(1.) The petitioner resides at premises NO.63/1, Mahanirban Road, which is adjacent to a park belonging to the Corporation of Calcutta, known as the Desapriya Park. On or about the 25th April, 1961 the petitioner noticed that arrangements had begun for constructing a tin enclosure and barriers were put up in a part of the said Park, and on the evenings of the 28th and 29th April, 1961 when the petitioner went to take his usual stroll in the said Park, he was obstructed by two durwans employed by the respondent No.4, which is a society registered under the Societies Registration Act, having its office situated at No.1, Desapriya Park West, Calcutta. What happened was as follows: The said society called "Dakshinee", wanted to celebrate the Tagore centenary, by sponsoring a 'Mela'. For this purpose, the society approached the Corporation authorities in November, 1960 for permission to celebrate the centenary by holding a 'Mela' in a part of the said Park. This application seems to have been dealt with by the Standing Town Planning and Improvement Committee, (hereinafter referred to as the "said standing committee") which had passed a resolution dated 17th January, 1961, a copy of which is annexed to the affidavit-in-opposition affirmed by Suniti Bhusan Das, Acting District Engineer, District IV, of the Corporation of Calcutta, dated 16th May, 1961. This resolution shows that permission was granted to the Convenor, the Dakshinee Rabindra Centenary Committee, to hold a 'variety cultural programme', in connection with the celebration of the birth centenary of Kaviguru Rabindranath, for 7 days, commencing from 8th May, 1961 to 14th May, 1961 subject to certain terms and conditions. One of the terms was that the party should produce a letter of recommendation of the Ward Councillor. Another was that the party should not sell tickets in connection with the cultural function, but if tickets be sold, a payment of Rs.2000/- must be made as fees for occupation. The area of occupation was about three-fourths of the playground on the eastern block. The penultimate condition was that the members of the said Standing Committee should be allowed free access into the pandal. It appears that thereafter, necessary demarcations were made and the occupation charges having been paid, permission to hold the 'mela' was confirmed by a letter dated 25th April, 1961 written by the Officiating District Engineer IV, a copy whereof is annexed to the affidavit-in-opposition filed by Suvo Guha Thakurta, the Honorary General Secretary of "Dakshinee", affirmed on 15th May, 1961. In that letter it was stated that, "permission is hereby granted" but subject to the terms and conditions contained therein. I find that the conditions are not identical with that contained in the resolution of the said Standing Committee. Thereafter, a part of the said Park was enclosed and used by the said society for its exhibitions and variety programmes. Out of 20 bighas which is the total area of the Park, 7 bighas and 11 cottahs were given to this society for the above-mentioned purpose, being a part of the playground. On 23rd March, 1961 on an application made on behalf of the respondent No.4, the Chairman of the said Standing Committee extended the period upto 22nd May, 1961. On the 3rd May, 1961 this rule was issued calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing them to forbear from enclosing the said Park and to remove the obstructions and encroachment and/or why the permission to hold a mela in the said Park should not be cancelled. The matter was expedited as far as possible and the application was heard on the 22nd May, 1961. After that date, of course, the mela has terminated and the encroachments have been removed. All the parties, however, requested me to decide the issues raised in the application, namely as to the right of the Corporation or the Standing Town Planning and Improvement Committee, to allow a portion of a Park to be enclosed and set apart for a 'mela', or a similar purpose, and the rights of the ratepayers of Calcutta in respect thereof. It I stated that this is a frequent occurrence and the legal position should be made clear. For the purpose of determining the legal position, we have to interpret the provisions of the Calcutta Municipal Act, 1951 (Act XXXIII, 1951) (hereinafter referred to as the "Act"). The first thing to be remembered is that the word "Park" is not defined in the Act. Section 5(60) defines the expression "public street", which means any street, road, lane, gully, alley, passage, pathway, square or Court, whether a thoroughfare or not, over which the public have a right of way. It has been contended by Mr. Chakravarti on behalf of the petitioner, that a "Park" in Calcutta is equivalent to the expression "square" as used in the above definition. In my opinion, this interpretation is not acceptable. A 'Park' can not be equated with a "public street". This view has also been expressed by Mukharji, J. in Suhrit Mitra v. Corporation of Calcutta, 0 62 CalWN 186. It also borne out by Section 349 of the said Act. Sub-section (1) of Section 349 provides that all public streets and square in Calcutta shall vest in and belong to the Corporation. This shows that the expression "square" may be used independently. Such an expression may be equated with the word "Square", as used in Section 349. We find in Ballentine's legal dictionary that the word "square" indicates a public user of land, either for the purpose of free passage or to be ornamented and improved for the pleasure and amusement, recreation or health, of the public. Originally, the word "square" did mean a piece of land where various public streets converged. It was more or less like a Spanish 'Plaza'. A 'Park' originally meant such a Plaza, but it is pointed out by Ballentine that the modern park may be defined as a piece of land acquired for the resort of the public for recreation and amusement. I think this is as good a definition of a park as any. Section 351 provides that the Corporation shall, so far as it may consider it necessary to do so for the public convenience, cause such squares to be watered or otherwise treated in a suitable manner. Section 352 lays down that public places shall be maintained, repaired, protected and otherwise regulated, in accordance with the rules contained in Schedule XV. There is no particular rule in the said Schedule appertaining to squares. Section 361 enables the Corporation to lay out new squares and to permanently close any existing "public square". It is here for the first time that the expression "public square" has been used. Section 363 grants power to the Corporation to dispose of a square and lease out the same. In spite of these two sections, an argument is advanced to the effect that a "public square" can be permanently closed but not temporarily. The argument is that, express power has been given to the Corporation to close a public square, that is to say, a park permanently, but there is no power given to close it temporarily. This very point was considered by Mukharji, J., in the case of Suhrit Mitra v. Corporation of Calcutta (1) and the learned Judge held that there was an implied power in the Corporation to close a "public square" temporarily. Wt respect, I agree with this view.
(2.) Next, we come to the additional or residuary powers of the Corporation to acquire or dispose of any area, or to lease out any land or building including a "public square". We are not however concerned with the exercise of such powers in this case. Next, we come to Section 6 of the said Act, which provides that there shall be three municipal authorities charged with the carrying out of the provisions of the Act, namely, the Corporation, the Standing Committees, and the Commissioner. The constitution of Standing Committees is provided for in Section 14, and one of such Standing Committees to be formed is the Town Planning and Improvement Committee. Section 24(1) lays down that, although the Municipal Government of Calcutta vests in the Corporation, it shall not be entitled to exercise or discharge any powers, duties or functions expressly assigned by or under this Act to a Standing Committee or to the Commissioner. Section 26 provides for the powers, duties and functions of Standing Committees. Under it, the Corporation may make rules for the purpose of determining such powers, duties and functions, and in making such rules, the Corporation may direct that the decision of Standing Committees shall, in respect of certain specified matters, be final. Matters which are not so specified are subject to confirmation by the Corporation. Rules have been made under Section 26(1). The relevant rule is that which has been published in the Calcutta Gazette dated 15th November 1953. Under this, the power to make, improve and close streets, squares and gardens etc. under Section 361, has been delegated to the Standing Town Planning and Improvement committee. This is not made 'final', so that, the exercise of such powers is subject to confirmation by the Corporation. Apart power, there does not appear to be any power delegated to the said Committee by which it can close a park or any part of it temporarily or allow the holding of an exhibition or mela thereon. T would be remembered that the under Section 361, the express power given to the Corporation is to close a public square permanently. This power alone is therefore, delegated. The implied power of the Corporation to close a park temporarily or to allow it to be used for public entertainment can not be under Section 361, and there is no delegation of such an implied power to the said Standing Committee. I now come to the power of the Corporation to make bye-laws. Under the 1923 Act, the power was contained in Section 478. Under the 1951 Act the power is contained in Section 527. Under the 1923 Act, bye-laws were made on or about the 10th August 1949. Since they have not been repealed and no new bye-laws have been made under the 1951 Act, these bye-laws still hold the field. The relevant bye-laws are 1 and 2 which run as follows :-
"1) Every square or garden shall remain open to the public unless otherwise notified by the Chief Executive Officer on a board to be placed in some conspicuous part of the entrance of such square or garden. No person other than an officer or servant of the Corporation or the person in charge of such square or garden shall enter or remain in any such square or garden during the time during which the square or garden is so notified not to remain open to the public.
2) On the occasion of any public entertainment, ceremony or exhibition taking place in any square or garden after permission has been obtained from or given by the Chief Executive Officer in that behalf, the square or garden shall be kept open or closed for such period and upon such terms and conditions as may be considered by the Chief Executive Officer expedient and notified by him in the manner mentioned in by-law 1 or in one or more local newspapers."
(3.) It would be observed that these by-laws refer to the "Chief Executive Officer". Under the 1923 Act, the "Chief Executive Officer" was the principal Executive Officer of the Corporation (see Sections 51-52). Under the 1951 Act, the executive power for the purpose of carrying out the provisions of the said Act is vested in the Commissioner (see Section 28). I do not see, therefore, under what power the matter is at all dealt with by the Standing Town Planning and Improvement Committee. I shall presently deal with this aspect of the matter. Before I proceed further, it will be necessary once again to refer to the decision of Mukharji, J., Suhrit Mitra v. The Corporation of Calcutta (1) In that case, the Corporation of Calcutta, through its Standing Town Planning and Improvement Committee, decided to grant permission to the owner of the 'Kamala Circus', to occupy Marcus Square, a public park in the city of Calcutta, for a period of three months, for a consideration of Rs.25,000/-. A ratepayer of the Corporation made an application under Article 226 of the Constitution, challenging this action. In that case, however, the authority of the Standing Town Planning and Improvement Committee was not challenged. The first point taken in that case was that under Section 361 of the said Act, the Corporation was granted the power to close any public street or square etc. permanently but not temporarily. It was held by the learned Judge that although there was no express power provided for effecting a temporary closure, there was an implied power in the Corporation to do so. It was pointed out, that when a public square or garden is allowed to be used for public entertainment, it can not be called a closure at all, and reference was made to by-law 2 mentioned above. It was also held that, permitting the use of a public park for amusement and entertainment of the public, did not bring the matter within the scope of Section 521 of the said Act, as it did not involve the acquisition or disposal of lands or buildings, or the leasing out of the same. So far as Section 361 is concerned, I respectfully agree that it does not preclude the Corporation from having the power of temporary closure. The implied powers of the Corporation to close a park temporarily however, is not derived from Section 361, which confers the express power of closing a park permanently. It follows that the delegation contained in the rules published on the 5th November, 1953 by which the powers, duties and functions of the Corporation under Section 361 of the said Act to close squares, are delegated to the said Standing Committee, does not vest in it the implied power of the Corporation to close a public park temporarily. That power would still reside in the Corporation. Coming to the by-laws framed, we find that an express provision has been made relating to the granting of permission for using a public square and garden for the purpose of any public entertainment, ceremony of exhibition. This permission has to be obtained from the Chief Executive Officer, whose place has now been taken by the Commissioner, under the 1951 Act. In view of this, it appears to me that the procedure adopted in this case was not in accordance with law. The application for the use of a portion of Desapriya Park should have been made to the Commissioner to the Corporation, and the procedure laid down in the by-law Nos.1 and 2 should have been followed. The Standing Committee, had no power to deal with the application, or make any orders thereon, and in any event, the Chairman thereof could in no circumstances extend the time. The position in law can be conveniently summarised as follows:-
1) Public parks in Calcutta, the ownership of which is vested in the Corporation, are not included within the definition of a "public street" as defined in the Calcutta Municipal Act, 1951. But they came within the meaning of the expressions "square" or "public square", as used in Chapter XXI of the said Act.
2) Under Section 361(c), the Corporation has the power to close such a park permanently. It however does not confer power on the Corporation to make a temporary closure. Such a power however may be implied, as an incidence of ownership.
3) A public park may be utilised by the Corporation for the amusement and entertainment of the public. If therefore, a park or a portion thereof is allowed to be utilised for public amusement or entertainment, it does not amount to a closure at all.
4) The power of the Corporation to close squares and gardens permanently, under Section 361, has been delegated to the Standing Town Planning and Improvement Committee, but subject to confirmation by he Corporation. Temporary closure of a park or part thereof or permission for holding an exhibition, mela, or other functions, for public amusement or entertainment therein, can not be dealt with or given by the said Standing Committee. Such a user is technically not a closure at all.
5) On the occasion of any public entertainment, ceremony or exhibition, taking place in any such public park or part thereof, permission should be obtained from the Commissioner to the Corporation, upon such terms and conditions as may be prescribed by him and notified on a board to be placed in some conspicuous part of the entrance of such square and/or by insertion in one or more local newspapers. It follows that the Commissioner can not grant such permission for private purposes. In such matters, bye laws Nos.1 and 2 dated 10th August 1949 should be followed, save and except that the 'Commissioner to the Corporation', should be substituted in the place and stead of the 'Chief Executive Officer'.
6) Under no circumstances can the Chairman of the said Standing Committee grant such permission or extend the period thereof. The District Engineer can not also grant such permission.;