Calcutta Youth Front v. STATE OF WEST BENGAL — 1987 DIGILAW 109 (CAL)

JUDGMENT 1. THE principal point in these two appeals is the validity, legality and propriety of a proposal to construct an underground-market at the Satya Narayan Park situated at Kalakar street, Calcutta, which has been vested in the Calcutta Municipal corporation. By his judgment and order dated 6th July, 1986 the Hon'ble justice Umesh Chandra Banerjee had dismissed a writ application which was moved by the Calcutta Youth Front and others on 9th April, 1985. During the pendency of the said writ application in the trial court, the Calcutta Municipal Corporation (Amendment) Act, I985 came into effect from 19th August, 1985. By section 3 of the said amendment Act of 1985, the Original Section 353 of the Calcutta municipal Act of 1980 (W. B. Act 59 of 1980) was retrospectively substituted. Another writ petition was filed challenging the proposal for construction of an underground market at Satya Narayan Park, inter alia, on the ground that the same was not in accordance with the said substituted section 353 of the Calcutta Municipal Corporation act, 1980 (in short, the Corporation Act. 2. IN the year, 1939/40, the Calcutta Improvement Trust (the 'trust in short) had undertaken the scheme - XLII, inter alia, for effecting development of the Kalakar Street in Burrabazar area and under the said Scheme had acquired several premises. After demolishing several old structures the Trust had laid a public park now known as the Satya narayan Park having approximately an area of 20 thousand sq. feet. The Calcutta Improvement Trust had made over the said park to the calcutta Corporation now known as Calcutta Municipal Corporation (the Corporation in short) for the purpose of maintenance at its own cost. The park is now vested in the Calcutta Municipal Corporation. It is not very much disputed before us that the Satya Narayan park is situated in an area which has one of the highest density of population and that the public streets and pavements in the said area are very much congested. It is also a matter of common knowledge that even before the proposal was. It is not very much disputed before us that the Satya Narayan park is situated in an area which has one of the highest density of population and that the public streets and pavements in the said area are very much congested. It is also a matter of common knowledge that even before the proposal was. made for the development of an underground market in the subsoil of Satya Narayan Patk, the said park, to say the least, was in a very' unsatisfactory and undesirable state, a number of old trees, however, still existed and even if there was not a blade of grass, the area of the park at least provided some open space for the residents of the Burrabazar area. 3. FROM the records of the Calcutta Municipal Corporation, produced before the Learned Trial Judge, it appeared that some time in November/december, 1983, a proposal for the construction of underground basement in the North Calcutta Parks was first mooted by an undated and unsigned letter kept with the records. It was, inter- alia, stated in the said letter that the City was facing acute traffic congestion in the roads which was aggravated by the manner of car parkin". Unemployment among the educated youth deserved in mediate attention. existing parks were not being properly maintained and respectable citizens were afraid of entering into the parks. It was proposed that the height of the parks be raised by about 5/6 feet from the road level so that their underground basements could be utilised for car parking- cum- shopping complex. Entire finance could be arranged by granting leases. The letter further suggested that to start with the said Satya Narayan Park might 'be taken up for executing the said works. The Minister -in -charge, local Self- Government and Urban Development, had thereupon directed the then Chief Engineer, Calcutta municipal Corporation to have discussion with Mr. Kajaria and then report. In December, 1983 the said Minister- in- charge made a public announcement about the proposal to construct an underground market at Satya Narayan Park and the same was published in a Calcutta- daily newspaper. 4. Kajaria and then report. In December, 1983 the said Minister- in- charge made a public announcement about the proposal to construct an underground market at Satya Narayan Park and the same was published in a Calcutta- daily newspaper. 4. ON 27th December, 1983 two officers of the Calcutta Municipal corporation put up a notice before the then Administrator of the corporation, inter -alia, stating that the Minister- in -charge, local Self Government and Urban Development has suggested that an underground market might be built up at the Satya Narayan Park and that the matter had been discussed by them with the Commissioner, the Chief road Engineer and the Special Deputy Commsioner (E. After further discussion in January, 1984 the Project Manager, Market Complex and the Chief Road Inspector, Calcutta Municipal Corporation had initiated a formal proposal to construct the said underground market. The Administrator, Calcutta Municipal Corporation formed a Committee consisting of several officers of the Corporation. The said Committee held several meetings for discussing the matter. Draft notices and terms and conditions for the construction of the proposed underground market were considered by the said committee which were recommended to the Administrator for according approval. On 24th February, 1984 the Administrator approved the draft notice etc. On 27th February, 1984 the Calcutta Municipal Corporation published news paper advertisement inviting tenders for the construction of an underground market at Satya Narayan Park. In the meantime, the Administrator had accepted the recommendations of the said committee consisting of senior officers of Municipal Corporation regarding the detailed terms and conditions for inviting offers. M/s. Happy Homes and Hotels (Pvt) Ltd. and three others had applied for issuing necessary documents for submissions of offers. The said Committee recommended for issuing documents to two of the applicants including M/s. Happy Homes and Hotels Pvt. Ltd. for submitting the offers. On 20th March, 1984 the then Administrator, calcutta Municipal Corporation approved the said recommendation with a slight modification. The said parties had submitted their offers in two parts one containing the technical feasibility aspect of the project and the other containing the financial aspect of the said project. 5. THE Part- I of the two offers, namely, the technical feasibility aspect, were placed before the said Committee for processing. The said Committee had recommended that the offer of M/s. Happy Homes and Hotels (Pvt.) Ltd. with regard to the technical feasibility aspect be accepted. 5. THE Part- I of the two offers, namely, the technical feasibility aspect, were placed before the said Committee for processing. The said Committee had recommended that the offer of M/s. Happy Homes and Hotels (Pvt.) Ltd. with regard to the technical feasibility aspect be accepted. in January, 1984 the Municipal Commissioner also considered the Part- II of the offer of M\s. Happy Homes and Hotels (Pvt.)containing the financial aspect of the project and decided that the party should be asked to raise the financial offer through negotiation. After discussion between the representatives of the said company and the committee of the senior officers of the Calcutta Municipal corporation, as the Company's representatives agreed to increase its offer from Rs. 23,51,000/- to Rs. 30,00,000/- and to pay increased monthly rent from Rs. 35,000/- to Rs. 40,000/-, the Committee recommended acceptance of the said financial offer. On 2ist, July, 1984 the then Administrator approved the' said recommendation of the Committee with regard to the modified financial offer. On 1st August, 1984 the proposal for the construction of the proposed underground market at the Satya Narayan Park was signed and on 27th August, 1984 by a letter the Calcutta Municipal Corporation conveyed acceptance of the revised offer of M/s. Happy Homes and Hotels Pvt. Ltd. The said company by their letter dated August, 30,. 1984 accepted the said terms and conditions contained in the Corporation's letter dated 27th August, 1984. On 6th February, 1985, M/s. Happy Homes and Hotels (Pvt.) Ltd. Paid Rs. 30. 00,000/- to the Corporation and on 15th February, 1985, a deed was executed by the Corporation in favour of M/s. Happy Homes and Hotels (Pvt.) Ltd. inter- alia, allowing the company to construct the underground market at the Satyanarayan park and to retain the same for 3d years and to realise rents, fees, etc. 6. ON 22nd February, 1985 the Calcutta Municipal Corporation issued a notice to the effect that the Satya Narayan Park would remain closed from 22nd March, 1985. Shortly thereafter the construction works started at the said park. On 9th April, 1985 Calcutta Youth front and others moved a writ petition challenging the validity of the said proposed construction of underground market at the Satya narayan Park. On 24th April, 1985 another writ petition was filed challenging the same. Shortly thereafter the construction works started at the said park. On 9th April, 1985 Calcutta Youth front and others moved a writ petition challenging the validity of the said proposed construction of underground market at the Satya narayan Park. On 24th April, 1985 another writ petition was filed challenging the same. The Learned Trial Judge having refused to vacate the interim orders, the Calcutta Municipal Corporation preferred appeals which were allowed and interim orders were vacated. The writ petitioners filed special leave petitions in the Supreme Court. The supreme Court did not grant interim orders as prayed for but had requested the appropriate Bench of this Court to expeditiously hear the matters. As already stated, in the meantime the Calcutta Municipal corporation (Amendment) Act, 1981) was enacted retrospectively substituting section 353 of the Calcutta Municipal Corporation Act, 1980. The learned trial judge having dismissed the writ petitions, these appeals had been filed. The appellants have challenged the constructions of the said underground market and the said [parking space in the subsoil of the satya Narayan Park and also the grant of a licence in favour of M/s. Happy Homes and Hotels (Pvt.) Ltd. broadly on two grounds. In the first place, according to the appellants, there had been contravention of the provisions of the Calcutta Municipal Corporation Act, 1980 by allowing the subsoil of the part to be converted into an underground market. The impugned acts of the Corporation were in violation of the provisions of the Calcutta Municipal' Corporation Act, 1980 relating to markets belonging to the said Corporation. The second broad ground of challenge is that the impugned acts are ultra vires. They were beyond the powers of the Corporation. The said impugned acts were also in violation of Article 14 of the Constitution of India because the same were unreasonable, arbitrary and not in the public interest. 7. BY relying upon the different provisions of the Calcutta Municipal corporation Act, 1980, Mr. Pal, learned Advocate on behalf of the appellants, had submitted that the Calcutta Municipal Corporation act has no power to alienate or to part with possession of parks on their subsoils. Relying upon the decision of R. C. Mitter, 3. in the case of Maniruddin Bepari v. Chairman of Municipal Commissioners, dacca, 40 C. W. N. 17, Mr. Pal, learned Advocate on behalf of the appellants, had submitted that the Calcutta Municipal Corporation act has no power to alienate or to part with possession of parks on their subsoils. Relying upon the decision of R. C. Mitter, 3. in the case of Maniruddin Bepari v. Chairman of Municipal Commissioners, dacca, 40 C. W. N. 17, Mr. Pal submitted that a statutory corporation has no power to do anything unless such power has been conferred upon it by the statute creating it. He also relied upon the observations of Sabyasachi Mukherji, J. (as he then was) in the case of Girija Singh and Ors. v. Corporation of Calcutta, 76 C. W. N. 613 in support of his contention that the Corporation has the right of ownership only for the limited purpose of discharging the different functions given to it by the provisions of the Calcutta Municipal Corporation Act. 8. THESE propositions are unexceptionable. Undoubtedly, the Calcutta municipal Corporation on which is a Corporation sole having been created by the statute has no unlimited power of disposal of the properties vested in it. Therefore, the (impugned action of constructing an underground market below the Satya Narayan Park and the grant of the licence thereof in favour of M/s. Happy Homes and Hotes (Pvt.)Ltd. must be justified upon the provisions of the Calcutta Municipal corporation Act. It is now equally settled that the Corporation is the legal owner of properties including streets, parks, etc., vested in the by statute. The statute has imposed upon the Calcutta Municipal corporation various statutory functions, duties and obligations and therefore, unlike a private owner, the Corporation's ownership over its properties is subject to its obligations to perform its statutory duties and functions and the Corporation can neither itself nor authorise anybody else to do anything in relation to the properties vested in it by the statute in derogation of its statutory duties and obligations. We respectfully agree with the following observations of S. P. Mitra, c. J. and Salil Kumar Dutta, J. in the case of Shree Madhusudan Mills ltd. v. Corporation of Calcutta, A. l. R. 1976 Cal. 133 (135) :- " In other words, the Corporation must not use a public Street in such a way as to be destructive of the Act, of being in derogation of the unobstructed right of the public to use public streets or passing and re-passing. v. Corporation of Calcutta, A. l. R. 1976 Cal. 133 (135) :- " In other words, the Corporation must not use a public Street in such a way as to be destructive of the Act, of being in derogation of the unobstructed right of the public to use public streets or passing and re-passing. Subject to these limitations, the Corporation can exercise all the powers of an ordinary owner. . . " The Division Bench in the case of Shree Madhusudan Mills Ltd. v. Corporation of Calcutta (supra), quoted with approval the observations of P. B. Mukherjee J. (as he then was) in the case of Surhid mitra v. Corporation of Calcutta and Ors., 62 C. W. N. 186, that normal incidents of ownership should be given to the Corporation unless the stature expressly creates any inroad upon them or provide for any restriction. In the case of Attorney-General v. Corporation of Sunder land, 2, Law Reports, CD. (1875-76) 6. 34, the position of a Municipal corporation in relation to public gardens under section 74 of the Public health Act, 1848 was placed slightly in a different way. The Court of Appeal observed that in relation to public gardens the Corporation was in the position of a trustee and the Corporation would be guilty of breach of trust in employing any pert of a park for purposes other than those contemplated by section 74 of the Act. The court upheld the trial court's decision prohibiting construction of a town building or any other building which was not incidental to the maintenance or use of the park as public walks or pleasure - ground. But erection of a public library was held to be covered. Keeping in above legal principles in view, we proceed to consider the legality of the impugned acts of the Calcutta Municipal Corporation in relation to the Satya Narayan Park. At this stage, it is necessary to clarify one question of fact. The avowed object of the Calcutta municipal Corporation is to construct an underground market below the surface of Satya Narayan Park and not to permanently close the park. At this stage, it is necessary to clarify one question of fact. The avowed object of the Calcutta municipal Corporation is to construct an underground market below the surface of Satya Narayan Park and not to permanently close the park. The park was temporarily closed for construction of the said proposed underground market and the parking space in its subsoil and the Calcutta Municipal Corporation Authorities have all along proclaimed that upon completion of the proposed construction, the public park shall be restored at an elevated height of about 6 ft. (?) Therefore, what we have to decide is not whether the park itself may be permanently closed for construction of the proposed market but whether such a market could be erected in the subsoil of a public park and the said park might be restored, its ground level being suitably raised which would be at a level higher than its surrounding area. 9. WE have already stated that the Calcutta Municipal Corporation (Amendment) Act, 1985 has deleted the previous section 353 of the 1980 Act and in its place inserted the new section 353 in the Calcutta Municipal corporation Act, 1980- Under sub-section (l) of the newly substituted section 353 the Municipal Commissioner may, inter- alia, with the previous sanction of the Mayor- in- Council and subject to the approval of the State Government permanently or temporarily close the whole or any part of any a public street, park square or garden in the public interest or for the purpose of carrying on the functions under the provisions of the Calcutta Municipal Corporation Act. Under the proviso to sub-section (J) of section 353 the Municipal Commissioner is required to give public notices of such intended closed 10. UNDER sub-section (2) of section 353 of the Calcutta Municipal Corporation Act, 1980, power has been conferred upon the Municipal Commissioner to deal with, settle or transfer by lease or license any public park, street, square or garden or any part thereof or the subsoil there under for the purpose of carrying out any development work-in the said public street, park square or garden. The exercise of such power, however, must be with the prior approvals of the Mayor- in- Council and the State Government. A public notice is required to be given specifying the date from which the closure would be effective for such development works. The exercise of such power, however, must be with the prior approvals of the Mayor- in- Council and the State Government. A public notice is required to be given specifying the date from which the closure would be effective for such development works. We need not consider at length the submission of Mr. Pal appearing on behalf of the appellants, that the development work contemplated by section 353 (2) of the said Act must be confined to only works for developing a street or a part qua park respectively. In view of the interpretation of the expression 'development work' given in the Explanation to sub-section (2) of section 353 of the Act, we are unable to give such a restricted meaning. According to the said Explanation, development work shall include all works of development and improvement by way of proper and adequate or better utilisation either underground or the surface of a public street, park, square or garden. This inclusive definition of the expression "development work' is wide enough to include every kind of work for development and improvement carried on in the subsoil or on the surface of a public street, park, square or garden. In case the Municipal Authorities bona-fide and in conformity with' the other provisions of the Calcutta Municipal Corporation Act decide to utilise the under-ground of a park by developing the same into a market and the parking space the court cannot strike down the said development works as ultra vires section 353 (2) of the Calcutta Municipal Corporation Act, ' 980 Undoubtedly, if by invoking its powers" under section 3 53 (2) of the Act, the Corporation purports to carry out the development works in the underground of a park in violation of its obligations imposed on it by other provisions of the Calcutta Municipal Corporation Act, 1980, then the Court may interfere to compel the Corporation to fulfill such obligations imposed, if any upon the Corporation before it could carry out any development work in a street, park, square or garden or any part thereof. For the foregoing reasons, we are unable to subscribe to the view that the expression "development work" in section 353 (2) of the said Act of 1980 is limited only to development work quo park. Mr. For the foregoing reasons, we are unable to subscribe to the view that the expression "development work" in section 353 (2) of the said Act of 1980 is limited only to development work quo park. Mr. Pal submitted that the use of the expression "proper" in the Explanation to section 353 (2) of the said Act indicated that the development works must be confined to the proper and better utilisation of the park. We are unable to accept such a restricted construction of section 353 (2) read with the explanation there under. We have already mentioned that the said explanation gives an inclusive definition of the expression "development work". Further the use of the word "all works" indicated that every work of development and improvement would be covered by the expression "development work". It is difficult to imagine how the underground of a public park can be utilised qua park. There is no warrant for the view that "development work" are limited only to works developing a park as a park and/or nothing else. By enacting section 353 of the Calcutta Municipal corporation (Amendment) Act, 1985, the legislature clearly intended to include in the expression "development work" other manners of utilisation. Therefore this Court cannon strike down any bona-fide decision by the appropriate municipal authorities to develop the underground of a public park into a market. In the case of Sevenoaks, Maidstone and Tunbridge Railway co. v. London, Chatham and Dover Railway Co. Law Report (1879)11 Chancery Division 625, Jessol M. R. had interpreted the words "maintain" and "work" by inter -alia, observing that works of maintenance included useful, reasonable amelioration and not merely keeping up in precisely the same way and the mode in which the works were executed. One could maintain by keeping up the same stage or by keeping in the same state and improving the state, always bearing in mind that it must be maintained as a distinction for alteration of purpose. This reported decision does not really support the case of the appellants that the underground of a public park cannot be developed into an underground market. At present the subsoil or the underground develop the said underground area without permanently closing the park in the surface. This reported decision does not really support the case of the appellants that the underground of a public park cannot be developed into an underground market. At present the subsoil or the underground develop the said underground area without permanently closing the park in the surface. After the construction of the proposed market is completed, the Corporation and the licensee have bound themselves to restore and improve and maintain the said park at a raised level 11. IN view of the express provision contained in the substituted section 353 of the Calcutta Municipal Corporation Act, it is unnecessary to deal at length with the appellant's submissions that the construction of a market in the underground of the park in question and granting a municipal licence in respect of the same do not come within the expression "disposal of property" Under sub-section (2) of section 353 of the said Act, power expressly has been conferred 'to deal with, settle or transfer any public park, street, square or garden or part thereof or the subsoil there under for the purpose of carrying out the development work therein. The expression "disposal" generally has a wide connotation and include different manners or modes of disposal or ownership of any propriety, interest or right to persons with property. Therefore, it would not be correct to hold that Municipal corporation under section 353 of the Calcutta Municipal Corporation act, 1980 may sell or grant lease of any municipal property but cannot grant licence in respect of the same. It would be inconsistent to urge that the Municipal Corporation may lawfully transfer ownership or interest by way of right of enjoyment of the properties vested in it but it would not possess the lesser right to grant licence while retaining its propriety, interest or rights in its properties. Mr. Pal submitted that the general power of disposal under section 539 of the Calcutta municipal Act, 1980 has no application to the grant of a licence in respect of an underground park in the subsoil of a park. He further submitted that the enactment of the substituted section 353 of the said Act was an implied recognition that power to grant licence of the subsoil of a public park is not located in section 539 of the Act. He further submitted that the enactment of the substituted section 353 of the said Act was an implied recognition that power to grant licence of the subsoil of a public park is not located in section 539 of the Act. As already stated, even in case it is held that the Municipal Corporation derives its power to dispose of the underground soil of its park not from section 539 of the Calcutta Municipal Corporation Act but from section 353 of the Act, the writ petition would fail. 12. M. Pal next submitted that the proposed construction of the under ground market is a commercial project within the meaning of chapter - XXXIV of the Calcutta Municipal Corporation Act, 1980. According to Mr. Pal, neither section 539 nor section 353 of the Act apply in case of commercial project undertaken in the underground of a public park. Mr. Chatterjee, who has appeared on behalf of M/s. Happy Homes and Hotels Pvt. Ltd. which is one of the respondents in the instant appeal, has rightly objected to the consideration of this point regarding applicability of Chapter XXXIV of the said Act to the instant case in the absence of any plea being taken in the writ petition or for consideration of the same in the trial court. Since lengthy submissions have been made on the point, we may briefly deal with the same. In the first place, a harmonious construction of section 353, 539 and 541 of the Calcutta Municipal Corporation Act 1980 is possible and there is no reason to hold that section 541 of the Act overrides the provisions contained in sections 353 and 539 of the said Act. In any view, the petitioners have neither alleged nor proved that by undertaking development works in the subsoil of Satya narayan Park the Corporation had in any way committed any breach of the provisions of Chapter - XXXIV of the said Act. Section 542 mentions the matters which may be provided in a scheme for a commercial project. The same is also subject to the provisions of the west Bengal Town and Country (Planning and Development) Act, 1979. The Corporation authorities have fully established that the sanction under Section 46 of the said Act of 1979 had been obtained. Another submission of Mr. The same is also subject to the provisions of the west Bengal Town and Country (Planning and Development) Act, 1979. The Corporation authorities have fully established that the sanction under Section 46 of the said Act of 1979 had been obtained. Another submission of Mr. Pal appearing for the appellants was that assuming section 3 53 of the Calcutta Municipal Corporation act, 1980 conferred power upon the Municipal Corporation to develop the underground of a public park into a market, the conditions mentioned in the said provisions of the section have not been fulfilled in the instant case. The Municipal Commissioner his self did not decide the matter. A committee of six officers appointed by the then Administrator made recommendations upon which tenders were invited which were again considered by the Committee. Ultimately, it was the Minister concerned and the then Administrator who made the decision. Relying upon the decisions in the case of Commissioner of Police v. Gordhandas Bhanji AIR 1932 SC 16, State of Punjab and Anr. v. Hari kishan Sharma AIR 1966 SC. 1081 and the Purtabpur Company Ltd. v. Cane Commissioner of Bihar AIR 1970 SC 1896 , Mr. Pal contended that the Commissioner who is vested with the power under section 353 of the Calcutta Municipal Act did not exercise his independent judgment. He could not have shared the decision making with the others. Both Mr. Chatterjee and Mr. Roy, who appeared on behalf of the two sets of respondents, have urged that in their writ petitions, those points were not taken by the appellant and that the appellants have not established the necessary facts for substantiating the above point. Under Section 353 of the Calcutta Municipal Corporation Act, the Commissioner is bound to act in public interest and to consider the convenience, safety and welfare of the public at large. His decision making power involved also technical feasibility and financial implications etc. Therefore, no objection could be taken to constitution of a Committee of high officials of the Corporation to examine these aspects and for rendering advice in the matter. The same did not mean that the Corporation had abdicated its own discretion and power's. Mr. Chatterjee has also correctly pointed out that at the relevant time the Calcutta Municipal Corporation was under supersession and he then Administrator was vested with all the powers of the Mayor-in-council and Commissioner. The same did not mean that the Corporation had abdicated its own discretion and power's. Mr. Chatterjee has also correctly pointed out that at the relevant time the Calcutta Municipal Corporation was under supersession and he then Administrator was vested with all the powers of the Mayor-in-council and Commissioner. The Commissioner under section 353 of the Calcutta Municipal Act was to exercise the powers on behalf of the Municipal Corporation. Therefore, no objection could be taken to the order passed by the then Administrator who was clothed with the powers of the Municipal Corporation. The Minister -concerned himself did not pass any order for granting the licence in favour of M/s- Happy homes and Hotels Pvt. Ltd. The Corporation Authorities did not Act in secret but caused publication of newspaper - advertisement inviting open tenders and after recording reasons had accepted after the said company. 13. MR. Pal next submitted that the Municipal Corporation Authorities develop the underground of the park into a municipal hey have complied with the provisions of sections 42b, 432 of that Calcutta Municipal Corporation Act, Mr. Pal has drawn our attention to the interpretation of the expression "municipal market" in clause. 54 of the definition section 2 of the Calcutta municipal Corporation Act, 1980, according to which it means a market belonging to or maintained by the Corporation. We may again point out that this point was not expressly taken in the writ petition filed by the appellants in the trial court and they are making substantially a new case in this appeal. At least Mr. Chatterjee on behalf of M/s. Happy Homes and Hotels Pvt. Ltd., who has been granted the said licence did not concede that the underground market would be a municipal Market. We hold that even assuming that the proposed market was municipal market, the decision to develop the underground of the Satya Narayan Park into an air-conditioned marked and to grant a licence in favour of the said Company was not an infringement of the provisions contained, in Chapter - XXXIV of the Calcutta Municipal Corporation Act. Under sub-section (1) of section 426 when be is authorised by the Mayor -in- Council the Commissioner may provide and maintain municipal markets, slaughter-houses and stock-yards in such number as he might think lit together with stalls, shops, shades, etc. and other buildings and convenience. Under sub-section (1) of section 426 when be is authorised by the Mayor -in- Council the Commissioner may provide and maintain municipal markets, slaughter-houses and stock-yards in such number as he might think lit together with stalls, shops, shades, etc. and other buildings and convenience. Section 4 30 of the said Act deals with levy of stallage, rent, fees etc. Under clause (c) of Section 432 of the Calcutta Municipal Corporation Act, the Municipal Commissioner may charge such stallage, rent or fee as may from time to time be fixed by the Corporation in thus behalf : - i) for the occupation on use of any stall, shop, stand etc. in a municipal market. ii) for the right to expose articles for sale in a municipal market. iii) for the right to slaughter animals, iv) to the use of machines, weights. Under clause (b) section 430-of the Calcutta Municipal Corporation act, the Municipal Commissioner may farm the stallage, rent or fee chargeable as aforesaid or any part thereof for such period as he may think fit. Under clause (c) of section 430 the Municipal Commissioner may put up to public auction or 'dispose of by private sale the privilege of occupying or using any stall, shop, stand, shed or pen in a municipal market or municipal slaughter house for which period on such conditions as he may think fit. Rest of the (provisions contained in Chapter -XXXIV of the Calcutta Municipal Corporation Act are not relevant. 14. WE are unable to accept the extreme submission of Mr. Pal that the power of the Municipal Commissioner under Section 426 of the calcutta Municipal Corporation Act, 1980 cannot be at all delegated and, therefore, the impugned arrangement between the Municipal authorities and M/s. Happy Homes and Hotels Pvt. Ltd. regarding the construction of the said market and the grant of licence in favour of the latter were in contravention Of section 426 (1) of the said Act. Section 426 (1), which is an enabling provision, lays down, inter- alia, that it would be within the power of the Municipal Commissioner when authorised by the Mayor -in- Council to provide and maintain municipal markets, slaughter-house and stock-yards. Section 426 (1)does not further lay down that the Commissioner must always himself maintain such markets, slaughter-houses or stock-yards. Section 426 (1), which is an enabling provision, lays down, inter- alia, that it would be within the power of the Municipal Commissioner when authorised by the Mayor -in- Council to provide and maintain municipal markets, slaughter-house and stock-yards. Section 426 (1)does not further lay down that the Commissioner must always himself maintain such markets, slaughter-houses or stock-yards. It is open to the Commissioner to adopt such measures as he think fit for the proper maintenance and running of the Municipal Markets. The sub-soil of Satya Narayan Park power to develop the underground is derived from the amended section 353 of the Act. The Corporation by granting the licence is developing the market. Section 4 of the Act does not forbid granting of licences of municipal markets. It would be borne in mind that at present there is no market in the subsoil. Therefore, the legality of the decision made in the instant case to develop the underground of Satya Narayan 'park is to be tested in the light of the provision of section 353 of the said Act. The submission of Mr. Pal in regard to applicability of section 4 26 really relates to the legality or otherwise of the terms and conditions of the licence granted in favour of M/s. Happy Homes and Hotels Pvt. Ltd. Before we examine the correctness of his submission that the said deed of licence dated 15th February, 1985, between the Calcutta Municipal Corporation and M/s. Happy Homes and Hotels Pvt. Ltd. contained clauses deviating from the provisions of the Calcutta Municipal Corporation Act, 1980, we may briefly refer to some of the terms and conditions of the said deed of licence dated 15th February, 1985. Under Clause (1) of the said deed in consideration of the payment of the amount of premium mentioned and the licence fee and the covenants contained, the Municipal Corporation as the licensor granted license and permitted the licencee to construct a two storied underground market at licensor's Satya Narayan Park and to remodel and improve the existing park. The licensee was to hold the said market for a period of 30 years commencing from the date of the licence. Simultaneously with the execution of the deed, the licensee paid a sum of Rs. 30 lakhs as premium and undertook to pay to the licensor rs. The licensee was to hold the said market for a period of 30 years commencing from the date of the licence. Simultaneously with the execution of the deed, the licensee paid a sum of Rs. 30 lakhs as premium and undertook to pay to the licensor rs. 40 thousand per month which was to be increased at the rate of 5% on expiry of every 10 years. The terms, conditions, duties and liabilities of the licensee were set out in paragraph 4 of the said deed. The market would be for trading of business in durable goods and excluding raw materials of any kind which are perishable in nature. The existing park to be located on the top of the market shall be maintained with better and improved amenities. The licensees shall make the market fully air-conditioned and well-ventilated. There would be arrangement of emergency power supply in the market by the licensee. The Municipal Corporation as the licensor retained control regarding the plan design and specification of the construction works to be carried out by the licensee. The licensor also retained the right to supervise the construction work. The construction works would be in conformity with the building rules of the Municipal Corporation. Under clause (6) of the licence the licensee was forbidden from selling, mortgaging, creating charge or granting leases or transfer without prior written permission from the licensor. The licensee was only given the power to grant sub-licence in the manner provided. The licensee was given right to realise premium and monthly licence fees only after completion of the construction works to be certified by the licensor. After expiry of the licence, the licensee was bound to handover the property including all installations free of liability. The licencee's power to reallot and grant sub-licences was limited by providing that terms thereof shall be as mentioned in the agreement and subject to the minimum as mentioned in the model agreement and subject to licence fee shall not be less than Rs. 100/- per sq. meter. 15. IN case of any breach of the part of the licensee to perform and observe the terms and conditions of the licence or to pay licence fee, the Corporation as the licensor under clause (16) of the agreement would be entitled to forfeit and cancel the licence. 100/- per sq. meter. 15. IN case of any breach of the part of the licensee to perform and observe the terms and conditions of the licence or to pay licence fee, the Corporation as the licensor under clause (16) of the agreement would be entitled to forfeit and cancel the licence. In our view, the licence deed contained provisions for sufficient degree of control by the Municipal Authorities over the construction and management of the air conditioned market to be installed in the underground of satya Narayan Park. It would not be correct to contend that the municipal Corporation had totally parted with the control over the construction and the running of the proposed market. We have already referred to the- clause of the licence deed which provides the minimum right of licence fee chargeable per 100 sq. meter. Thereby section 430 (a) of the Calcutta Municipal Corporation Act has not been breached. in the place, the proposed construction for the underground market would be earned out by the licensee and the instant case is not one for merely farming, the stallage, rent and fee chargeable in a market already established and provided by the Municipal Authorities. As already stated, in exercise of the power to carry out development works, the Municipal Authorities under arrangement With M/s. Happy Homes and Hotels Pvt. Ltd. had decided to develop the underground of the park. Secondly, even assuming that the market in question would be municipal market and section 426 of the Calcutta Municipal corporation Act, 1980 would be attracted, then notwithstanding the terms and conditions of the agreement the Municipal Commissioner under section 430 of the Calcutta Municipal Corporation Act, 1980 may from time to time, fix the rate of stallage, rent and fee chargeable. For the present, the Municipal Commissioner has only fixed the minimum fee chargeable by the licensee. In exercise of its statutory powers, in future, the Corporation may fix the rates chargeable. The entire licence in favour of M/s. Happy Homes and Hotels Pvt. Ltd. cannot be struck down only because the said rates have not yet been fixed by the Municipal Corporation. 16. ON behalf of the appellants the next submission before the court was that the process of granting the licence in favour of M/s. Happy Homes and Hotels Pvt. Ltd. was not fair and the same was not in public interest. 16. ON behalf of the appellants the next submission before the court was that the process of granting the licence in favour of M/s. Happy Homes and Hotels Pvt. Ltd. was not fair and the same was not in public interest. The appellants have claimed that the Municipal corporation would be carried out by the licensee and the instant case is not one for merely farming the stallage, rent and fee chargeable in a market already established and provided by the Municipal authorities. As already stated, in exercise of the power to carry out development works, the Municipal Authorities under arrangement with M/s. Happy Homes and Hotels Pvt. Ltd. had decided to develop the underground of the park. Secondly, even assuming that the market in question would be a municipal market and section 426 of the Calcutta Municipal Corporation Act, 1980 would be attracted then notwithstanding the terms and conditions of the agreement the Municipal commissioner under Section 430 of the Calcutta Municipal Corporation act 1980 may from time to time, fix the rate of stallage, rent and fee chargeable. For the present, the Municipal Commissioner has only fixed the Minimum fee chargeable by the licensee, in exercise of its statutory powers, in future, the Corporation may fix the rates chargeable. The entire licence in favour of M/s. Happy Homes and hotels Pvt. Ltd. cannot be struck down only because the said rates have not yet been fixed by the Municipal Corporation. On behalf of the appellants the next submission before the court was that the process of granting the licence in favour of M/s. Homes and Hotels Pvt. Ltd. was not fair and the same was not in public interest. The appellants have claimed that the Municipal Corporation had published advertisements only in the Calcutta newspapers and they ought to have given wide publicity. The second ground forms the including M/s. Happy Homes and Hotels Ltd. were issued (with the tender forms. Lastly, the records do not indicate that there was a due and proper consideration of the technical feasibility of the project it is not know why the other person who was given tender form was ultimately excluded. Strictly speaking, the petitioners who have filed were writ applications in the public interest cannot claim that they were aggrieved by reason of the rejection of the offer of the other person to whom tender form was issued. Strictly speaking, the petitioners who have filed were writ applications in the public interest cannot claim that they were aggrieved by reason of the rejection of the offer of the other person to whom tender form was issued. The petitioners founded their case upon the allegation that the Corporation was acting against the public interest and also ultra vires the provisions of the Calcutta Municipal Corporation Act by developing the underground of Satya Narayan Park into an air-conditioned market. They also averred that the decision taken was arbitrary and unreasonable. The appellants now cannot be allowed to urge that the so called commercial considerations were not taken into account in granting the licence in favour of M/s. Happy Homes and Hotels (Pvt.) Ltd. Before us no personal mala fide or favouritism was levelled against either the Minister concerned or any of the officers of the Corporation. We further hold that after due deliberation, the Corporation made the impugned decision. Nothings and decisions were recorded in the official Corporation file of the Municipal Corporation Newspaper notices were given inviting offers. The Committee of high officials of the Calcutta Municipal Corporation considered the technical reasonability and also the relative capabilities and had recommended the name of M/s. Happy Homes and Hotels (Pvt.) Ltd. 17. IT has been next argued that the construction of the proposed underground market would be against the public interest. There was no necessity of having another market in Burrabazar area where already about 14 markets existed. Secondly, Burrabazar was one of the most congested areas of Calcutta. Establishment of the underground market in the subsoil of the said park would immensly add to congestion of traffic and also create greater population seriously endangering the health and sanitation of the area. Environmental aspects were totally ignored by the Calcutta Municipal Corporation authorities. Therefore, the impugned decision of the Corporation was totally arbitrary and unreasonable. Hon'ble Mr. Justice Umesh chandra Banerjee in his lengthy judgment has elaborately considered the appellants' allegation that by construction of the proposed market in the underground of the Satya Narayan Park there would be serious ecological disturbances. The learned trial Judge, referred to the provisions of the Calcutta Improvement Act. We agree with the conclusions of the Learned trial judge and, therefore, it is not necessary again to elaborately set out. the reasons for rejection of the aforesaid submissions. ' 18. The learned trial Judge, referred to the provisions of the Calcutta Improvement Act. We agree with the conclusions of the Learned trial judge and, therefore, it is not necessary again to elaborately set out. the reasons for rejection of the aforesaid submissions. ' 18. WE have already noticed that in the instant case Satya Narayan park itself is not proposed to be permanently closed for the purpose of carrying on the construction of a market upon the surface. The project is one for setting up an underground market in the subsoil of the park and for re-opening of the park with the duty cast upon the licensee to develop and maintain the same. Therefore, in case the terms and conditions of the said deed of licence between the calcutta Municipal Corporation and M/s. Happy Homes and Hotels pvt. Ltd. be carried out, then there would be no diminution of the open space and the park would continue to be place for relaxation for pleasure of the residents of the locality. In fact, in the course of hearing of the appeal, we indicated that irrespective of success of the appeals, we propose to issue a mandate upon the respondents to maintain the surface as a park. Both Mr. Roy for Calcutta Municipal corporation and Mr. Chatterjee on behalf of the licencee, submitted that they would not object to issue of such command and directions to maintain the park in accordance with law the relevant clauses of the licence deed. It is not for this court to decide whether or not in Burrabazar area already sufficient number of 'markets exist and that there was no necessity for setting up of an air-conditioned, market in the underground of the park. It is for the Municipal Authorities to decide whether for sale and purchase of durables, there ought to be another market in Burrabazar area. The administrative decision in this behalf has been bonafide taken without committing any breach of the statutory obligations of the Municipal Corporation. How the Corporation ought to have raised finances for development of the underground of the park is again a matter for choice by the Calcutta Municipal corporation Authorities. This court, cannot strike down the grant of the licence by itself deciding that instead of granting the licence, finance could have been more easily raised in some other ways. How the Corporation ought to have raised finances for development of the underground of the park is again a matter for choice by the Calcutta Municipal corporation Authorities. This court, cannot strike down the grant of the licence by itself deciding that instead of granting the licence, finance could have been more easily raised in some other ways. The Corporation made its decision to develop the underground of the Satya Narayan Park by granting for limited period the licence in favour of a private party. When no allegation of mala fide or collateral purpose has been established and no provision has been violated, this Court cannot interfere with the impugned decision. 19. WE agree with the views expressed by the Learned trial 3udge about the alleged danger of pollution by reason of the construction of the proposed underground market in a congested area like Burrabazar. Therefore, it is unnecessary to give reasons for rejecting this part of the appellant's case. We further hold that the impugned decision to grant license for developing the underground of the Satya narayan Park as a market and parting space was not arbitrary or unreasonable. Therefore, in the instant case, there has been no violation of article 14 of the Constitution of India. 20. IN the above view of the matter, we 'dismiss these appeals and affirm the judgments and orders of the learned trial judge subject to the modification that there will be a writ of Mandamus Commending the respondents to restore the Satya Narayan Park as stipulated in the deed of licence dated 15th February, 1985 and to maintain the surface as a public park. The appeals however, fail in so far as the same challenged the construction of the proposed underground market and the parking space, etc. in the subsoil of the Satya Narayan Park appeal dismissed.