- (1.) 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 (reported in 1987 (1) Cal LJ 288) upholding the judgment and order of a learned single Judge dated July, 17, 1986 (reported in 1986 (2) Cal LJ 26) 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 and 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 the manifold 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 petitioner. 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 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 Barrabazar 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, C. J. 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.
(2.) In these petitions, two questions mainly arise, namely : (1) Whether the grant of licence by deed of licence dated Feb. 15, 1985 by the Municipal Corporation in favour of respondent No. 14 Messrs Happy Home and Hotels Private Limited of the subsoil of Satyanarana Park in the Burrabazar area of the Metropolitan City of Calcutta for implemention 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
(3.) 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, (1875-76) 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.;