ORDER
Sengupta, J.
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 6f 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 handling 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-700 003. 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. M. E. (Civil) dated 11th May, 2001 without respondent 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 trial 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, 2008 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 client's 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 helps the youth to develop their personality and make the sensible and responsible in the society as well as in the family to which they belong.
8. His client after having applied and got sanction, has bona fide taken possession of the portion of the park for setting up a temporary strut lure and establishment. So his client has not violated the provisions of the Act. He is prepared to produce necessary documents to satisfy the Court of his client's activities that serve public interest.
9. Having, heard the respective contentions of the learned counsel and considering the records produced before me, point for consideration is as to whether the Municipal Commissioner has taken a decision properly or not in accordance with Section 353. His decision is depending upon the sanction off the Mayor-in-Council and subject to approval of the State Government. Therefore, I appropriately quote Section 353 of the Calcutta Municipal Act, 1980:
'Permanent close of public street, park, square or garden and disposal of land,-- (1) The Municipal Commissioner may, with the previous sanction of the Mayor-in-Council, and subject to the approval of the State Government, permanently or temporarily close the whole or any part of a public street, park, square or garden in the public interest or for. the purpose of carrying out the provisions of this Act:
Provided that the Municipal Commissioner shall give a public notice of such closure by insertion in at least three local newspapers and the notice shall specify the date on and from which the closure shall be effected.
(2) For the purpose: of carrying out any development work in any public street, park, square or garden or any part thereof, such public street, park, square or garden or the part thereof or the sub-soil thereunder may be dealt with or settled or transferred, as the case may be, either temporarily or permanently by way of grant of lease or licence, as the case may be, and on such terms and conditions and for such period as the Municipal Commissioner may. with the prior approval of the Mayor-in-Council and subject to the approval of the State Government, determine and for such development work the public street, park, square or garden or any part thereof may be closed temporarily or permanently, as the case may be and in such a case a public notice shall be given in the manner as in Sub-section (1) specifying the date from which the closure shall be effected :
Provided that the site of so much of the roadway or footpath as would not be required for using as a public road or public thoroughfare by a reason of providing better and alternative public road or public thoroughfare including footpath shall be dealt with or settled or transferred on lease or licence.'
10. It appears from the aforesaid Section that before the Municipal Commissioner takes a decision for closing any portion of the public street, square, park or garden, he must ascertain that object of closure will serve public interest, and this decision shall be preceded by sanction of the Mayor-in-Council and subject to approval of the State Government.
11. In my view, the approval of the State Government is a condition precedent by reason of the fact public street and public property and public park within the Municipal are meant for public benefit, if closure either partially or totally of these places serves greater, interest of the public than keeping it open, then Commissioner can do so within the parameter as mentioned in the section. Open space is a crying need of crowded metropolitan city and when such open space is reduced then one has to examine whether closure will subserve the greater interest or not. In other words, both Municipal Commissioner as well as Mayor-in-Council and lastly State Government must come to subjective satisfaction that public interest will be subserved with partial closure of the park by allowing the club to use.
12. I do not find in the records that there is any subjective satisfaction or opinion being formed. No material has been shown in the records that the activity of the club is done for the public at large. In other words, the club trains any young boys and girls from public.
13. The approval given by the Government: during pendency of this matter is of no value as this has been done after the park is closed and possession being given to the club and it is worse in the eye of law as this has come during pendency of the writ petition and without informing the Court even. The Court prima facie did not approve of the action as such interim order was passed So it would not be open for the State Government to frustrate the order of injunction by sending approval with leave of the Court. Therefore, on its true meaning, this approval accorded by the Government during pendency of this matter is of no value. The decision of the Municipal Commissioner and sanction of the Mayor-in-Council, and the process of making thereof, if (sic) as I have observed already is illegal. Therefore, entire follow up action is also illegal and invalid. An other significant aspect is that there is no public notice of such partial closure of Park in the manner as provided in proviso of the said section. This is essential and precondition before possession is given. Therefore I set aside and quash the decision of the Commissioner and the Mayor-in-Council.
14. It would be open for the club concerned to apply after producing all materials showing their activities are meant for public and the public interest will be subserved by such activities. The Mayor-in-Council as well as the Commissioner themselves will come to their subjective satisfaction that if the portion of the park is closed temporarily for use of the club will subserve the public: interest and the decision can be taken afresh, The Government shall also examine while granting approval shall come to subjective satisfaction as above. The possession can be given after all the processes are complete followed by publishing notification as above.
15. The interim order of injunction already passed stand confirmed.
16. All parties concerned are to act on a signed xerox copy of this Dictated Order on the usual undertaking.