John Beaumont, C.J.
1. This is i a second appeal against a decision of the Assistant Judge of Ahmedabad, and it raises Ian important question under the Bombay Municipal Boroughs Act, 1925.
2. The property in suit was formerly a public well, and prior to 1921 it was entered in the Record of Rights as Government property. In the year 1921 the ownership was transferred into the name of the Ahmedabad Municipality. In the year 1934 Government discovered that the well had been filled up, and in 1935 there was a survey enquiry in which it was held that the property belonged to Government. The Municipality accordingly filed this suit asking for a declaration that the property in question, which is City Survey No. 2438 of Jamalpur Ward No, 1 of Ahmedabad city, vests in and! belongs to the borough municipality. The trial Court dismissed the suit, and the decision was upheld in appeal by the Assistant Judge of Ahmedabad.
3. Section 63 of the Bombay Municipal Boroughs Act, 1925, provides in Sub-section (1) that a municipality may acquire and hold property both move-able and immoveable, and Sub-section (2) provides that all property of the nature specified in the clauses to the section, not being specially reserved by the Provincial Government, shall be vested in and belong to the municipality, and shall, together with all other property of what nature or kind soever, which may become vested in the municipality, be: under the direction, management and control, and shall be held and applied by it as trustee, subject to! the provisions and for the purposes of the Act. All the properties specified in that sub-section are properties of a public character, land include public wells. The question which arises is whether, when property of the nature described in Section 63 ceases to be used for the purpose which led to its vesting in the municipality, that is to say, in this case when la public well ceases to be used as a public well, the land vests in the Provincial Government. Under the terms of Section 63, the land has to be held and (applied by the municipality as trustee for the purposes of the Act, and it is to be noticed that there is no provision in the Act directing that property of a public nature, which ceases to be used for public purposes, shall vest in Government. On the contrary, there are sections which indicate how property of that nature is to be dealt with by the municipality. Section 65 establishes a municipal fund, which fund is to include, amongst other things, all proceeds of land or other property sold by the municipality. There are two sections which deal expressly with property vested in the municipality for public purposes which cease to exist. Section 114 deals with a disused street, and provides that the land formerly used as a street and no longer required for such purpose can foe sold under Section 48. Section 173 enables the municipality to close a market, which is one of the types of property included in Section 63, and there is no provision in that section for the land on which the market was formerly held vesting in Government. Section 48 provides that the municipality shall be competent to sell any movable or immoveable property which may, for the purposes of the Act, have become vested in or been acquired by it; but under Sub-section (2) in the case of aale of immoveable property the previous sanction of the Commissioner must be obtained.
4. In my opinion, reading those sections together, the scheme of the Act is that property used for a public purpose, as specified in Section 63, is to vest in the municipality ; and if it ceases to be used for the public purpose, the municipality can sell it, with the consent of the Commissioner under Section 48, and the proceeds will form part of the municipal fund under Section 65 ; but I can find nothing in the Act which suggests that Government have any, interest in the matter.
5. Both the lower Courts decided the case on the strength of a decision of the Calcutta High Court in Gunendra Mohan Ghosh v. Corparation of Calcutta (1916) I.L.R. 44 Cal. 689. But in that case the Court was dealing with a drain originally of private ownership, which had vested in the Corporation under a statute dealing with drains. The Court followed certain English decisions given under Section 149 of the Public Health Act, 1875. Under that section it is directed that streets shall vest in and be under the control of the urban authority. It has been held on many occasions that a street only vests in the local' authority so far (as is necessary for the purposes of its user as a street, and that the sub-soil does not vest in the local authority. One of the reasons on which those decisions were based is that it cannot be assumed that the Legislature intended to divest private property further than was necessary for the public purposes for which it was directed to vest in the local authority. But under Section 63 of the Bombay Municipal Boroughs Act there is no question of divesting private property ; all the property dealt with is property of a public nature. Moreover the classes of property dealt with are diverse in character and the section is not confined, like Section 149 of the Public Health Act, to streets alone. The only conflict which arises under the section is between the claims of the limited public of the municipality concerned and the claims of the wider public of the Province. There is nothing inherently unjust or unreasonable in the Legislature having provided that property once vested in the municipality shall for all times be held for the benefit of the local public. It is noticeable too that the expression in Section 63 is ' shall be vested in and belong to,' and the word ' belong' denotes ownership.
6. In my opinion, therefore, the lower Courts were wrong in considering this property as vested in Government, and the plaintiff is entitled to the declaration asked for with costs throughout.
N.J. Wadia, J.
7. I. agree.