1. This is a defendant's appeal against an appellate decree of Mr. Durga Parshad Sodhi, Senior Subordinate Judge, Rohtak, dated 20-12-1952, reversing the decree of the trial Court dismissing the plaintiff's suit.
2. In April 1949 the plaintiff obtained permission in writing of the Municipal Committee of Rohtak to place a wooden stall on a portion of the land belonging to the Municipality which was a part of the public highway. The condition was that the plaintiff would pay Rs. 5/- per mensem. The Municipal Committtee gave this permission under Section 173, Punjab Municipal Act and they under the same section withdrew the permission and gave notice asking the plaintiff to remove the stall as it had caused obstruction to the public highway. (3) The plaintiff then instituted a suit for permanent injunction restraining the Municipal Committee from removing the stall alleging that it did not cause any obstruction to the public. He also alleged that he was a tenant under the provisions of the Rent Restriction Act. These allegations were denied and the learned Senior Subordinate Judge in appeal held that the plaintiff was a licensee but he could not be ejected excepting after a suit brought against him by the Municipal Committee. The Municipal Committee have come up in appeal to this Court.
4. The sole question in this appeal is what is the true interpretation to be put on Section 173 (1) and (21, Punjab Municipal Act. The section provides:
'173 (1) The committee may grant permission in writing, on such conditions as it may deem fit for the safety or convenience of persons passing by, or dwelling or working in the neighbourhood, and may charge fees for such permission, and may at its discretion withdraw the permission, to any person to:
(a) ........ ........ ........(b) ........ ........ ........(c) ........ ........ ........(d) ........ ........ ........ (e) erect or set up any fence, post, stall or scaffolding in any public street.
(2) Whoever does any of the acts mentioned in Sub-section (1) without the written permission of the Committee shall be punishable with fine which may extend to fifty rupees and the Committee ..... or any person authorised by the committee may-
(i) after reasonable opportunity has been given to the owner to remove his material and he has failed to do so, remove or cause to be removed by the police, or any other agency, any such movable encroachments or overhanging structures and any such materials, goods or articles of merchandise and any such fence, post, stall, or scaffolding,
(ii) and take measures to restore the street to the condition it was in before any such alteration, excavation or damage.'
It is obvious that this section contemplates that if permission is given in writing by the Municipal Committee it can be withdrawn at its discretion which has been done in this case. The question is how is the Committee then to enforce its rights. Sub-section (2) of Section 173 no doubt does say, 'Whoever docs any of the acts mentioned in subsection (2) without the written permission of the Committee1and the argument raised by Mr. Sarin is that the wooden stall put up was not without the written permission of the Committee and therefore no action can be taken under this sub-section. He chiefly relies on a judgment of Jai Lal J. in --'Uttam Singh v. Municipal Committee, Rawalpindi', AIR 1934, Lah 783 (2) (A), where permission had been given under Section 178 for a specific time and after the lapse of that time no rent was paid by the licensee and the Municipal Committee prosecuted him under Section 173. The learned Judge held that Section 173 is not applicable to these facts and observed at page 735:
'In my opinion the view of the learned Sessions Judge is correct that Section 173, as it is worded, cannot be applied to such cases. On the other hand, it applies to cases of recent encroachments made without sanction of the Municipal Committee. The result may be unfortunate, but, in my opinion, according to law as it is, the remedy of the Committee is to have recourse to the Civil Courts and not to prosecute in the criminal Courts. The Committee having sanctioned the encroachment on payment of what is described to be rent and the relationship between the Committee and the petitioner being that of landlord and tenant or licensor and licensee, it seems to me that it is all the more reasonable that the aggrieved party should seek its remedy in the civil Courts.'
5. In the present case what has happened is that the license which was granted has been revoked. Therefore the wooden structure which is on the public road is there without any permission of the Committee in writing. The words in Sub-section (2) of Section 173, in my opinion, should Be read in such a manner that they do not lead to absurdity,' and if we read in that way the words are vide enough to cover cases where permission had been given but had been withdrawn because in that case the licensee would become a trespasser and the object of the Act is that the Municipal Committee should be able to remove without delay any structure which has been put up either without their permission or in regard to which permission has been withdrawn.
6. I would therefore hold that the learned Judge was in error in construing the section in such a manner as to preclude tlie Municipal Committee from taking action in a summary way and thus achieving the object of the Punjab Municipal Act which is to keep public highway free from all obstructions even though either through ignorance or greed it permitted encroachment to be made upon them.
7. I would therefore allow this appeal, set aside the decree of the appellate Court and restore that of the trial Court. In the circumstances of the case there will be no order as to costs in this Court or in the. Courts below.
8. I allow one month's time to the plaintiff to remove the structure.