Calcutta
Youth Front & Ors Vs. State of West Bengal & Ors [1987] INSC 218 (18
August 1987)
SEN,
A.P. (J) SEN, A.P. (J) RAY, B.C. (J)
CITATION:
1988 AIR 436 1987 SCR (3) 987 1987 SCC Supl. 571 JT 1987 (3) 348 1987 SCALE
(2)383
ACT:
Calcutta
Municipal Corporation Act, 1980---Section 353(2) thereof with Explanation
thereto--Validity of grant thereunder of licence of sub-soil of Satyanarayan
Park, Calcutta for implementation of development scheme.
HEADNOTE:
The
petitioners filed a writ petition in the High Court, challenging the legality
and propriety of the grant of a licence by the Calcutta Municipal Corporation
of the subsoil of Satyanarayan Park to respondent No. 14--Messrs.
Happy
Homes & Hotels Private Limited--for a period of 30 years for the
implementation of a development scheme, namely, construction of a two-storeyed
air-conditioned underground basement market and parking place. The High Court
(Single Judge) repelled the contentions of the petitioners and dismissed the
writ petition. Against the judgment and order of the Single Judge, the
petitioners preferred an appeal before the Division Bench of the High Court.
The Division Bench dismissed the appeal. Aggrieved by the decision of the High
Court, the petitioners filed petitions for special leave before this Court for
relief.
Disposing
of the petitions, the Court,
HELD:
In these petitions, two questions mainly arose, namely, (i) whether the grant
of licence by the Municipal Corporation in favour of respondent No. 14, Messrs.
Happy Homes and Hotels Pvt. Ltd., of the sub-soil of Satyanarayan Park for the
implementation of a development scheme, namely, to hold the said market for 30
years on payment of a premium of Rs.30 lakhs and a licence fee of Rs.40,000 per
month on certain terms and conditions, was in breach of its statutory powers
under sub-s. (2) of s. 353, read with the Explanation thereto of the Calcutta
Municipal Corporation Act, 1980, and (ii) should the expression 'development
work' in s. 353 (2) of the said Act, read with the Explanation thereto be
construed to mean development work qua the park, i.e., such development work
must be confined to the proper and better utilisation of the park? [991G-H;
992A-C] 988 Counsel for the petitioners assailed the action of the Municipal
Corporation substantially on-two grounds briefly stated as (i) The Municipal
Corporation had no power to alienate or part with possession of any public
street, park, square or garden or the sub-soil thereof for the purpose of
implementation of any development work, etc., and (ii) On a true construction
of sub-s. (2) of s. 353, read with the Explanation thereto, the development
work either underground or on the surface of a public street, park, square or
garden, must be for development and improvement by way of proper and adequate
or better utilisation of any such public street, park, etc. [992D-F] Shri
Somnath Chatterjee, counsel for respondent No. 14, contended that the grant of
licence by the Municipal Corporation of the sub-soil of Satyanarayan Park was a
bona fide exercise of its statutory powers, and the construction of the
underground market would not destroy its intrinsic character as a park and
there was no warrant to give a restrictive meaning to the expression
'development work' in s. 353(2) of the Act, read with the Explanation thereto.
He drew attention of the Court to a supplementary affidavit filed by his
client, showing that the structural work of the underground market had been
completed and the concrete roof had been laid, and all that remained was the
laying of a park. It appeared there from that the value of the work done so far
was Rs.2.30 crores out of the estimated cost of Rs.4.50 crores, and the
underground air-conditioned market was likely to be commissioned within a
couple of months, and also that the respondent No. 14 had entered into a
contract with Joshi & Associates, Architects, for the re-development and
relaying of the Satyanarayan Park as a terrace garden; a letter of the
Agri-Horticultural Society of India gave a detailed scheme for such re-location
of the park as a terrace garden, etc. [992H; 993A-C] The material on record
clearly showed that the intrinsic character of the Satyanarayan Park as public
park would not be destroyed by the construction of the underground market which
with its raised height at 6 feet from the road level was to have a terrace
garden. Under the scheme, there would be no construction on the park; the
underground market would be under the park and not over the park, and the
Satyanarayan Park would become a real park with a lush green garden, tail trees
and shrubs, etc. It was significant that the Division Bench had issued a writ
of mandamus commanding the respondents to restore Satyanarayan Park as a public
part as stipulated in the deed of licence and to maintain it as a public park.
The High Court (Single Judge) gave the finding that the development scheme
would not create any ecological 989 imbalance, but would ensure the creation of
a green belt.
There
would thus be a 'patch of green' in the thickly congested Burrabazar area which
would tend to improve the ecological balance and provide a place of recreation
for all. [993D-G; 994A-C] In the facts and circumstances of the case, the High
Court was justified in holding that the implementation of the development
scheme would squarely fall within the ambit of sub-s. (2) of s. 353 of the
Calcutta Municipal Corporation Act, 1980 and the construction of the
underground market was not intended and meant to destroy the intrinsic
character of the Satyanarayan Park as a public park; on the contrary, the
scheme was to re-locate and re-develop the part as a public park. There was no
justification whatever to interfere with the judgment of the High Court.
[994C-D] The Court directed that the grant of a fully air-conditioned market on
a premium of Rs.30 lakhs and a rent of Rs.40,000 per month, which was revisable
at the end of 30 years had to be altered. It was clearly against the public
interest to grant the market on a rent of Rs.40,000 per month, having regard to
the spiral rise of rents of commercial premises in all urban areas. The Court
directed the parties to revise the terms and posted the case for further
directions on August 12, 1987. On that day, Shri Som Nath Chatterjee filed on
affidavit on behalf of his client, giving an undertaking to the following
effect:(1) M/s.
Happy
Homes & Hotels Pvt. Ltd. shall pay licence fee @Rs.75,000 per month which
shall be revisable at the end of the every three years; (2) It shall maintain
the underground market in proper state of affairs and the air-conditioning
plant therein in proper workman-like condition until the expiry or
determination of the licence; (3) It shall relocate and re-develop Satyanarayan
Park as a public park at its own expense as provided in the deed of licence for
which it has entered into a contract with Agri-Horticultural Society of India,
and it shall maintain properly the said park as a public park throughout the
entire period of 30 years. [994E-H; 995A] The Special Leave Petitions were
dismissed subject to this modification. [995B] Attorney General v. Corporation
of Sunderland LR-[1875-76] 2 CH. D. 634, referred to.
Civil
Appellate Jurisdiction: Special Leave Petitions (Civil) Nos. 5678-79 of 1987.
990
From the Judgment and Order dated 8.4.1987 of the Calcutta High Court in
F.M.A.T. Nos. 2256 and 1350 of 1986.
S.R.
Srivastava for the Petitioners.
Tapas
Ray, Somnath Chatterjee, Sushil Kumar Jain, B.P. Singh and A. Misra for the
Respondents.
The
Order of the Court was delivered by SEN, J. These special leave petitions are
directed against a judgment and order of a Division Bench of the High Court of
Calcutta dated April 8. 1987 upholding the judgment and order of a learned
Single Judge dated July 17, 1986 dismissing the petition filed by the petitioners
under Art.
226
of the Constitution. By the writ petition the petitioners had challenged the
legality and propriety of the grant of licence by the Calcutta Municipal
Corporation of the subsoil of Satyanarayan Park to respondent no. 14 Messrs
Happy Homes & Hotels Private Limited for a period of 30 years for the
implementation of a development scheme, namely, construction of a two-storeyed
airconditioned underground basement market and parking place on mani fold
grounds inter alia that the construction of the said underground market would
affect the ecological balance because the park was situate in a densely
populated area like Burrabazar in the Metropolitan City of Calcutta, that the
construction would effect traffic jams in or about the said area leading to a
further ecological imbalance and that the Corporation had no authority to grant
the licence of the subsoil of the park for the implementation of any
development scheme which was not for the development of the park by way of a
proper and adequate or proper utilisation of such park. In a considered
judgment, the learned Single Judge (Umesh .Chandra Banerjee, J.) repelled the
contentions advanced on behalf of the petitioners. He considered the questions
in depth and held that the grant of licence of the subsoil of Satyanarayan Park
for construction of the underground market would not destroy its intrinsic
character as a park and the implementation of the development scheme by the
Municipal Corporation was a bona fide exercise of its statutory powers. The
contention regarding ecological imbalance has been negatived by the learned
Single Judge as being based on an erroneous assumption of facts, observing:
"The
contention of ecological imbalance, in my view, is wholly on an erroneous
assumption of facts. It is not that there will be no Park as such--a Park would
be there, the 991 children's playground would be there and all the other
amenities which a modern Park enjoins would be provided for. The difference
being whereas the existing one is on-the ground level, after the completion of
the project the park will be on an elevated level.
Incidentally,
it is to be recorded that Satya Narayan Park for about a decade is in a
deplorable state and excepting there being some tall trees, there was no
maintenance of the park as a park by the Corporation Authorities.
The
contention that greenery would be lost in the Park cannot also be accepted.
There was not a blade of grass on the Park. The importance of a green spot in a
highly congested area like Burrabazar cannot be disputed but the continuation
of the project would not, in the facts and circumstances of the case and as
appear from record affect such a green spot.
On
the contrary, it would ensure the creation of such a green belt." Agreeing
with the learned Single Judge, a Division Bench (Chittatosh Mookerjee, CJ and
Amarendra Chandra Sen Gupta, J.) dismissed the appeal preferred by the
petitioners.
According
to the learned Judges, there were no allegations of mala fides and there was no
doubt whatever that the Municipal Corporation acted in bona fide exercise of
its statutory powers under the Act to grant the licence of the subsoil of
Satyanarayan Park for the construction of the underground market and therefore
the Court ought not to strike down the action of the Municipal Corporation as
ultra vires under s. 353(2) of the Calcutta Municipal Corporation Act, 1980.
They further held that they were unable to subscribe to the restricted
construction placed on behalf of the petitioners that the expression
'development work' in s.
353(2)
read with the Explanation thereto can only mean development work either
underground or on the surface of the park qua development of the park i.e. for
the development and improvement by way of proper and adequate or better
utilisation of any such park.
In
these petitions, two questions mainly arise, namely:
(1)
Whether the grant of licence by deed of licence dated February 15, 1985 by the
Municipal Corporation in favour of respondent no. 14 Messrs Happy Homes &
Hotels Private Limited of the subsoil of Satyanarayan Park in the Burrabazar
area of the Metropolitan City of 992 Calcutta for implementation of a
development scheme, namely, to build and construct a two-storeyed underground
airconditioned basement market, and to hold the said market for a period of 30
years from the date of execution of the deed on payment of a premium of Rs.30
lakhs and a licence fee of Rs.40,000 per month on condition that the licensee
shall at its own cost relocate and maintain the park on the top of the said market
for augmenting and improving amenities to the citizens which shall always
remain as a public park belonging to the Municipal Corporation, was in breach
of its statutory powers under sub-s. (2) of s. 353 read with the Explanation
thereto of the Calcutta Municipal Corporation Act, 1980. (2) Should the
expression 'development work' in s. 353(2) of the Act read with the Explanation
thereto be construed to mean development work qua the park i.e. such
development work must be confined to the proper and better utilisation of the
park? Shri Shanti Bhushan, learned counsel for the petitioners assails the
action of the Municipal Corporation substantially on two grounds: (1) The
Municipal Corporation has no power to alienate or part with possession of any
public street, park, square or garden or the subsoil thereof for the purpose of
implementation of any development work. The Corporation being a creature of the
statute must function within the four confines of the Act creating it and in
the absence of any provision for the conferral of such a power, it had no
authority to grant a licence of the subsoil of Satyanarayan Park for the
purpose of construction of the underground market. (2) On a true construction
of sub-s.(2) of s. 353 read with Explanation thereto the development work
either underground or on the surface of a public street, park, square or garden
must be for development and improvement by way of proper and adequate or better
utilisation of any such public street, park, square or garden. The learned counsel
placed reliance on the decision in Attorney General v. Corporation of
Sunderland LR, [187576] 2 Ch. D. 634 for the submission that the position of
the Municipal Corporation in regard to public parks, gardens, squares and
streets under the Act was that of a trustee and the Corporation would be guilty
of breach of trust in employing any part thereof for purposes other than those
contemplated by the Act.
In
reply Shri Somnath Chatterjee, learned counsel appearing for respondent no. 14
Messrs Happy Homes & Hotels Private Limited contended that the grant of
licence by the Municipal Corporation of the subsoil of Satyanarayan Park was a
bona fide exercise of its statutory powers and the construction of the
underground market would 993 not destroy its intrinsic character as a park and
there was no warrant, as the High Court has held, to give a restrictive meaning
to the expression 'development work' in s. 353(2) of the Act read with the
Explanation thereto. At the hearing, the learned counsel drew our attention to
the supplementary affidavit filed on behalf of his client dated July 25, 1987
showing that the structural work of the underground market has been completed
and the concrete roof has been laid. All that remains is the laying of a park.
It appears therefrom that the value of the work done so far is Rs.2.30 crores
out of the estimated cost of Rs.4.51 crores and that the underground
airconditioned market is likely to be commissioned within a couple of months.
It also appears that respondent no. 14 has entered into a contract with Joshi
& Associates, Architects for re-development and relaying of Satyanarayan
Park as a terrace' garden. The letter of the Agri-Horticultural Society of
India dated July 24, 1987 gives a detailed scheme for such re-location of the park
as a terrace garden with tall trees. It provides for laying of a spacious lawn
admeasuring about 12,000 square feet .with replantation of fast growing tall
trees and dwarf trees, laying of shrubs etc. The material on record clearly
shows that the intrinsic character of Satyanarayan Park as a public park would
not be destroyed by the construction of the underground market which with its
raised height at 6 feet from the road level is to have a terrace garden with
tail trees all around and it would remain a place of recreation. This dispels
the contention of Shri Shanti Bhushan based on Attorney General v. Corporation
of Sunderland that the construction of the underground market would destroy the
intrinsic character of Satyanarayan Park as a park. Under the scheme there
would be no construction on the park; the underground market would be under the
park and not over the park. The only difference is that the park would be
relocated at a height of 6 feet above the road level easily accessible by three
separate staircases. Under the scheme, Satyanarayan Park would become a real
park with a lush green garden with tall trees, shrubs etc. and a centre for
relaxation of the thickly congested Burrabazar locality and in particular for
the children as a playground. It is significant that the Division Bench has
issued a writ of mandamus commanding the respondents to restore Satyanarayan
Park as a public park as stipulated in the deed of licence dated February 15,
1985 and to maintain it as a public garden.
Shri
Somnath Chatterjee has drawn our attention to the finding of the learned Single
Judge that the development scheme would not create any ecological imbalance. On
the contrary, the implementation of the scheme would ensure the creation of a
green belt. It was conceded before the learned Single Judge that the terrace
garden with 994 green grass would be laid on the upper basement of the
underground market. As regards the apprehension expressed by Shri Shanti
Bhushan that tall trees would disappear from the park, it is enough to say that
the learned Single Judge has in his judgment observed that there is no basis
for this apprehension at all. He records that as a matter of fact, re-plantation
of tall trees has already been effected in terms of the earlier order passed by
the Division Bench under the expert supervision of the Agri-Horticultural
Society of India. Thus, there would be a 'patch of green' in the thickly
congested Burrabazar area which would tend to improve, rather than retard,
ecological balance and there would be a place of recreation for all and in
particular for the children as a playground. In the facts and circumstances of
the case, the High Court was justified in holding that the implementation of
the development scheme would squarely fall within the ambit of sub-s.(2) of s.
353 of the Calcutta Municipal Corporation Act. 1980 and the construction of the
underground market is not intended and meant to destroy the intrinsic character
of Satyanarayan Park as a public park but on the contrary, the scheme is to
re-locate and redevelop the park as a public park as a place for public
recreation. We find no justification whatever to interfere with the judgment of
the High Court.
Before
parting with the case, we wish to mention that we impressed upon Shri Somnath Chatterjee,
learned counsel for respondent no. 14 that the grant of a fully airconditioned
underground market on a premium of Rs.30 lakhs and a rent of Rs.40,000 per
month which was revisable at the end of every 30 years has to be altered. It
was clearly against the public interest to grant the market on a rent of
Rs.40,000 per month having regard to the spiral rise of rents of commercial
premises in all urban areas throughout the country. We directed the parties to
revise the terms and posted the case for further directions on August 12, 1987.
We are happy to record that on that day Shri Chatterjee made a statement that
his client is prepared to revise the terms as to the rate of licence fee. He
filed an affidavit sworn by Ram Niranjan Kajaria, Director, Messrs Happy Homes
& Hotels Private Limited giving an undertaking to the following effect: (L)
Messrs Happy Homes & Hotels Private Limited shall pay licence fee Rs.
75,000 per month which shall be revisable at the end of every three years. (2)
It shall maintain the underground market in proper state of repairs and the
airconditioning plant installed therein in proper workman like condition until
the expiry or determination of the licence. (3) It shall re-locate and
re-develop Satyanarayan Park as a public park at its own expense as provided in
the deed of licence dated 995 February 15, 1985 for which it has entered into a
contract with Agri Horticultural Society of India, Alipore, Calcutta and it
shall maintain properly the said park as a public park throughout the entire
period of 30 years.
Subject
to this modification, the special leave petitions are dismissed without any
order as to costs.
S.L.
Petitions dismissed.
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