The main legal point established in the judgment is the mandatory requirement of prior sanction from the Mayor-in-Council and approval of the State Government for the permanent closure of public streets, as per the provisions of the Kolkata Municipal Corporation Act, 1980.

Harish Tandon, J.

The writ petition was filed at a point of time when the construction of pay and use toilet in front of the entrance gate of the petitioner was under process, but during pendency of the writ petition and the report submitted in terms of the order passed therein, the same is virtually complete.

2. On the first day of moving the writ petition it was submitted on behalf of the petitioner that the construction of pay and use toilet not only blocked the free access to his premises but would also emit foul and dirty smell, which would render the petitioner as well as the other inhabitants of the said premises unable to live.

3. It was submitted by the Kolkata Municipal Corporation that the said pay and use toilet is constructed after obtaining the consent from the brother of the petitioner and, therefore, the petitioner cannot raise any objection or challenge such action of the Corporation in constructing the said public utility.

4. It was informed to the Court that previously the premises was un-partitioned and after the partition is effected the brother of the petitioner, who is allotted a portion thereof, is not affected by the construction of the said public utility as the same is being constructed opposite to the entrance of the petitioner's portion.

5. This Court directed the Corporation to see whether any other suitable place can be found out within the circumference of 500 meters from the existing site so that the said public utility can be shifted to avoid any nuisance and annoyance to the petitioner because of the emission of foul smell. It was further indicated whether ventilators facing the property of the petitioner can be shifted to some other place.

6. The report filed by the Corporation suggests that there is no place available within the periphery of 500 meters from the existing site and the ventilators have been shifted from the side of the petitioner's property to some other place.

7. At this juncture, the matter took a different turn, as an argument was advanced by the petitioner that the provisions of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as 'said Act') prohibits such construction without seeking a previous sanction from the Mayor-in-Council and the approval of the State Government.

8. Since the point raised by the petitioner is pure question of law, this Court, therefore, proceeded to decide the writ petition without inviting the affidavits from the Corporation.

9. The petitioner says that the classification of public streets in Kolkata includes the footpath and in view of Section 353 of the said Act the same cannot be permanently or temporarily closed for public interest or for the purpose of carrying out the provisions of the said Act unless a previous sanction of Mayorin-Council and the approval of the State Government is obtained. It is, thus, submitted that the post-facto approval of Mayor-in-Council does not cure the incurable defects and makes the illegal act valid in view of the language used in Section 353 of the said Act. It is, thus, submitted that the words 'may' and 'shall' are interchangeable to ascertain its nature whether mandatory or directory depending upon the object and purposes for which the same has been inserted.

10. On the other hand, the Corporation says that though the public utility is constructed on footpath but the same was with the permission of Basti Department and the moment the attention of the authorities are drawn to the provisions contained under Section 353 of the said Act, the Mayor-in-Council has subsequently granted sanction and, therefore, there is a substantial compliance of the aforesaid provision. It is further submitted that a substantial amount has been invested for construction of the public utility taking into account the interest of public at large and, therefore, any order in the nature of demolition would not only cause the loss to the public exchequer but will also deprive the public at large to be benefited from