- (1.) On April 1, 1968, the Corporation of Calcutta, which is a municipal authority charged with the carrying out of the provisions of the Calcutta Municipal Act, 1951, issued a public notice in exercise of its power under Section 361 of the Calcutta Municipal Act, 1951. Under the said notification public of Calcutta were informed that by a resolution dated March 22, 1968, the Corporation had decided to close permanently portions of 24 streets mentioned in the aid notification with effect from April 1, 1968. The object of closing down as stated in the said notification is to provide 'Fee parking Area'. On April 17, 1968, the Corporation of Calcutta issued another notice whereby it was notified that an auction for securing the highest bid for grant of sole and exclusive licence, authorizing the licensee the right to allow motor vehicles to be parked within certain areas in Calcutta against fees to be charged and recovered by the licensee at the rates fixed by the Corporation, will be held. The terms and conditions under which the said auction written statement to take place were also stated in the said notification. A draft deed of agreement to be entered with the licensee whose bids would be accepted could also be inspected. It appears that pursuant to the said notification mentioned aforesaid the Commissioner of the Corporation of Calcutta held an auction and accepted bids of certain bidders in respect of certain areas of the city of Calcutta. The 24 public streets mentioned in the first notification were divided in four areas, namely, Dalhousie Square area, New Market area, Park Street area and Gariahat area.
(2.) Sourindra Narayan Sinha and Sukumar Banerjee, for selves and on behalf of all the registered owners and drivers of motor vehicles in the city of Calcutta, filed the present suit against the Corporation and three other defendants who are the persons whose bids have been accepted for the different areas mentioned hereinabove.
(3.) Inasmuch as this was a representative action at the trial of the suit several gentlemen who are residents of the city of Calcutta and who are also said to be owners of motor vehicles joined in this proceedings as the plaintiffs. By an order dated November 21, 1968, they have been so added. It must, therefore, he observed that though some of these persons were present at the initial stages of the hearing of the suit they took no further part in the proceedings. I need say no more about them, and the plaintiffs hereinafter mentioned are the original plaintiffs. The case of the plaintiffs as made out in the plaint, is that under the provisions of Section 76 of the Motor Vehicles Act of 1939 the sole authority for determination of all parking places and halting places, is the State Government or the authority authorized by the State Government. The Municipal Act of 1951, the plaintiffs assert, contain no provisions regarding parking places and the Corporation of Calcutta has no right and authority under the provisions of the Calcutta Municipal Act, 1951, either to close down any parts of the public streets for the purpose of introduction of Fee Parking Area or to enter into the licensing agreements proposed to be done by the notification mentioned hereinbefore. It has been further asserted on behalf of the plaintiff that the aforesaid act of the Corporation is outside the said Act and constitutes a colourable exercise of the powers conferred upon the Corporation by Section 361 of the Calcutta Municipal Act, 1951, and other provisions of the said Act. The plaintiff's contend that the Corporation has no right or authority to realize any fee or tax for parking of cars in the streets of Calcutta and it has been alleged that the Corporation of Calcutta is trying to do indirectly, acts no permitted by the provisions of the Act. It has been stated that under the proposed licensing agreements there is no obligation on the part of the proposed licensees to allow all members of the public without discrimination to park their cars in the proposed parking areas on payment of the requisite fees and, as such, the scheme is violative of Article 14 of the Constitution of India. The acts of the Corporation are, therefore, it is asserted, illegal and void. It has been further stated that the original plaintiffs are residents of Calcutta and owners of motor vehicles and in connection with their normal, official or professional or vocational or social duties and functions and in pursuit of their ordinary avocations of life use and have the right to use public streets closed down by the Corporation. I must mention here that so far as the assertions that the plaintiffs are the owners of motor vehicles and are the residents of Calcutta and use public streets, the Corporation of Calcutta admitted that position at the hearing of the suit. It was, therefore, not necessary for the plaintiffs to call any evidence to prove the said assertions. By an amendment ordered by the Court on December 19, 1968, on an application made by the original plaintiffs, the plaintiffs have further alleged in the plaint that in any event there is no resolution or valid resolution of the Corporation for closing down any part the said streets. It has been further alleged that the said resolution of March 22, 1968, is void and with jurisdiction.;