- (1.) The case of the writ petitioner, in short, is that originally he was allotted Stall No. D(N)-13/1 covering about 4 sq. ft, of area in S.S.Hogg Market of the Calcutta Municipal Corporation. On representation the area was extended to 8 sq. ft., making the total of 12 sq. ft., and subsequently on further representation the remaining 47.69 sq. ft. of Stall No. D(N)-13 was allotted to the petitioner which included the entire Stall Nos. D(N)-13 1 and D(N)-12 making a total area of 59.69 sq. ft. in two Stalls and the petitioner was allowed to carry on his business there. In or about December, 1985 a devastating fire occurred in the said S.S.Hogg Market destroying greater part of Block D where your petitioner was carrying on his business. In January, 1986 the respondents published in the Calcutta Municipal Gazette their decision of rehabilitation of the owners of the Stalls which is produced in paragraph 4 of the petition. Pursuant to the said decision the petitioner was allotted two separate stalls being Nos. 10 and 61 under Shed No. 3 at the Temporary New Market in the Maidan and this allotment was in favour of the petitioner by reason of his occupation, possession and enjoyment of the destroyed Stalls Nos. D(N)/13/1 and 13. It is contended by the petitioner that after the construction of the New Complex of the S.S.Hogg Market, the petitioner is entitled to the stalls being Nos. D(N)-13/1 and 13 covering in total 59.69 sq. ft. against Stall No. D(N)-13, namely, 12 sq. ft. against Stall No. D(N)-13/1 and 47.69 sq. ft. against Stall No. D(N)-13. It is stressed by the petitioner that on this basis the two temporary stalls were allotted in the Maidan.
(2.) The Annexure 'A' to the writ petition is a communication dated 10th May, 1986 to the petitioner by the Superintendent of the S.S.Hogg Market regarding allotment of his space of D(N)-13 covering 47.69 sq. ft. It is stated in the said communication that the Member, Mayor-in-Council, as per his orders dated 7th May, 1986 and 10th May, 1986 has been pleased to pass the following orders:- ".... I would suggest that the remaining area of Stall No. D(N)-13 measuring 47.69 sq. ft. (curtailing 8 sq. ft. from the original area of Stall No. D(N)-13 as the said area of 8 sq. ft. has already been allotted to D(N)-13/1 as back extension by Dy. Commissioner (M) on 3-6-81) as per opinion of Asstt. Engineer (Civil) on 7-5-86 be allotted to the R. O. of Stall No. D(N)-13/1, S.S.Hogg Market subject to payment of charges as per, new schedule and policy decision." The Superintendent "in terms of the said orders of M.I.C." requested the petitioner to deposit in suspense account a sum of Rupees 29,145.87 without any prejudice and interest to the Corporation at an early date in order to enable this department to take further action in this matter. On that very date i.e. 10th May, 1986 the petitioner deposited a sum of Rupees 29,034,49 under receipt No. 2801 which is enclosed with the writ petition. The balance of unpaid amount was also deposited with the Corporation on that very date as per Receipt No. 2803. Thereafter, the petitioner received as bolt from the blue a letter dated 16th February, 1990 from the Superintendent of the said S.S.Hogg Market which is quoted as follows:- "With reference to this office letter No. H.M. 38 dt. 10-5-86 this is to inform you that HOn'ble Mayor, Calcutta Municipal Corporation as per his order dt. 15-2-90 has been pleased to cancel the allotment of Stall No. D(N)-13 covering an area of 47.69 sq. ft. at S.S. Hogg Market and refund the money deposited by you in this regard in suspense account without any prejudice in suppression of earlier order of the authority in this regard. Hence you are hereby requested to receive back the money deposited in this connection after observing all procedure in this regard." This order of the Mayor dated 15th February, 1990 is under challenge.
(3.) Mr. Chakraborty, the learned Counsel appearing for the petitioner, submitted that the Member, Mayor-in-Council, passed the order in favour of the petitioner which was communicated to him on 10th May, 1986 stating that an area measuring 47.69 sq. ft. has been allotted to the petitioner from Stall No. D(N)-13 and he was directed to pay the amount which he immediately complied. After about four years all of a sudden the Mayor by his order of 15th February, 1990 has cancelled the order of the Mayor-in-Council at the back of the petitioner without giving any opportunity of hearing and without assigning any reason whatsoever. It does not appear from the impugned letter of 16th February, 1990 as to on what basis the Mayor has taken this uncalled for decision in suppression of the earlier order of "the authority" i.e. the Mayor-in-Council. Mr. Chakraborty also questioned the power of the Mayor to cancel any order of the Member. Mayor-in-Council, in his individual capacity. He referred to Sections 8, 33 and 34 of the Calcutta Municipal Corporation Act, 1980 which deal with the Constitution of the Mayor-in-Council, Executive power of the Corporation to be exercised by Mayor-in-Council and the General powers of they Mayor, respectively. He also referred as well to Regulation 4(2) of the Calcutta Municipal Corporation (Transaction of Business of the Mayor-in-Council) Regulations, 1986. Mr. Chakraborty submitted that no where the Mayor has any authority to unilaterally act and cancel the decision of the Mayor-in-Council. Such act of the Mayor is bad, illegal and arbitrary and must be struck down.;