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PETITIONER: CALCUTTA YOUTH FRONT & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT18/08/1987

BENCH: SEN, A.P. (J) BENCH: 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  sub- soil  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,  name- ly,  construction of a two-storeyed  air-conditioned  under- ground  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  deci- sion 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  con- strued  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

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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  gar- den,  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  Corpo- ration 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 therefrom 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  ter- race 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 Satyanaray- an  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  con- gested  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  Corpora- tion  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-condi- tioned  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

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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  commer- cial  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  re- locate 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.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Special  Leave  Petitions (Civil) Nos. 5678-79 of 1987. 990     From  the Judgment and Order dated 8.4.1987 of the  Cal- cutta 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  petition- ers  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,  name- ly,  construction  of a two-storeyed  airconditioned  under- ground  basement  market  and parking  place  on  mani  fold grounds inter alia that the construction of the said  under- ground  market would affect the ecological  balance  because the park was situate in a densely populated area like Burra- bazar  in the Metropolitan City of Calcutta, that  the  con- struction  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  develop- ment 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  under-

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ground 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 statu- tory  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  en-               joins  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  de-               plorable 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  impor-               tance  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  sub- scribe  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 Limit- ed  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  aircondi- tioned  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

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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 substantial- ly  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  improve- ment 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  Corpora- tion 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  ap- pearing  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  restric- tive  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 under- ground  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  re- laying 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

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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 recrea- tion.  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  re- located  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 relaxa- tion  of  the thickly congested Burrabazar locality  and  in particular for the children as a playground. It is  signifi- cant  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, replantation  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 redevel- op  the park as a public park as a place for public  recrea- tion.  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  coun- try. 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

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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  Satyana- rayan  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  AgriHorticultural 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  peti- tions are dismissed without any order as to costs. S.L.                                         Petitions  dis- missed. 996