Approval of the State Government is a condition precedent for the closure of any portion of a public park under Section 353 of the Kolkata Municipal Corporation Act, 1980.

( 1 ) THIS writ petition has been filed challenging the decision of the Municipal Corporation Authorities allowing a club known as United Training Institute being represented by the General Secretary respondent No. 6 herein to use a portion of the Public park for carrying out their activities after closing the same. It is said that the said club undertakes amongst other imparting training for scout and guides and other social activities.

( 2 ) THE basis of the challenge in this matter is that this decision is contrary to the provision of Section 353 of Kolkata Municipal Corporation Act 1980 as without approval of the State Government any portion of the park cannot be allowed to be closed for the interest of the public and to be used for the purpose of carrying out any activity in the name of public Interest in violation of act. Admittedly, at the time of handing over of the possession to the aforesaid club, there was no approval of the State Government. Even when this writ petition was filed, there was no approval though Municipal Authorities sought for approval of the same as it appears from the record. This Court passed an order of injunction restraining the respondents from making any construction over the disputed part at Sisir Ghosh Park, santi Ghosh Street, Baghbazar, Calcutta-700003, This park situates in Northern portion of the City of Kolkata whereas the Registered office of this club situates at 3b/1, nebu Bagan Lane, Baghbazar, Calcutta-700003. It appears from the record that application was made by the aforesaid club to the Mayor for allowing to use a portion of the park measuring 180 square feet covering the same. It appears that by a resolution dated 24th April, 2002 Mayor-in-Council sanctioned the proposal for granting licence to use 180 Square feet at South West corner of the said park after closing the said portion.

( 3 ) I have called for the records relating to the decision having been taken in relation to this park. From the records I find the Mayor-in-Council has mechanically taken the decision while accepting the recommendation of the concerned officials to allow the aforesaid club to use by making construction on portion of the part measuring 180 Square feet for United Training Institute at the South corner inside the said park.

( 4 ) THE Mayor-in-Council has merely accepted the recommendation of the Chief C. . E. (Civil) dated 11th May, 2001 without independent and proper application of mind as to public interest. I have examined this proposal and I do not find in this proposal any subjective satisfaction subserving the public interest is there.

( 5 ) LEARNED lawyer for petitioner submits that approval of the State Government is a condition precedent before this park is allowed to be closed for such purpose. The approval, of course, came in the month of may, 2003 when this Court is in seisin over the matter having passed interim order of Injunction. He contends that this approval is wholly Invalid and this blanket approval will not cure the defect. His contention is that from the record it would appear there is no subjective satisfaction of the Mayor-in-Council while taking a decision that this closure will subserve public interest.

( 6 ) THE learned lawyer for the Corporation contends that upon proper interpretation of Section 353 of the said Act it will appear that approval of the Government is not the condition precedent and this may be obtained after decision is taken, Moreover, it is the discretionary power of the Mayor-in-Council and having taken note of the proposal of the appropriate officials who had examined all aspects, they have taken decision. The Court cannot substitute its own decision in place of the Mayor -in-Council.

( 7 ) LEARNED lawyer for the club respondent contends that his clients activities for which public Interest is Involved undertakes Imparting training to the young boys and girls in the sphere of scout and guide and other social activities. This training