DEBU BHATTACHARJEE Vs. CALCUTTA MUNICIPAL CORPN

JUDGEMENT

(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:-

(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.