no dispute that the market in question is not a Municipal Market within the meaning of Section 2(37) of the said Act. The definition of a “market” occurring in Section 2(31) although uses the word “includes” but reading the said provision in its entirety, we are of the opinion that the same does not contain an expansive definition. The word, ‘includes’ refers only to place (by whatever may be called) where persons assemble for sale of the commodities mentioned therein or warehouses or stalls, but there cannot be doubt that such a place has to be declared and licensed by the Municipality as a ‘market’. Declaration and Licensing of market, in our opinion, is mandatory. Regulation and control of a market can, inter alia, be done by taking recourse to licensing the same so as to make the licensee abide by the conditions thereof.
13A. If a wide definition as suggested by Mr. Chatterjee is attributed to the word, ‘market’, the words, ‘declared’ and ‘license’ by the Municipality as a market (irrespective of the place, name and it brings within its fold, collection of shops or warehouses or stalls), shall become otiose and the same would destroy the purposes envisaged under Sections 63(1)(h) and 278 of the said Act.
14. It is pertinent to note that Section 278 clearly prohibits user of a place as a market unlelss the same has been licensed by the Board of Councillors under Chapter XVIIII thereof. If a market although unlicensed is brought within the definition of market as contained in Section 2(31), the purpose of Section 278 also would be frustrated.
In The South Gujarat Roofing Tiles Manufacturers v. State of Gujarat , the Apex Court states :–
“We do not think there could be any inflexible rule that the word ‘include’ should be read always as a word of extension without reference to the context.”
In Hindustan Aluminium Corporation Limited v. Slate of Uttar Pradesh , it is stated that the word of a statute should be considered keeping in view the context of the statute.”
It is well known that one should not, unless forced even when the definition is in the form includes, carry the extension beyond the border line of doubtful cases (see 1954 (1) QB 77 at pages 81-82 and 1953(1) QB 318).
Although ordinarily the word, ‘include’ is used in the interpretation clauses in order to enlarge the meaning of Words or Phrases occurring in the body of the statute but if the same is susceptible of another construction, which may become imperative, the said rule may not be adhered to. The context of the Act may be sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions used.
Section 63(1)(h) occurring in Chapter VI provides for powers and functions of the Municipality. It castes an obligatory duty on municipalities to make reasonable and adequate provisions for the matters enumerated therein and Clause (h) which, inter alia, provides for regulation of all markets and slaughter houses must be construed to mean that the same should be in the sphere of public works. The word, ‘regulation’ occurring in Section 63(1)(h) should, therefore, be read in the context of the function of a Municipality to make reasonable and adequate provisions and the financial means in the sphere of public works. Regulation of all markets and slaughter houses in the sphere of public works must, therefore, be preceded by a reasonable and adequate provision which can be done only when a market is licensed one and not to otherwise. In fact, a market which is not licensed cannot be allowed to function at all in terms of Section 278 of the said Act and in that view of the matter, question of regulating the same would not arise. Although Clause (h) of Sub-section (1) of Section 63 refers to all markets but the same must mean market and municipal market within the meaning of provision of the statutes as the functions are to be performed in ‘this sphere of public works’ and not in respect of a place which is a private property.
It may be true that the power to regulate carries with it full power over the things subject to regulation and in absence of restrictive words the power must be regarded as plenary over the entire subject. The power to regulate the employees’ power to check and imply the power to prohibit under certain circumstances as were the best or only efficacious regulation consists of suppression, See K. Ramanathan v. State of Tamil Nadu .
In Wade’ Administrative Law, Sixth Edition, Page 462, it is stated :–
“Another ambiguous word, common in administrative law, is regulate. It has several times been decided that a power to regulate does not extend to a power to prohibit, the assumption being that a power to regulate implies the continued existence of what is to be regulated. But the contrary has also been held where the context was suitable. Power to prohibit, furthermore, may include power to regulate, as by making some activity subject to the grant of permission.”
15. In this view of the matter, we are not in a position to agree with the learned trial Judge that the petitioners were entitled to maintain the writ application. The alleged rights of the petitioners vis-a-vis appellants does not envisage any public law function. Public Law Character being absent in the relationship between the parties, the writ petition will not be maintainable. Furthermore, the Municipality while granting sanction of a building plan exercises a statutory power. A statutory authority should not be prohibited from exercising a power granted to it under a Statute and that too at the instance of the tenants who have no say in the matter at that stage.
16. The reason as to why legislature has though it fit to bring only the markets within the purview of the definition of Section 2(31) and 2(37) is not for us to consider.
17. In Rathi Khandsari Udyog v. State of U.P. reported in, , Thakkar, J., speaking for the majority stated (Para 38):–
“It is not for this Court to question why Khandsari produced by the petitioners is included when sugar produced by the Mills is not so included. It is not a question to which we can legitimately address ourselves, for essentially it is a question of legislative wisdom and legislative policy dictated by countless and compels considerations. The Court cannot and will not, substitute its own wisdom in place of the legislative wisdom in such matters. The Court will not impose on itself this responsibility, if not for any other, reason than for the reason that it is beyond its province. The arguments advanced on this wavelength need not, therefore, detain us any longer.”
In Kumuda Sundari Properties (Private) Ltd. v. Namdang Tea Co. Ltd. , a Division Bench of this Court has held that the tenants have no right to make objection to the sanction of the building plan. It was, however, observed (At p 270, Para 11):–
“The Municipal Authorities ought to consider the saidquestions and decide whether the proposed construction works without fulfilling all the conditions of the sanctioned plan would be lawful. We however, make it clear that in any future proceeding if commenced against the appellants, the present respondent No. 1 Namdang Tea Co. Ltd. need not be given notice of hearing.”
18. The question as to whether the building plan submitted by the appellant should be sanctioned or not is matter which falls exclusively within the domain of Municipal Authorities. While doing so, there cannot be any doubt whatsoever, it is bound to take into consideration the provisions of the said Act as also the question as to whether permission should be granted to change the ‘user’ of the structure for which it was sanctioned. At this juncture, we are of the opinion, that such a question is merely academic and does not fall for our consideration. The power of this Court in such matters is very limited inasmuch as a writ petition would only be maintainable if the threat alleged by the writ petitioners has an immediacy and infringes the legal right of the petitioners. We also do not find any force in the contention of Mr. Chatterjee that in the instant case this Court following Olga Tellis (supra) should exercise its jurisdiction inasmuch as the right of the petitioners as a tenant of the appellant can be enforced before an appropriate forum if and when as occasion arises therefor and this Court cannot exercise its jurisdiction under Article 226 of the Constitution of India only on surmises and conjuctures.
19. For the reasons aforementioned we have no other alternative but to hold that the writ petition was not maintainable and the impugned judgment is, therefore, liable to be set aside. Before parting with this case, however, we may record that Mr. Kapoor has assured us that his client has no intention to evict the writ petitioners immediately and forcibly.
20. In the facts and circumstances of this case the parties are directed to bear their costs throughout.
Rumapal, J.
21. I agree.