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1979 Supreme(Cal) 119
IN THE HIGH COURT AT CALCUTTA
Chittatosh Mookerjee and Bankim Chandra Roy, JJ.
Sanatan Roy - Petitioner
Versus
The Municipal Commissioners of Dum Dum Municipality & Ors. – Respondents
Appeal from Original Order F.M.A. 180 of 1979 and F.M.A. 317 of 1979
Decided on : March 30, 1979
N.C. Chakraborty & M.M. Mullick for petitioner in F.M.A. No. 180 of 1979
A.P. Chatterjee and Paritosh Mukherjee ...for respondent No.7
N.N. Gupta and Amaresh Bhattacharyya... for respondents Nos. 1 & 2
A. P. Sarkar ….for State
The Commissioners of a Municipality cannot lease out municipal property without obtaining the prior approval of the State Government as required under Section 102(b)(ii) of the Bengal Municipal Act, 1932, and such lease must be executed in accordance with Section 103 of the Act.
Headnote:
MUNICIPAL LAW - LEASE OF MUNICIPAL PROPERTY - VALIDITY - CONDITIONS PRECEDENT - APPROVAL OF STATE GOVERNMENT - EXECUTION OF LEASE DEED - REQUIREMENTS - LOCUS STANDI OF PETITIONER - SUBSTANTIAL INJURY - INTERPRETATION.
Fact of the Case:
The Commissioners of Dum Dum Municipality leased out a Municipal Town Hall to Nikhilesh Ghosh for exhibiting cinema shows without obtaining the prior approval of the State Government as required under Section 102(b)(ii) of the Bengal Municipal Act, 1932. The lease deed was also not executed in accordance with Section 103 of the Act. A resident of the area, Sanatan Roy, filed a writ petition challenging the validity of the lease.
Finding of the Court:
The Court held that the lease was invalid as the Commissioners had failed to comply with the mandatory provisions of Sections 102(b)(ii) and 103 of the Bengal Municipal Act, 1932. The Court also held that the petitioner had locus standi to file the writ petition as he was a resident of the area and an elector of the Municipality, and that he had suffered substantial injury due to the Municipality's actions.
Issues: 1. Whether the lease of the Municipal Town Hall was valid? 2. Whether the petitioner had locus standi to file the writ petition? 3. Whether the petitioner had suffered substantial injury?
Ratio Decidendi: 1. The Court held that the lease was invalid as the Commissioners had failed to comply with the mandatory provisions of Sections 102(b)(ii) and 103 of the Bengal Municipal Act, 1932. The Court interpreted Section 102(b)(ii) to include buildings within the definition of 'land', and held that the previous approval of the State Government was required for the lease of the Town Hall. The Court also held that the lease deed was invalid as it was not executed in accordance with Section 103 of the Act, which requires that such deeds be signed by at least two Commissioners including the Chairman. 2. The Court held that the petitioner had locus standi to file the writ petition as he was a resident of the area and an elector of the Municipality. The Court held that a resident of a municipal area who is also a municipal voter has a real interest in seeing that the municipal affairs are carried on in accordance with law, and that such a person need not prove special damages to establish locus standi. 3. The Court held that the petitioner had suffered substantial injury due to the Municipality's actions. The Court held that the Municipality's breach of its statutory duties and obligations towards the residents of the municipal area constituted a substantial injury to the petitioner.
Final Decision: The Court dismissed the appeal filed by the Commissioners of Dum Dum Municipality and allowed in part the appeal filed by Sanatan Roy. The Court issued a writ of mandamus commanding the Commissioners of the Municipality, the Chairman of the Municipality, the State of West Bengal, and the District Magistrate, 24-Parganas not to give effect or further effect to the impugned resolution of the Commissioners of the Municipality dated 8th June, 1975, the Indenture of Lease dated 26th June, 1975, and the ratification deed dated 20th December, 1977. Liberty was given to the respondents to act and proceed in accordance with law.
Mookerjee, J. : The Commissioner of Dum Dum Municipality have constructed a Municipal Town Hall with municipal funds and also with financial assistance of the Calcutta Metropolitan Development Authority. The Commissioners had thereafter issued advertisement inviting offers for taking lease of the said Town Hall for staging theatrical performances or exhibiting cinema shows. Several offers were received in response to the said advertisement. The Commissioners of the Municipality at a meeting held on 8th June, 1975 purported to consider the said offer and further decided to accept the offer of Sri Nikhilesh Ghosh for the lease of the said Town Hall for exhibiting cinema shows at an annual rent of Rs. 50,000/- payable in advance by monthly instalments for 5 years with the option for renewal for three more such terms at an enhanced rent of 10% for each successive term. The Commissioners authorised the Chairman to enter into an agreement incorporating the points discussed in the meeting dated 8th June, 1975.
2. On June 26, 1975 and Indenture of Lease between the Commissioners of Dum Dum Municipality represented by their Chairman of the one part and Sri Nikhilesh Ghosh of the other part, was executed purporting to demise and lease out the said Town Hall to Nikhilesh Ghosh for a term of 5 years with option for renewal for three successive terms pursuant to the aforesaid resolution of the Commissioners of the said Municipality.
3. Sanatan Roy, who is the appellant in F.M.A. No. 180 of 1979, filed a writ petition inter-alia praying that the said resolution of the Commissioners of Dum Dum Municipality dated June, 8, 1975 be cancelled and the respondents be prohibited from giving any effect or taking any steps in pursuance of the said resolution dated June ,8, 1975. The said petitioner also prayed that the licence for permanent cinema shows granted by the District Magistrate, 24-Parganas in favour of the respondent No.7 be also cancelled and/or withdrawn.
4. At this stage, it may be pointed out that in his writ petition, Sanatan Roy did not give sufficient particulars relating to the grant of a licence under the West Bengal Cinema (Regulation of public Exhibitions) Rules, 1956 in favour of Nikhilesh Ghosh, the respondent No.7. He merely averred that the District Magistrate, 24-Parganas by a letter had informed one of the citizens that he had rejected the application of Nikhilesh Ghosh for licence but his order was revised by the State Government and matter could be taken up with the concerned department of the Government and no further action was possible from his end (vide paragraph 5 of the writ petition). No copy of the order of the District Magistrate, 24-Parganas rejecting the said application of the respondent No.7, Nikhilesh Ghosh, was annexed to the writ petition. Neither the petitioner nor the respondents to the Civil Rule disclosed the precise terms of the order of the State Government purporting to revise the said order of rejection by the District Magistrate, 24 Parganas. The writ petition did not contain any prayer for quashing the said revision order of the State Government. The judgment of the learned Single Judge disposing of the Civil Rule No. 1989(W) of 1977 also makes no reference to the granting of the said cinema licence. For all these reasons, we do not propose to consider the legality or otherwise of the purported granting of licence under the West Bengal Cinema (Regulation of Public Exhibitions) Rules, 1965 in favour of Nikhilesh Ghosh and keep open all claims and contentions of the parties with regard to the validity, legality or otherwise of the said licence for exhibiting films in the Town Hall at Dum Dum. Accordingly, both parties will be entitled to take recourse to appropriate legal proceedings for establishment of their said claims and contentions.
5. S.C. Deb J. by his judgment dated 10th January, 1979 disposed of the Civil Rule No. 1989 (W) of 1977. His Lordship held the lease in question was not va
