- (1.) IN this writ petition the validity of the decision of the corporation of Calcutta to set up what is commonly described as "meena Bazar" in a part of Russel Street in calcutta has been questioned.
(2.) RUSSEL Street is an important public street which is off Park Street. The petitioners who are eight in number have their established business in various premises in Russel Street. The corporation of Calcutta has decided to see apart a portion of Russel Street during particular hours of the day for allowing hawkers to come and occupy the portion which may be allotted to the hawkers for the purpose of selling their goods and articles. The portion of the street which has been set apart and earmarked for this particular purpose has been divided into various cubicles which are to be allotted to hawkers on payment of consideration to the Corporation. The hawkers are expected to come and occupy the respective cubicles allotted to each with their goods in trolley or cart, vend the same during the hours of 4 p. m. and 9 p. m. and then leave the street. A part of the Street has also been left open and kept free for vehicular traffic. The hawkers were to occupy the allotted cubicles in the ear-marked portion of the street during the prescribed hours in the manner prescribed for selling their merchandise and this proposed hawkers market on a potion of the street has been and is described as Meena Bazar. The purpose of setting up of the Meena Bazar the way in which the Meena Bazar is to function and the hours during which the Meena Bazar is to remain open have all been fully stated in paragraph 6 of the affidavit of Bimal krishna Roy, the Deputy Commissioner (Buildings and Properties of the Corporation of Calcutta affirmed on 28th may, 1975, and intended to be used in opposition to the present petition. The main motive of setting up the Meena bazar in Russel Street, it is alleged, is to rehabilitate the hawkers who have been evicted from Chowringhee and other areas of the city and part of the russel Street is considered by the authorities concerned to be suitable for this purpose. The portion which has been set apart for setting up the meena Bazar to be occupied by the hawkers has been shown in a plan annexed to the said affidavit. The said portion which has been set apart has been divided into various cubicles and each cubicles is to be allotted to a particular hawker on terms and conditions imposed by the Corporation of Calcutta and the hawker to whom a particular cubicle is allotted is to bring his or her merchandise in trolley or cart and is to occupy the particular cubicle allotted to him or her during the hours of 4 p. m. to 9 a. m. One of the terms and conditions on the basis of which a hawker will be entitled to occupy any particular cubicle is that the hawker shall not sub let the use of the space or any portion thereof or sublet, assign or otherwise transfer his or her right title or interest of any portion thereof or in the business conducted in that space or admit any partner in the business without special sanction previously obtained from the Commissioner, corporation of Calcutta, in that behalf. This decision of the Corporation to set up what is described as meena Bazar in the public street has been challenged in this writ proceeding by the petitioners.
(3.) MR. Deb, learned counsel appearing on behalf of the petitioners, has contended before me that the Corporation of Calcutta has no power or authority to let out any portion of the public street or to allow any portion of the public street to be used as a bazaar. It is the contention of Mr. Deb that public streets are intended only to be used as public streets and public street cannot be utilised for the setting up of any kind of a Bazaar. Mr. Deb has further contended that the necessary formalities of law for setting up a bazaar have not also been compiled with and it is his contention that without complying with the requirements for the setting up a bazaar, no bazaar can be started by the Corporation. Mr. Deb has argued that the Corporation is the creature of statute and the Corporation roust act within the four corners of the statute. It is the contention of Mr. Deb that the statute does rot authorise the Corporation to set up a bazaar in the public street. Mr. Deb in this connection has drawn my attention to various provisions contained in the statute. Mr. Deb has submitted that there is no provision in the statute which authorises or empowers the Corporation to set up any kind of a bazaar in a public street. Mr. Deb has also relied on the decision of sinha, J. in the case of Biswanath Sinha and Ors. v. Sudhir Kumar Banerjee and ors. 65 C. W. N. 339 and to the decision of Sabyasachi Mukherji, J. in the case of Girija Singh and Am. v. The Corporation of Calcutta and Ors. , 76 C. W. N. 613. Reliance was also placed on the decision in the case of Maniruddin Bepari v. The Chairman of the Municipal commissioners, Dacca, reported in 40 c. W. N. , 17. Mr. Deb has argued byelaw 12, referred to in paragraph 6 (1)of the affidavit of Bimal Krishna Roy does not and cannot authorise the setting up of a Meena Bazar in Russel street and the said bye-law is of no assistance. Mr. Deb has further argued that in the absence of any specific power conferred by the Act, no power can indeed be created or conferred by any bye-law and bye-laws must be consisted with the provisions of the act;