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Umed Sharma Vs. Doom Dooma Town Committee and anr. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 447 of 1979
Judge
ActsAssam Municipal Act, 1957 - Sections 153
AppellantUmed Sharma
RespondentDoom Dooma Town Committee and anr.
Advocates:D.C. Mahanta and B. Tanti, Advs.
DispositionPetition dismissed
Prior history
Lahiri, J.
1. The polemical question raised in this writ application is whether the Municipal Board has any jurisdiction visualised by the Assam Municipal Act, 1956, for short, 'the Act', to prohibit use of a public road by a class of vehicles for an indefinite period? To determine the question it is necessary to consider the provisions of Sections 152 and 153 of 'the Act' and also the facts and circumstances of the case which are set out hereinbelow :
2. The petitioner is a fire wood deal
Excerpt:
.....necessities of issuing the prohibitory order have clearly set out in the affidavit. none objected to the proposed order and accordingly the order was implemented for public safety, to promote public convenience, in the public interestand for public..........d. o. (civil) tinsukia, which was heard and decided in favour of the petitioner. thereafter, the town committee issued a fresh public notice dated 7-10-78 informing the public that: 'the doom dooma town committee has decided to close the road leading to the daily bazar area connecting william road, wood road (tara road) and the netaji road on both ways for heavy vehicular traffic for the security of the people, for maintenance of peace and property by erecting a post 5 1/2 feet above the ground'. and, invited objection from the persons likely to be affected by the order. the petitioner, it appears, did not submit any objection. as no objection had been received from any person, the town committee closed the portion of the road leading to 'daily bazar', for heavy vehicular traffic by.....
Judgment:

Lahiri, J.

1. The polemical question raised in this writ application is whether the Municipal Board has any jurisdiction visualised by the Assam Municipal Act, 1956, for short, 'the Act', to prohibit use of a public road by a class of vehicles for an indefinite period? To determine the question it is necessary to consider the provisions of Sections 152 and 153 of 'the Act' and also the facts and circumstances of the case which are set out hereinbelow :

2. The petitioner is a fire wood dealer of 'Daily Bazar' at Doom Dooma' who used to bring his goods in Motor Vehicles. From the second week of Sept. 1978, the Doom Dooma Town Comittes, Respondent No. I, without serving any prior notice, closed a portion of the public road leading to the Daily Bazar area connecting William Road, Wood Road (Tara Road) and Netaji Road, for heavy

vehicular traffic. Against the order the petitioner filed an application to the S. D. O. (Civil) Tinsukia, which was heard and decided in favour of the petitioner. Thereafter, the Town Committee issued a fresh public notice dated 7-10-78 informing the public that:

'The Doom Dooma Town Committee has decided to close the road leading to the daily bazar area connecting William Road, Wood Road (Tara Road) and the Netaji Road on both ways for heavy vehicular traffic for the security of the people, for maintenance of peace and property by erecting a post 5 1/2 feet above the ground'.

and, invited objection from the persons likely to be affected by the Order. The petitioner, it appears, did not submit any objection. As no objection had been received from any person, the Town Committee closed the portion of the road leading to 'Daily Bazar', for heavy vehicular traffic by erecting a post 5 1/2 feet above the ground level. The petitioner filed several applications which were not heeded by the Town Committee and/or the S. D. O. (Civil) Tinsukia, whereupon the petitioner has filed the present writ application under Article 226 of the Constitution and impugned the notices of the Doom Dooma Town Committee marked Annexures 'I and 'II' and has also questioned the validity of the action of closure of the portion of the road.

3. Respondent No. I, the Town Committee has filed an affidavit and contends inter alia, that the prohibitory order was necessary for public safety, in public interest and to promote public convenience. The break top of the road as well as the side drains were seriously damaged by heavy vehicular traffic and they created hasards to the small traders, customers and the pedestrians, accordingly, the Town Committee decided not to allow heavy vehicles to ply through the portion of the road and took up a resolution on 25-9-77. As no prior public notice had been issued before implementing the order prohibiting the use of the public road for heavy vehicles, the action and the order of the Town Committee were set aside by the Sub-Divisional Officer. Thereafter, the Town Committee issued public notice (Annexure-I) inviting objections, if any. As no objection was received, the prohibitory order was issued and 5 1/2 ft. high bars above

the ground level were set up as physical obstruction to the heavy vehicles. The petitioner contends that it was an order of closure of a public road under Section 152 of the Assam Municipal Act, 1956, but the Town Committee had no jurisdiction to make the order and take the action. The respondents justified the action and the order as duly made under Section 153(1) of 'the Act'.

4. Before dealing with the question let us steer clear of certain matters. There is no dispute raised as to the applicability of Sections 152 and 153 of 'the Act' to the Town Committee. Learned counsel for the petitioner has conceded that the portion of the land is within the Town Committee area. Learned counsel has also conceded that the Town Committee was a Municipality for all intention and purposes, by virtue of the provisions contained in Sections 334, 335 and in particular Sub-section (3) of Section 336 of 'the Act''. As such, on concession of the parties we hold that the Town Committee is a Municipality and that the portion of the road falls within the territorial limit of the Doom Dooma Town Committee, and, the provisions of Sections 152 and 153 of 'the Act' are applicable to the Town Committee. Mr. D.C. Mahanta, learned counsel for the petitioner submits that the order prohibiting heavy motor vehicles to ply on the portion of the road amounted to closure of the road contemplated under Section 152(2) of the Act. We extract the provision of Section 152(1)(2) of the Act :-

'152(1). The Board may close temporarily any public road or part of a public road for the purpose of repairing such road, or for the purpose of constructing or repairing any sewer, drain, culvert, or bridge, or for any other public purpose; or divert, discontinue or close permanently any such road;

Provided that the Board so closing any such road shall be bound to provide reasonable means of access for persons occupying holdings adjacent to such road;

Provided also that the power to divert, discontinue or close permanently any road shall only be exercised by the Board at a meeting.

(2) Whenever, owing to such repairs or constructions, or from any other cause, any such road or part of such road shall be in a state which is dangerous to passers-by, the Board shall cause sufficient barriers or fences

to be erected for the security of life and property, and shall cause such barriers or fences to be sufficiently lighted from sunset to sunrise'.

(3) *** ***'

In our opinion the section should be read along with Section 153(1 )(2) of the Act, which we extract hereinbelow

'153(1). The Board may, by public notice prohibit or regulate the driving, riding or leading of animals or vehicles of any particular kind along any public road or part of any such road.

(2). Any person who disobeys an order passed by the Board under the provisions of Sub-section (1) shall be liable to a fine not exceeding twenty rupees'.

5. Sections 152 and 153 fall under Chapter VI of 'the Act'. Section 152 empowers the Board to close any public road or part of a public road for limited purpose enjoining certain obligations on the Board. Sub-section (3) of Section 152 empowers the Municipal Board to permanently close any public road or any part thereof under certain circumstances and lays down certain obligations, with which we are not concerned in the instant case. It amounts to total prohibition to use public road in any form and in any manner whatsoever. Such closure of public road means that pedestrians, animals, vehicles are totally and completely prohibited to use the road, either temporarily or permanently. In that event such decision should be taken by the Board at a meeting. The Board is obligated to perform the obligation set out in Section 152 of 'the Act'. In the instant case the road has not been totally closed to the pedestrians, animals or vehicles, except heavy vehicles. In our opinion, the action of the Board falls under Section 153 of 'the Act'. Section 153 of the Act empowers the Board to prohibit or regulate the driving, riding or leading of animals or vehicles of any particular kind along any public road or part of any such road. In the instant case Respondent No. 1 has prohibited the driving of heavy vehicles along a portion of the public road.

6. The scheme of Section 153 of 'the Act' envisages that the Municipality has the power to prohibit the use of public road by a class of animals or vehicles. Indeed, it is a serious

business to prohibit the use of a public road. It must be done on just, proper and appropriate ground to promote public convenience, to ensure public safety or to safeguard public interest. The necessity to issue public notice prior to the prohibition etc. indicates that the power can be exercised in the public interest. In the instant case the necessary public notice had been issued before giving effect to the prohibitory order and objections were also invited from the public. Further, the imperative necessities of issuing the prohibitory order have clearly set out in the affidavit. Heavy vehicles caused damage to the road, plying of such vehicles in the daily bazar area was safety hazard to the members of the public, pedestrians, shoppers and small traders. As such, the prohibitory order was issued and implemented for the benefit of the public. However, it has been contended that it amounted to total closure of the road and the Municipality had no jurisdiction to make such an order.

7. We are of the firm opinion that the road was neither closed to the pedestrians, animals or any vehicles other than a class of vehicles, namely, heavy vehicles. As such the prohibition is applicable only to heavy vehicles, a class of vehicles. The power to prohibit use 9f a class of vehicles through a public road or part thereof could validly be made by the Board under Section 153(1) of the Act. Under these circumstances we hold that Respondent No. I had the power and jurisdiction to issue the order of prohibition and to implement it.

8. We hold that the Board has followed the procedure laid down in Section 153 and prohibited the use of the road by heavy vehicles after issuing public notice and inviting objections. None objected to the proposed order and accordingly the order was implemented for public safety, to promote public convenience, in the public interestand for public good.

9. In the result we hold that there is no merit in the application. Accordingly the petition is dismissed however there will be no order as to costs.


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