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1969 Supreme(Cal) 137
High Court Of Calcutta
A.K. Sinha, J.
Tarak Kumar Karki : Appellant
Versus
State Of West Bengal : Respondent
Decided On : Jun 13,1969
Arun Kr. Dutta, Madan Kumar Roy, Probodh Banerjee, Ranadeb Choudhury, S.C. Bose
Municipal Commissioners have the power to grant a lease of municipal property under Section 102 of the Bengal Municipal Act, 1932, and such a lease is not invalid or inoperative if it is within the powers of the Municipal Commissioners and does not contravene any provisions of the Act.
Headnote:
MUNICIPAL LAW - LEASE OF MUNICIPAL PROPERTY - POWERS OF MUNICIPAL COMMISSIONERS - BENGAL MUNICIPAL ACT, 1932 - SECTIONS 95(1)(F), 102, 108(XXXVI) - VALIDITY OF LEASE OF MUNICIPAL TOWN HALL FOR RUNNING CINEMA HOUSE - WHETHER WITHIN POWERS OF MUNICIPAL COMMISSIONERS - INTERPRETATION OF STATUTORY PROVISIONS - DELAY IN FILING WRIT PETITION - LACHES - WRIT OF MANDAMUS - WHETHER MAINTAINABLE AGAINST THIRD PARTY - WRIT OF CERTIORARI - SCOPE AND APPLICABILITY - WRIT OF PROHIBITION - SCOPE AND APPLICABILITY.
Fact of the Case:
The petitioners, residents of Darjeeling, challenged the resolution of the Darjeeling Municipality granting a lease of the Darjeeling Town Hall to the respondent No. 3 for running a cinema house. The petitioners contended that the lease was extraneous to the purpose of the Act, contravened the provisions of the Act, and was invalid and inoperative. They also argued that the lease created an unreasonable restriction on their fundamental rights.
Finding of the Court:
The court held that the petitioners' writ petition was barred by laches and delay. The court also held that the Municipal Commissioners had the power to grant the lease under Section 102 of the Bengal Municipal Act, 1932, and that the lease was not invalid or inoperative. The court further held that the writ of mandamus could not be issued against the third party, the lessee, and that the writs of certiorari and prohibition were not applicable in the present case.
Issues: 1. Whether the petitioners' writ petition was barred by laches and delay. 2. Whether the Municipal Commissioners had the power to grant the lease under Section 102 of the Bengal Municipal Act, 1932. 3. Whether the lease was invalid or inoperative. 4. Whether the writ of mandamus could be issued against the third party, the lessee. 5. Whether the writs of certiorari and prohibition were applicable in the present case.
Ratio Decidendi: 1. The court held that the petitioners' writ petition was barred by laches and delay because the petitioners had failed to explain the inordinate delay in filing the petition, despite having knowledge of the lease since 1933. 2. The court held that the Municipal Commissioners had the power to grant the lease under Section 102 of the Bengal Municipal Act, 1932, which empowered them to sell, lease, exchange, or otherwise dispose of any land not required for the purposes of the Act. 3. The court held that the lease was not invalid or inoperative because it was within the powers of the Municipal Commissioners and did not contravene any provisions of the Act. 4. The court held that the writ of mandamus could not be issued against the third party, the lessee, because a writ of mandamus is a prerogative writ that can only be issued against public authorities or statutory bodies, and not against private individuals. 5. The court held that the writs of certiorari and prohibition were not applicable in the present case because the impugned resolution was not a quasi-judicial order and the lease was not a statutory order.
Final Decision: The court dismissed the petitioners' writ petition, holding that it was barred by laches and delay, and that the Municipal Commissioners had the power to grant the lease and that the lease was not invalid or inoperative. The court also held that the writ of mandamus could not be issued against the third party, the lessee, and that the writs of certiorari and prohibition were not applicable in the present case.
1. IN this Rule the petitioners pray for cancellation of certain resolution (annexure D to the petition) relating to the grant of lease of 'Darjeeling Town hall' a property of the Darjeeling Municipality in favour of the respondent No. 3.
2. THE facts as set out by the petitioners briefly are : the petitioners are the residents of darjeeling within its municipal limits, the petitioner No. 2 being also a rate payer of the Municipality. A Town hall substantially at the expense of the then Maharaja of Cooch Behar was constructed sometime in 1917. Thereafter, he made a gift of this property to the Municipality of Darjeeling. Although the Town Hall was required to be used for the benefit of the general public within the municipal area of the darjeeling Municipality under the Trust created by the then Maharaja of Cooch behar, it was leased out in spite of pro-test made by the Youth Federation of darjeeling to the respondent No. 3 for running a Cinema House sometime in 1955 for a period of 10 years with an option of renewal by the Municipality for a further period of 10 years. On 16-5-65 a public meeting was held under the auspices of the Darjeeling Citizens Welfare committee protesting against the reported renewal of the said lease to the respondent No. 3. In spite of this there was such renewal of lease to the respondent No. 3 granted by the Municipality by the resolution of Commissioners in August 1965. That is how, the petitioners felt aggrieved and obtained the present Rule.
Upon these facts Mr. Arun kumar Dutt, learned Advocate for the petitioners raises the following points :
(i) The lease of Town Hall for running a Cinema House is extraneous for the purpose of the Act and contravenes sub-sections 2 and 3 of Section 108 of the B. M. Act. (ii) The Town Hall being a Municipal property within the meaning of section 95 (1) (f) of the Bengal Municipal Act, 1932 (referred to herein as the Act) can only be utilised for the purpose where municipal fund is applicable. (iii) The impugned resolution or the lease falls within the scope and ambit of Clause XXXVI of Section 108 of the b, M. Act and as such being foreign to the purpose for which the Municipal fund is applicable they are invalid and inoperative. (iv) The Town Hall being a Municipal property within the scope of 95 (i) (f) of the Act no lease could be granted nor it could be utilised for profits not warranted by terms of Section 95 of the Act. (v) The subsisting lease is an unreasonable restriction on the petitioners' fundamental right as it tends to create monopoly in favour of the respondent No. 3 to the exclusion of the municipal Authority itself and, therefore, is not in the interest of the general public.
3. BEFORE I enter into the merits of the above point raised by Mr. Dutt i must notice that there are several hurdles to cross before the petitioners can successfully press the above points in this case. The first is, one of delay. On the petitioner's own showing the lease of the municipal Town Hall was granted to the same respondent No. 3 for running a Cinema House from the year 1933. The impugned resolution now sought to be quashed in the present writ proceeding was really passed for continuation of the same lease by way of renewal for another 10 years from the year 1965. No explanation seems to have been given by the petitioners as to why they could not come to Court earlier for cancellation of such lease which is clearly being renewed from time to time by the Municipal Commissioners for the same purpose in favour of the same person from 1933. It is true that a resolution granting lease could not be challenged in a writ proceeding prior to the commencement of the Constitution but nevertheless it was open to the petitioners to file a suit for cancellation of the lease if such a lease was granted beyond the scope of the powers conferred upon the Municipal Commissioners under the Act. Even after the commencement of the Constitution there has been an inordinate delay
