Supreme Court of India
CALCUTTA YOUTH FRONT & ORS.versusSTATE OF WEST BENGAL & ORS.
- Citation
- 1987 INSC 216
- Decided
- 18 August 1987
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
The grant of licence for the underground market and park relocation is within the powers of the Calcutta Municipal Corporation under s.353(2) of the Calcutta Municipal Corporation Act, 1980, as "development work" includes such a scheme and does not constitute an ultra vires act.
Summary
The Calcutta Youth Front and others challenged the Calcutta Municipal Corporation's grant of a 30‑year licence to Happy Homes & Hotels Pvt. Ltd. for the sub‑soil of Satyanarayan Park to construct an underground market and parking facility, arguing that the corporation lacked authority to alienate public park land and that "development work" under s.353(2) of the Calcutta Municipal Corporation Act, 1980 must be confined to improving the park itself. The High Court and the Division Bench dismissed the challenge, holding the licence was a bona‑fide exercise of statutory power. The Supreme Court examined whether the licence was ultra vires and how "development work" should be interpreted, concluding that the scheme, which included relocating and redeveloping the park as a terrace garden, fell within the corporation's powers and did not destroy the park's intrinsic character. While upholding the licence, the Court directed that the licence fee be increased to Rs 75,000 per month, revisable every three years, and ordered the respondent to maintain and redevelop the park at its own expense. The special leave petitions were dismissed subject to these modifications.
Issues considered
- Whether the Calcutta Municipal Corporation had statutory authority under s.353(2) of the Calcutta Municipal Corporation Act, 1980 to grant a licence of the sub‑soil of a public park for an underground market and parking facility.
- Whether the term "development work" in s.353(2) of the Act, read with its Explanation, is limited to development and improvement of the park itself, thereby rendering the licence ultra vires.
Legislation cited
Subjects
municipal corporationlicencesubsoilpublic parkdevelopment workultra viresstatutory interpretationenvironmental impactpublic interestland alienation
Judgment
CALCUTIA YOUTH FRONT & ORS. A
v.
STATE OF WEST BENGAL & ORS.
AUGUST 18, 1987
B
[A.P. SEN AND B.C. RAY, JJ.]
Calcutta Municipal Corporation Act, 1980-Section 353(2)
thereof with Explanation thereto-Validity of grant thereunder of
- licence of sub-soil of Satyanarayan Park, Calcutta for implementation
of development scheme.
c
The petitioners tiled a writ petition in the High Court, challenging
the legality and propriety of the grant of a licence by the Calcutta
I Municipal Corporation of the sub-soil of Satyanarayan Park to respon-
dent No. 14-Messrs. Happy Homes & Hotels Private Limited-for a
period of 30 years for the implementation of a development scheme, D
namely, construction of a two-storeyed air-conditioned under-ground
basement market and parking place. The High Court (Single Judge)
repelled the contentions of the petitioners and dismissed the writ peti-
tion. Against the judgment and order of the Single Judge, the peti-
tioners preferred an appeal before the Division Bench of the High
Court. The Division Bench dismissed the appeal. Aggrieved by the
E
decision of the High Court, the petitioners filed petitions for special
leave before this Court for relief.
Disposing of the petitions, the Court,
HELD: In these petitions, two questions mainly arose, namely, (i) F
whether the grant of licence by the Municipal Corporation in favour of
respondent No. 14, Messrs. Happy Homes and Hotels Pvt. Ltd., of the
sob-soil of Satyanarayan Park for the implementation of' a development
scheme, namely, to hold the said market for 30 years on payment of a
premium of Rs.30 lakhs and a licence fee of Rs.40,000 per month on
Y certain terms and conditions, was in breach of its statutory powers G
under sub-s. (2) of s. 353, read with the Explanation thereto of the
Calcutta Municipal Corporation Act, 1980, and (ii) should the expres-
sion 'development work' in s. 353 (2) of the said 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? [991G-H; 992A-C] H
987
988 SUPREME COURT REPORTS [1987) 3 S.C.R.
~
A Counsel for the petitioners assailed the actiop of the Municipal
Corporation substantially on• two grounds briefly staled as (i) The
Municipal Corporation had no power to alienate or part with possession
of any public street, park, square or garden or the sub-soil thereof for
the purpose of implementation of any development work, eic., and (ii)
On a true construction of sub·s. (2) of s. 353, read with the Explanation ~
B 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 J
such public street, park, etc. [992D·F)
c
Shri Somnath Chatterjee, counsel for respondent No. 14, con-
tended that the grant of licence by the Municipal Corporation of the
sub-soil of Satyanarayan Park was a bona fide exercise of its statutory 'l-
-
powers, and the construction of the underground market would not
destroy its intrinsic character as a park and there was no warrant to
give a restrictive meaning to the expression 'development work' in s.
353(2) of the Act, read with the Explanation thereto. He drew attention
D of the Court to a supplementary affidavit filed by his client, showing )--·
that the structural work of the underground market had been comp-
leted and the concrete roof had been laid, and all that remained was the
laying of a park. It appeared therefrom that the value of the work done
so far was Rs.2.30 crores out of the estimated cost of Rs.4.50 crores,
and the underground air-conditioned market was likely to be commis-
E sioned within a couple of months, and also that the respondent No. 14
had entered into a contract with Joshi & Associates, Architects, for the . "" >
re-development and relaying of the Satyanarayan Park as a terrace
garden; a letter of the Agri·Horticultural Society of India gave a
detailed scheme for such re-location of the park as a terrace garden, 'i
etc. [992H; 993A·CJ
F
The material on record clearly showed that the intrinsic charader
of the Satyanarayan Park as public park would not be destroyed by the
construction of the underground market which with its raised height at
6 feet from the road level was to have a terrace garden. Under the
scheme, there would be no construction on the park; the underground
G market would be under the park and not over the park, and the Y
Satyanarayan Park would become a real park with a lush green garden,
tall trees and shrubs, etc. It was significant that the Division Bench had
issued a writ of mandamus commanding the respondents to restore
Satyanarayan Park as a public part as stipulated in the deed of licence
and to maintain it as a public park. The High Court (Single Judge) gave
H the finding that the development scheme would not create any ecological
CALCUTTA YOUTHFRONTv. STATEOFW. BENGAL 989
~
imbalance, but would ensure tbe creation of a green belt. There A
would thus be a 'patch of green' in the thickly congested Bnrrabazar
area which would tend to improve the ecological balance and provide a
place of recreation for all. [993D·G; 994A·C I
t- justified
In the facts and circumstances of the case, the High Court was
in holding that the implementation of the development scheme B
y would squarely fall within the ambit of sub-s. (2) of s. 353 of the
Calcutta Municipal Corporation Act, 1980 and the construction of the
underground market was not intended and meant to destroy the
intrinsic character of the Satyanarayan Park as a public park; on the
- contrary, the scheme was to re-locate and re-develop the part as a
public park. There was no justification whatever to interfere with the
c
'{ judgment of the High Court. [994C·D)
The Court directed that the grant of a folly air-conditioned
market on a premium of Rs.30 lakhs and a rent of Rs.40,000 per
month, which was revisable at the end of 30 years had to be altered. It
--'( was clearly against the public interest to grant the market on a rent of D
Rs.40,000 per month, having regard to the spiral rise of rents of com·
mercial premises in all urban areas. The Court directed the parties to
revise the terms and posted the case for further directions on August 12,
1987. On that day, Shri Som .Nath Chatterjee filed on affidavit on
behalf of his client, giving an undertaking to the following effect:· (1)
)lo.. M/s. Happy Homes & Hotels Pvt. Ltd. shall pay licence fee @Rs. 75,000 E
-. per month which shall be revisable at the end of the every three years;
(2) It shall maintain the underground market in proper state of affairs
and the air-conditioning plant therein in proper workman-like condition
y until the expiry or determination of the licence; (3) It shall re-locate
' and re-develop Satyanarayan Park as a public park at its own expense
as provided in the deed of licence for which it has entered into a con- F
tract with Agri-Horticnltnral Society of India, and it shall maintain
properly the said park as a public park throughout the entire period of
30 years. [994E-H; 995A)
The Special Leave Petitions were dismissed subject to this
y modification. [995B) G
Attorney General v. Corporation of Sunderland LR- [1875·76) 2
CH. D. 634, referred to.
CIVIL APPELLATE JURISDICTION: Special Leave Peti·
lions (Civil) Nos. 5678-79of1987. H
990 SUPREME COURT REPORTS [1987] 3 S.C.R.
~
A From the Judgment and Order dated l>.4.1987 of the Calcutta
High Court in F.M.A. T. Nos. 225.6 and 1350 of 1986.
S.R. Srivastava for the Petitioners.
Tapas Ray, Somnath Chatterjee, Sushi! Kumar Jain, B.P. Singh -1
B and A. Misra for the Respondents'.
The Order of the Court was delivered by 1
SEN, J. These special leave petitions are directed against a judg-
c
ment and order of a Division Bench of the High Court of Calcutta
dated April 8, 1987 upholding the judgment and order of a learned
-
Single Judge dated July 17, 1986•dismissing the petition filed by the ').-
petitioners under Art. 226 of the c;onstitution. 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 &
D Hotels Private Limited for a period of 30 years for the implementation r
of a development scheme, namely, construction of a two-storeyed air-
conditioned underground basement market and parking place on mani
fold grounds inter alia that the construction of the said underground
market would affect the ecologieal balance because the park was
situate in a densely populated area like Burrabazar in the Metropoli-
E
--
tan 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 sub-
soil 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,
F the learned Single Judge (Umesh <;:handra Banerjee, J.) repelled the
contentions advanced on behalf of the petitioners. 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
y
G fide exercise of its statutory powers. The contention regarding ecologi-
cal 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
H there will.be no Park as.such-a Park would be there, the
CALCUTIA YOUTHFR.ONTv. STATEOFW. BENGAL[SEN,J.I 991
children's playground would be there and all the other A
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 re-
corded that Satya Narayan Park for about a decade is in a
deplorable state and excepting there being some tall trees, B
there was no maintenance of the park as a park by the
Corporation Authorities .
'' •• ..
- The contention that greenery would be lost in the Park C
cannot also be accepted. There was not a blade of grass on
the Park. The importance of a green spot in a highly con-
gested area like Burrabazar 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 D
creation of such a green belt."
Agreeing with the learned Single Judge, a Division Bench (Chittatosh
Mookerjee, CJ and Amarendra Chandra Sen Gupta, J.) dismissed the
appeal preferred by the petitioners. According to the learned Judges,
)L there were no allegations of mala /ides and there was no doubt what- E
ever 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
f 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 F
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
Y, and adequate or better utilisation of any such park. G
In these petitions, two questions mainly arise, namely: (1)
Whether the grant of licence by deed of licence dated February 15,
1985 by the Municipal Corporation in favour of respondent no. 14
Messrs Happy Homes & Hotels Private Limited of the subsoil of
Satyanarayan Park in the Burrabazar area of the Metropolitan City of H
992 SUPREME COURT REPORTS [1987] 3 S.C.R.
-4
Calcutta for implementation of a development scheme, namely, to
A
build and construct a two-storeyed underground airconditioned base-
ment market, and to hold the said market for a period of 30 years from \l:t;
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
B of the said market for augmenting and improving amenities to the
1
citizens which shall always remam as a public park belonging to the
'iI
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 'develop-
ment 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
-
c development work must be confined to the proper and better utilisa- )--
tion of the park?
Shri Shanti Bhushan, learned counsel for the petitioners a~.sails
the action of the Municipal Corporation substantially on two grounds:
D ( 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 wi.thin
the four confines of the Act creating it and in the absence of any
I
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 -~
E
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 1'
proper and adequate or better utilisation of any such public street,
F park, square or garden. The learned counsel placed reliance on the
decision in Attorney General v. Corporation of Sunderland LR, (1875-
76] 2 Ch.D. 634 for the submission that the position of the Municipal
Corporation in regard to public parks, gardens, squares and strnets
under ~he Act was that of a trustee and the Corporation would be
guilty of breach of trust in employing any part thereof for purposes
y
G other than those contemplated by the Act.
In reply Shri Somnath Chatterjee, learned counsel appearing for
respondent no. 14 Messrs Happy Homes & Hotels Private Limited
contended that the grant of licence by the Municipal Corporation of
the subsoil of Satyanarayan Park was a bona fide exercise of its statu-
H tory powers and the construction of the underground market would
993
,... CALCUTTA YOUTHFRONTv. STATEOFW. BENGAL(SEN,J.)
not destroy its intrinsic character as a park and there was no warrant,
A
as the High Court has held, to give a restrictive meaning to the expres-
sion 'development work' ins. 353(2) of the Act read with the Explana-
tion thereto. At the hearing, the learned counsel drew our attention to
the supplementary affidavit filed on behalf of his client dated July 25,
~ 1987 showing that the structural work of the underground market has
I , been completed and the concrete roof has been laid. All that remains B
~
is the laying of a park. It appears therefrom that the value of the work
done so far is Rs.2.30 crores out of the estimated cost of Rs.4.51 crores
and that the underground airconditioned market is likely to be commi§·
sioned within a couple of months. It also appears that respondent
no. 14 has entered into a contract with Joshi & Associates, Architects
for re-development and re-laying of Satyanarayan Park as a terrace
~ garden. The letter of the Agri-Horticultural Society of India dated July c
24, 1987 gives a detailed scheme for such re-location of the park as a
terrace garden with tall trees. It provides for laying of a spacious lawn
admeasuring about 12,000 square feet .with replantation of fast grow-
ing tall trees and dwarf trees, laying of shrubs etc. The material on
'"'<(. record clearly shows that the intrinsic character of Satyanarayan Park D
as a public park would not be destroyed by the construction of the
underground market which with its raised height at 6 feet from the
road level is to have a terrace garden with tall trees all around and it
would remain a place of recreation. This dispels the contention of Shri
Shanti Bhushan based on Attorney General v. Corporation of Sunder-
).._, land that the construction of the underground market would destroy E
the intrinsic character of Satyanarayan Park as a park. Under the
scheme there would be no construction on the park; the underground
market would be under the park and not over the park. The only
r difference is that the park would be re-located at a height of 6 feet
above the road level easily accessible by three separate staircases.
Under the scheme, Satyanarayan Park would become a real park with F
a lush green garden with tall trees, shrubs etc. and a centre for relaxa-
lion of the thickly congested Burrabazar locality and in particular for
the children as a playground. It is significant that the Division Bench
has issued a writ of mandamus commanding the respondents to restore
y Satyanarayan Park as a public park as stipulated in the deed of licence
dated February 15, 1985 and to maintain it as a public garden. , G
Shri Somnath Chatterjee has drawn our attention to the finding
of the learned Single Judge that the development scheme would not
create any ecological imbalance. On the contrary, the implementation
of the scheme would ensure the creation of a green belt. It was con-
ceded before the learned Single Judge that the terrace garden with H
994 SUPREME COURT REPORTS (1987) 3 S.C.R.
green grass would be laid on the upper basement of the underground
A market. As regards the apprehension expressed by Shri Shanti
Bhushan that tall trees would disappear from the park, it is enough to
say that the learned Single Judge has in his judgment observed that
there is no basis for this apprehension at all. He records that as a
matter of fact, replantation of tall trees has already been effected in
B terms of the earlier order passed by the Division Bench under the
expert supervision of the Agri-Horticultural Society of India. Thus,
there would be a 'patch of green' in the thickly congested Burrabazar
\l
area which would tend to improve, rather than retard, ecological
balance and there would be a place of recreation for all and in particu-
lar for the children as a playground. In the facts and circumstances of
the case, the High Court was justified in holding that the implementa-
c tion of the development scheme would squarely fall within the ambit of )
sub-s.(2) of s. 353 of the Calcutta Municipal Corporation Act, 1980
and the construction of the undeqiround market is not intended and
meant to destroy the intrinsic character of Satyanarayan Park as a
public park but on the contrary, the scheme is to re-locate and re-
D deveop the park as a public park as a place for public recreation. We
find no justification whatever to interfere with the judgment of the
High Court.
Before parting with the case, we wish to mention that we impres-
sed upon Shri Somnath Chatterjee, learned counsel for respondent
E no. 14 that the grant of a fully airconditioned underground market on a
premium of Rs.30 lakhs and a rent of Rs.40,000 per month which was
revisable at the end of every 30 years has to be altered. It was clearly
against the public interest to grant the market on a rent of Rs.40,000
per month having regard to the spiral rise of rents of commercial
premises in all urban areas throughout the country. We directed the
F parties to revise the terms and posted the case for further directions
on August 12, 1987. We are happy to record that on that day Shri
Chatterjee made a statement that his client is prepared to-·revise the
terms as to the rate of licence fee. He filed an affidavit sworn by Ram
Niranjan Kajaria, Director, Messrs Happy Homes & Hotels Private
Limited giving an undertaking to the following effect: (I) Messrs
G Happy Homes & Hotels Private Limited shall pay licence fee
@ Rs. 75,000 per month which shall be revisable at the end of every
three years. (2) It shall maintain the underground market in proper
state of repairs and the airconditioning plant installed therein in
proper workman like condition until the expiry or determination of the
licence. (3) It shall re-locate and re-develop Satyanarayan Park as a
H public park at its own expense as provided in the deed of licence dated
CALCUTIA YOUTHFRONTv. STATEOFW.BENGAL[SEN,J.) 995
February 15, 1985 for which it has entered into a contract with Agri- · A
lforticultural Society of India, Alipore, Calcutta and it shall maintain
properly the said park as a public park throughout the entire period of
30 years.
Subject to this modification, the special leave petitions are dis-
missed without any order as to costs.
B
S.L. Petitions dismissed.
•
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "municipal corporation"Sign in to search