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Sukhlal Parshottam Vs. Surendranagar Joint Municipality - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberCivil Ref. No. 1 of 1960
Judge
Reported inAIR1962Guj25; (1961)0GLR518
ActsBombay District Municipal Act, 1901 - Sections 3(12), 48, 50(2), 90(1), (5), 92, 113, 118 and 122; Constitution of India - Articles 19(1), (5), (6), 31 and 31(1)
AppellantSukhlal Parshottam
RespondentSurendranagar Joint Municipality
Appellant Advocate H.C. Shah, Adv.; J.M. Thakore, Adv. General and; B.R. So
Respondent Advocate J.R. Nanavaty, Adv.
Cases ReferredKshetra Mohan Ghosh v. Corporation of Calcutta
Excerpt:
constitution - acquisition - sections 3 (12), 48, 50 (2), 90 (1), (5), 92, 113, 118 and 122 of bombay district municipal act, 1901 and articles 19 (1), (5), (6), 31 and 31 (1) of constitution of india - appellant's shop were abutting on side of street - street declared by municipality to be public street under provisions of section 90 (5) - whether declaration invalid and section 90 (5) violative of articles 19 (1) and 31 - to extent that section 90 (5) refers to streets as implying road or passage accessible to public and to extent that expression 'street' includes vacant space of nature set out in second part of definition provisions violate rights given under article 19 (1) (f) and invalid - to the extent that provisions refer to any road or passage accessible permanently to public.....desai, c.j. 1. this is a reference under section 113 of the civil procedure code. the learned district judge, jhalawad division, has referred to us the question about the constitutional validity of section 90, sub-section (5) of the bombay district municipal act, 1901, as adapted. the learned district judge was of the opinion that section 90, sub-section (5) of that act was void inasmuch as it violated the fundamental rights guaranteed under article 19(l)(f) of the constitution. he found that the determination of that question was necessary for the disposal of the appeal that was pending before him and that the said sub-section had not been declared invalid or inoperative by any high court or the supreme court so far.2. the appellant in civil appeal no. 207 of 1957, which was being heard.....
Judgment:

Desai, C.J.

1. This is a Reference under Section 113 of the Civil Procedure Code. The learned District Judge, Jhalawad Division, has referred to us the question about the constitutional validity of Section 90, Sub-section (5) of the Bombay District Municipal Act, 1901, as adapted. The learned District Judge was of the opinion that Section 90, Sub-section (5) of that Act was void inasmuch as it violated the fundamental rights guaranteed under Article 19(l)(f) of the Constitution. He found that the determination of that question was necessary for the disposal of the appeal that was pending before him and that the said sub-section had not been declared invalid or inoperative by any High Court or the Supreme Court so far.

2. The appellant in Civil Appeal No. 207 of 1957, which was being heard by the learned District Judge, was the owner of three shops situate at Surendranagar which were abutting on the northern Side of a street. That street was declared by the Surendranagar Joint Municipality to be a public street under the provisions contained in the aforesaid Section 90, Sub-section (5). A question arose ill that appeal whether such declaration was invalid and it was urged that Section 90, Sub-section (5) was violative of the constitutional rights guaranteed under Article 19(1)(f) and Article 31 of the Constitution and no action could be taken thereunder. Section 90, Sub-section (5) provides as under:

'A Municipality may, at any time, by notice fixed up in any street or part of a street not maintainable by the Municipality, give intimation of their intention to declare the same a public street, and unless within one month next after such notice has been so put up, the owner or the majority of several owners of such street or such part of a street lodges or lodge objections thereto at the municipal office, the Municipality may by notice in writing put up in such street, or such part, declare the same to be a public street'.

The expression 'street' has been defined in Section 3, Sub-section (12) of that Act. That sub-section provides as follows;

'3. (12)-- 'Street' shall mean any road, footway, square, court, alley or passage accessible whether permanently or temporarily to the public, whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property, and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or Other buildings abut thereon, and if it is used by any person as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid' The expression 'public street' has been defined by Section 3, Sub-section (13). The said sub-section runs as under;

'3. (13)-- 'Public Street' shall mean any street--(a) over which the public have a right of way, or

(b) heretofore levelled, paved, metalled, channelled, sewered or repaired, out of municipal or other public funds, or

(c) which under the provisions of Section 90 is declared by the municipality to be, or under any other provisions of this Act becomes a public street'.

In construing the provisions contained in Section 90, Sub-section (5), we have to substitute for the word 'street' in that section the definition given of a 'street' in Section 3, Sub-section (12). So substituted, Section 90(5) provides that the municipality may declare any road, footway, square, court, alley or passage accessible whether permanently or temporarily to the public, whether a thoroughfare or not, to be a public street. It may equally declare every vacant space, if houses, shops or other buildings' abut thereon, and if it is used by any person as a means of access' to or from any public place or thoroughfare, whether such persons be the occupiers of such buildings or not, provided however that any part of such Space which the occupier of any such building has a right at all hours to prevent' all other persons from using as aforesaid, cannot be so declared to be a public street. The definition of the expression 'street' falls into two parts. The first part specifies what the expression shall mean for the purposes of the Act. By the second part, that definition is made to include such vacant space as is specified in that part. It was urged by the learned Advocate General on behalf of the State that the second part of the section was intended to limit the provisions of the first part. We are unable to accept that contention. By the first part, it has been staled in express terms that a street shall mean what is there laid down. By the second part, it is intended to enlarge the definition of the word 'street' given in the first part and that expression is made to include something which otherwise would not fall within its ambit as defined in the first part. When the legislature uses the words 'and shall include every vacant space etc.', it did not intend in any way to limit the scope of what is set out in the first part. In view of what we have stated above, we shall next proceed to consider what the municipality has been empowered to do under the provisions of Section 90, Sub-section (5).

3. The municipality has been empowered under Section 90, Sub-section (5) to declare a street to be a public street, that is, it is entitled to declare any road accessible whether permanently or temporarily, to the public, to be a public street. It is entitled to declare any footway accessible whether permanently or temporarily to the public, to be a public street. It is entitled to declare any square, court, alley or passage accessible whether permanently or temporarily to the public to be a public street. It is entitled to declare every vacant space which satisfies the requirements of the second part of the definition, to be a public street. It is clear from the above that if there is any road, footway or passage which is temporarily accessible to the public, the samecould be declared by the municipality to be a public street. There are various consequences which flow from such a declaration. Section 50, Subsection (2) provides as follows:

'All property of the nature hereinafter in thissection specified, and not being specially reservedby the State Government shall be vested in andbelong to the Municipality, and shall, together withall other property, of what nature Or kind soever, not being specially reserved by the State Government which may become vested in the Municipality, be under their direction, management and control, and shall be held and applied by them astrustees, subject to the provisions and for the purposes of this Act; that is to say--;

x x x x x

(f) all public streets, and the pavements, stones and other materials thereof and also all trees, erections, materials, implements and things provided for such, streets'.

The effect of this provision is that all public streets, and the pavements, stones and Other materials thereof and also all trees, erections, materials, implements and things provided for such streets become vested in and belong to the municipality and be under their direction, management and control and shall be held and applied by them as trustees subject to tile provisions and for the purposes of that Act.

4. A question has arisen as to the meaning and effect of the words 'shall be vested' appearing in this sub-section. Language somewhat similar to the language used in Section 60, Sub-section (2) was construed by the House of Lords in the case of Tunbridge Wells Corporation v. Baird, 1896 AC 434. In that case, the House of Lords was considering the provisions of Section 149 of the Public Health Act, 1875. Dealing with the question relating to the vesting of a street, Lord Halsbury L.C. in his speech at p. 437, observes as follows:

'My Lords, for my own part, I am disposed to adopt every word of what James L. J. said in the passage that has been quoted as to the true effect and meaning of the vesting of a 'street', in a local body. That the street should be vested in them as well as under their control may be, I suppose, explained by the idea that, as James L. J. points out, it was necessary to give, in a certain sense, a right of properly in order to give efficient control over the street. It was thought convenient, I presume, that there should be something more than a mere easement conferred upon the local authority, so that the complete vindication of the rights of the public should be preserved by the local authority; and, therefore, there was given to them an actual property in the street and in the materials thereof. The same section that vests the street in them vests also the materials, the actual personal properly provided for the purpose of repair, and so forth. It is intelligible enough that Parliament should have vested the street qua street, and, indeed, so much of the actual soil of the street as might be necessary for the purpose of preserving and maintaining and using it as a street'.

Thereafter he proceeds to observe that the provision with respect to the subsoil was totally different, and stated that rights in the subsoil would not be vested in the municipality. Lord Harschell,in his speech in the same case, observes that the vesting of the street vested in the urban authority such property and such property oply as was necessary for the control, protection and maintenance of the street as a highway for public use. Lord Macnaghten, in his speech in that case, observed that the meaning of Section 149 of the Public Health Act, 1875, was to give the urban authority the control and management of streets coming within the description therein contained, and such statutory right in the nature of a right of property as may be sufficient to authorise it to sue and be sued as occasion may require in the course of such control and management. The same subject has been dealt with in the case reported in (1903) 1 Ch. 437 -- Finchley Electric Light Co. v. Finchley Urban District Council. The Master of the Rolls. in that case observes at page 440 as follows ;

'There is no doubt that this street had become a highway repairable by the inhabitants at large, and therefore the right conferred by Section 149 upon the local authority existed. That right is that the street and the pavements, stones, and Other materials thereof, etc., shall vest in and be under the control of the urban authority. It has been decided by a long series of cases that the word Vest' means that the. local authority do actually become the owners of the street to this extent; they become the owners of so much of the air above and of the soil below as is necessary to the ordinary user of the street as a street, and of no more. For example, they do not take that part of the subsoil which has to be used for the purpose of laying sewers'.

Thereafter the Master of the Rolls refers to the decision of the House of Lords in 1896 AC 434, referred to by me earlier, and observes that their Lordships arrived at that conclusion in that case in accordance with the principles laid down by a line of cases beginning with Coverdale v. Cherlton, (1878) 4 QBD 104 that, in construing an Act of Parliament which conferred a right upon a public authority for which they do not pay, the Court gave the best effect to the intention of the legislature by limiting the right to the area which is necessary to enable them to perform the duties imposed upon them in respect of the street as a street. He further observed that there was a great deal of controversy as to what area was embraced under that definition, and after referring to the ease reported in Wandsworth Board of Works v. United Telephone Co., (1S84) 13 QBD 904 observed that the result of the judgment referred to by him appeared to be that that which was vested in the local authority was what is called the area of user. He stated that all the stratum of air above the surface and all the stratum of soil below the surface which in any reasonable sense can be required for the purpose of the street as street, vest in and belong to the local authority.

5. In the case reported in Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, (S) : [1957]1SCR1 the Supreme Court had to, consider the meaning of the expression 'vest' in connection with the U. P. Town Improvement Act. 1819. In the course of the judgment of Justice Sinha, as he then was, the aforesaid authorities have been quoted with a view to arrive at the truemeaning of the expression 'vest'. The provisions of the Bombay District Municipal Act, 1901, came up for consideration by Mr. Justice Lokur in the Bombay High Court in the case reported in Chotalal Panachand v. Borough Municipality of Nadiad, 41 Bom LR 1097; (AIR 1939 Bom 501). After referring to the definition of the expression 'public street' in Section 3, Sub-section (13), he observed that it did not follow from the definition that the soil of every public street must necessarily be of the ownership of the Municipality. He stilted that Section 50, Sub-section (2) (f) of the Bombay District Municipal Act, 1901, said that all public streets, and the pavements, stones and other materials thereof and also all trees, erections, materials, implements and things provided for such streets shall be vested in and belong to the Municipality and shall be held and applied by them as trustees. He refers to the decision in the case of Modhu Sudan Kundu v. Promode Nath Roy, reported in ILR 20 Cal 732. He observed that unless it was definitely proved that the soil of any public street belonged to the Municipality; it could not be presumed to be of the ownership of the Municipality on the ground that it was used as a public street. He stated that in fact, Section 90, Sub-section (5) contemplated a private street being declared by the Municipality as a public street, but thereby the soil of such street did not come to be of the ownership of the Municipality. The only effect of such a declaration was that the street was allowed to be used by the public and the public could claim a right of way over it as contemplated by Section 3, Sub-section (13).

6. In the case of Nagar Valab Narsi v. Municipality of Dhandhuka, ILR 12 Bom 490, the Court held, in connection with Section 17 of that Act, that the word 'street' meant and included not merely the surface of the ground, but so much above and below it as was requisite or appropriate for the preservation of the street for the usual and intended purposes, the Madras High Court, in the case of Sunduram Ayyar v. Municipal Council of Madura and Secy. of State for India in Council, reported in ILR 25 Mad 635, has observed that when a street was vested in a Municipal Council, such vesting did not transfer to the municipal authority the rights of ownership in the site or soil over which the street existed. It did not own any soil from the centre of the earth, but it had the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as was necessary to enable it to adequately maintain the street as a street. The Calcutta High Court has made similar observations in the case of Kshetra Mohan Ghosh v. Corporation of Calcutta, reported in AIR 1917 Cal 95. It held that the legal effect of the statutory vesting of a street or a drain was not to transfer to the municipality the ownership in the site or soil over which the street or the drain existed, but only the surface and so much of the air space above and so much of the soil below to the municipality as may reasonably be required. In Our view the authorities referred to above very well set out the legal effect of the vesting of a street as provided by Section 50, Sub-section (2). The section in terms states that all public streets, pavements, stones and other materials thereof and also alltrees, erections, materials, implements and things provided for such streets shall be vested in and belong to the municipality. To the extent that there is such vesting in the municipality, there is a divesting of the owner. To the extent that the same belonged to the municipality, they cease to belong to the owner. To the extent of such divesting and to the extent that the same ceased to belong to the owner, there is a deprivation of the right of the owner on what we may call a private street being declared to be a public street.

7. There are other provisions of the Act to which reference may be made when considering the constitutionality of the provisions contained in Section 90(5). By Section 48 of that Act. every municipality is empowered from time to time, with the previous sanction, in the case of a City Municipality, of the State Government, or in other cases of the Commissioner, to make, alter or rescind bye-laws, but not so as to render them inconsistent with this Act, for, among other things, regulating conditions on which permission may be given for the temporary occupation of, or the erection of temporary structures on, public streets or for projections over public street and regulating the structure and dimensions of plinths, walls, foundations, roofs and chimneys of new buildings for the purpose of securing stability and the prevention of fires, and for purposes of health. Once a street is declared to be a public street, the bye-laws framed under this section come into operation. Section 92 refers to the powers that may be exercised by a municipality if any part of a building projects beyond the regular line of a public street. Section 113 refers to the powers of the municipality in connection with the granting of permission to owners or occupiers of buildings in public streets to put up open verandahs, balconies or rooms and to project them from any upper storey thereof, at such height from the surface of the street as the municipality may fix by bye-laws from time to time, and to the removal of such projections. Section 118 refers to the power of the municipality to require the owner or occupier of any land so to trim or prune the hedges thereof bordering any public street that the said hedges may not extend the height of four feet from the level of the street, and width of four feet, and to cut down, lop or trim all trees or shrubs which in any way overhang, endanger or obstruct, or which they deem likely to overhang, endanger or obstruct any public street, Or to cause damage thereto. Section 122 refers to the powers of the municipality in connection with obstructions and encroachments upon public streets. These provisions indicate that various consequences flow from the declaration of a street into a public street. They indicate that on such declaration being made, there are certain restrictions imposed upon the person who may have any property abutting on the street. These provisions indicate that on a street being declared to be a public street, there if a deprivation of certain property. There is a restriction on the use and enjoyment of properly directly resulting from such a declaration.

8. In the light of what we have stated above, we will proceed to consider whether the provisions are in any way violative of Article 19(l)(f)and Article 31, of the Constitution. We shall first proceed to deal with Article 31. That Article provides as follows:

'31. (1) No person shall be deprived of his property save by authority of law.

(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.

(2-A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be defined to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.'

Clauses (2) and (2-A) of Article 31 have been provided for by the Constitution (Fourth Amendment) Act, 1955, and effected a considerable change in the pre-existing law. Article 31(2) refers to compulsory acquisition or requisition of property and provides that the same cannot be done except for a public purpose and except by authority of a law which provided for compensation. It is not necessary to set out the other ingredients of Article 31(2), inasmuch as there is no provision for any compensation made in the Bombay District Municipal Act, 1901, as adapted. Sub-clause (2A) of Article 31 however, limits the operation of Sub-clause (2) of Article 31. It lays down cases when a law shall not be deemed to provide for compulsory acquisition or requisition of property, notwithstanding that such law deprived any person of his property. It is there provided that where a law does not provide for the transfer of ownership or right to possession of any property (1) to the State, or (2) to a corporation owned or controlled by the State, it shall not be deemed to provide for compulsory acquisition or requisition of property. In the present case, there is no transfer of ownership or right to possession of any property to the State or to a corporation owned or controlled by the State. What is provided for is a vesting in favour of a municipality. A municipality cannot be regarded either as a State or a corporation owned or controlled by the State, with the result that even though there might be a transfer of ownership in a certain sense sought to be effected by Section 50, Sub-section (2) on a street being declared to be a public street, the provisions of Clause (2) of Article 31 are no; attracted. In view of the provisions of Clause 2A), the property could not be said to be compulsorily acquired. That leaves the question of the applicability of Clause (1) of Article 31. That clause merely provides that no person shall be deprived of his property save by authority of law. Article 13 of the Constitution provides that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.The Bombay District Municipal Act, 1901, as adapted, was an existing law at the time of the commencement of the Constitution. Such law, to the extent that it is inconsistent with the provisions of Part III, would be void. Part III includes Article 19(l)(f). Any existing law which would violate Article 19(1)(f) would be void to the extent of such violation the result of it is that the law which authorises deprivation of property of a person must be a valid law. If that law violates the provisions of Article 19(1)(f), it would be void to the extent of such violation and the authority conferred by any provision which is so violative would be DO authority in law at all. When examining the provisions of Article 31(1), we again fall back upon the provisions of Article 19(1)(f). When we come to Article 19(1)(f), it confers upon all citizens the right to acquire, hold and dispose of property, the right to hold property includes the right to enjoy the property. As a result of a street being declared to be a public street, there is a limitation imposed upon this right the right to hold property is affected the right to enjoy property is affected. the surface of the road and certain amount of soil beneath it and certain amount of space above it become vested in the municipality and belong to the municipality by virtue of the provisions of Section 50, Sub-section (2). the fundamental right guaranteed under Article 19(1)(f) would be violated if Article 19(1)(f) stood by itself. There is a provision in Clause (5) of Article 19 which lays down that nothing in Clauses (d), (e) and (f) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. In view of this clause, we will have to consider whether the section which is impugned imposes reasonable restrictions on the exercise of the right to acquire, hold and dispose of property in the interest of the general public. If so, it could not be said that the provision in any sense falls within the mischief of Article 13 of the Constitution or in any sense void the Bombay 'District Municipal Act, 1901, was an act enacted for the better management of municipal affairs in mofussil towns and cities. As its preamble shows, it was an amending and consolidating Act the provisions of the Act have been enacted for the well-being of the society. They have been enacted in the interest of public health, convenience and safety the provisions of the Act relating to public streets have been enacted with a view to protect the public, with a view to provide convenience to the public and with a view to provide amenities. Section 54 of the Bombay District Municipal Act, 1901, lays down that it shall be the duty of every municipality to make reasonable provisions for lighting public streets, watering public streets, cleansing public streets, removing obstructions and projections in public streets, constructing, altering and maintaining public streets and naming streets. Section 90 provides that it would be lawful for the municipality to lay down and make new public streets and to widen, open, enlarge Or otherwise improve any such streets. These provisions indicate that variousduties are cast upon the municipality in connection with public streets. Those duties are so imposed with a view to provide for the health, safety and convenience of the public. The restrictions imposed are restrictions clearly intended for the benefit of the public. Where the public have access, hygenic conditions have to be provided. The place is required, to be 'cleaned- the place is required to be duly watered so that a large quantity of dust is not raised. During the hours of, darkness, it is necessary that lights should be provided so that people may travel safely without fear the real point that we will have to consider in this connection is whether the restrictions so imposed are reasonable restrictions. From the point of view of reasonableness, we will have to consider the extent of the deprivation of rights and the extent Of the restrictions imposed. This brings us back to the definition of the word 'street'. When the owner of a road or footway or passage, which is temporarily accessible to the public, is deprived permanently of some of his rights in connection with such road, footway or passage and when the same is permanently opened up to the public, a question will arise whether such a deprivation and such a restriction could be regarded in any sense as reasonable. In our view, where a road, footway or passage is only temporarily accessible to the public, the conversion of the same into a public street, thereby giving a right of way over the same to the public permanently and at all times, cannot bo regarded as falling within the ambit of reasonable restrictions on the exercise of the right conferred by Article 19(1)(f) of the Constitution. Such a restriction must be regarded as being violative of the fundamental right guaranteed under Article 19(1)(f) and would be void under the provisions contained in Article 13 of the Constitution.

9. We shall next consider whether when any road, footway or passage is permanently accessible to the public, it could be said that by converting the same into a public street, the provisions of Article 19(1)(f) are violated. When any road, footway or passage is permanently accessible to the public, by declaring the same as a public street, no, higher rights as such are given to the public. There is no greater burden imposed upon the owner so, far as the user of the road as a public street is concerned. The road being permanently accessible to, the public, it is but necessary, in the public interest, to provide for health, convenience and safety of those who have the right to use such road, footway or passage. Once the public have acquired a right permanently to use such road, footway or passage, it would be in the interest of the general public that some restrictions should be imposed on the owner in the exercise of his right to. hold such property. The deprivation contemplated by Section 50(2) is only limited to the extent that it is necessary for the purpose of securing due management and control of such street and for due provision for public health, convenience and safety. It cannot be said that the restrictions so imposed are not reasonable or not in the interest of the general public.

10. What we have stated above applies equally to squares, courts and alleys. In our view, if such squares, courts and alleys are accessibletemporarily to the public, the restrictions sought to be imposed by Section 50(2) could not be regarded as reasonable. If the same are accessible permanently to the public, .the restrictions would be reasonable and in the interests of the general public.

(11) We shall now deal with the second part of the definition of the expression 'street.' That definition embraces every vacant space which satisfies the requirements therein provided, even though such vacant space may be private property and may be partly or wholly obstructed by any gate, post, chain or other barrier the two conditions which are requisite are U) that houses, shops, or other buildings must abut thereon, and (2) that it must be used by any person as a means of access to any public place or. thoroughfare or from any public place or thoroughfare. Such person may be tile occupier of such building or may not be the occupier of such building. Then follows an over-riding clause which lays down that it shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid. The contemplates the right of an occupier of such building to prevent all other persons from using the vacant space at all hours. It means that if an occupier of such building could exclude all other persons from using such vacant space at all hours, then it could not form part of a street. It seems to us from the words used in this provision that if a person other than the occupier of any such building had such a right at all hours to prevent all other persons from using such vacant space, then the excluding provision would not apply and the vacant space, if it satisfied the other requirements of the section, would be considered to be a street. It further follows that if the occupier of such building had a right, not at all hours, but during some hours, to prevent, or on some occasions to prevent, other persons from using the vacant space, then it would nevertheless be considered as a street, provided the other conditions are satisfied the result is that a vacant space owned by a private individual which provides means of access to any public place or thoroughfare pr from, any public place or thoroughfare, is liable to be declared to be a public street with the consequences which follow therefrom. In such cases, the restrictions sought to be imposed by Section 90, Sub-section (5) cannot be regarded as reasonable in the interest of the general public. It is not possible to sever other, cases enbraced by the second part of the definition from cases of the type which have been suggested by us, with the result that when there is a street which is covered by the second part of the definition and the same is sought to be declared to be a public street under the provisions of Section 90, Sub-section (5) the same would violate the fundamental rights guaranteed under Article 19(1)(f) of the Constitution, As regards the first part o the definition, it is possible to sever the part which relates to roads, footway^, squares, courts, alleys or passages, accessible permanently to the public from the roads, footways, squares, courts, alleys or passages accessible temporarily to the public. To the extent that trie-provisions relate to roads, footways, squares, courts, alleys or passages accessible permanently to (Re-public, we hold that the provisions of Section 90(5) do not violate the fundamental rights under Part III of the Constitution and that they are valid. To the extent that the provisions cover roads, footways, squares, courts, alleys or passages accessible temporarily to the public, they violate such fundamental rights and are invalid.

12. It was urged by Mr. Thakore that the power conferred under Section 90, Sub-section (5) could only be exercised if the owner of the street or majority of the several owners of such street do not lodge any objection to such declaration. He urges that in a democracy, there is the rule of the majority and if the majority do not object, then there is no reason why the municipality should not declare such street to be a public street with all the consequences that Row therefrom. Here it is a question of depriving a person of his fundamental right to hold property. In considering such fundamental right and interference therewith, one cannot be guided by views which others may take in respect of such rights. What we have to consider is whether the restrictions which have been imposed are reasonable in the interest of the general public and not what some members of that public or all other members of the public think about it. Apart from anything else, what is provided by Sub-clause (5) is that within one month after the notice referred to in that section has been put up, the majority of the several owners should lodge their objections thereto. If they lodge such objections, then the municipality is precluded from exercising the power to declare a street to be a public street. This implies a positive act to be done by such several owners within the period therein mentioned. It may be that some or all such owners who constitute the majority may be under disability, they may not be available, they may not be aware of the notice having been issued and fixed as provided in Sub-clause (5). There might be a variety of reasons which may have precluded or prevented such majority from lodging the objection. This, apart from anything else, would hardly constitute any safeguard. Mr. Thakore is right when he says that what is provided by this subsection is a condition to the exercise of the right of the municipality to declare a street to be a public street. In other words, if the majority lodge objections, then there is an embargo placed by the legislature on the exercise of such, right to declare a street to be a public street, It was urged on the other hand that this is a procedural right and it was urged that the provision is not reasonable. Tt was urged that there was no opportunity afforded to the person lodging the objection of being heard in connection therewith. It was urged that the principles of natural justice would not be observed. In our view, the municipality has not to consider the reasons for the objections and determine whether the objections were good or bad. What the section provides is that the majority should object. No grounds are required to he stated for the purpose. The objection may not be founded on any reason. The objection may be purely sentimental. If the majority of the owners lodge an objection to such declaration, then, irrespective of the reasons which might have actuated the owners in lodging such objection, the objection would prevail, and the municipality would be precluded from declaring such street to be a public street the learned Advocate General Urged before us that this right to object constituted a reasonable safeguard. We arc of the view that this right to object is hardly any safeguard to a person whose property and rights have been divested or taken away.

13. There is one more point which has been canvassed before us. That relates to the provisions contained in Article 31, Clause (5) (a) Clause (5) (a) says that nothing in Clause (2) of Article 31 shall affect the provisions of any existing law other than a law to which the provisions of Clause (6) apply. When we turn to Clause (6) it provides as follows:

'Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification, and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of Clause (2) of this Article or has contravened the provisions of subsection (2) of Section 299 of the Government of India Act, 1935.'

The properties in question are situate within the limits of the Surendranagar Joint Municipality. The area falling within the limits of the Surendranagar Joint Municipality was at one time situate in the State of Saurashtra. The provisions of the Bombay District Municipal Act, 1901, were made, for the first time, applicable to the area comprised in the municipal limits of Surendranagar On 1st July 1949- That was the first time when the provisions of that Act as adapted were extended to that area. The enactment whereunder these provisions were applied to these territories is dated 23rd June 1949 and it came into force, as stated earlier, on 1st July 1949. It was existing law at the date when the Constitution came into force, but eighteen months had not elapsed before the Constitution came into force, with the result that it would not he a law enacted not more than eighteen months before the commencement of the Constitution within the meaning of Clause (6) of Article 31 the provisions of Clause (5) (a) would not become applicable because that provision is contained in an existing law other than a law to which the provisions of Clause (6) apply.

14. It was contended by Mr. Shah that having regard to the provisions of Section 90(1) of the Bombay District Municipal Act, 1901, as adapted, the municipality had acquired a right over the land over which the street had been declared as a public street and he said that there was a total deprivation of his rights in the land over which the street in question lay. That section provides as under:

'It shall be lawful for the Municipality to lay out and make new public streets, and to construct tunnels and other works subsidiary to the same, and to widen, open, enlarge or otherwise improve any such streets, and to turn, divert, discontinue or stop up any such streets, and, subjectto the provisions of sub-section (2) of Section 40 to lease or sell any such land, theretofore used or acquired by the Municipality for the purposes of such streets as may not be required for any public street or for any other purposes of this Act.'

This section refers to the power of the municipality to lay out public streets and make new public streets and to widen, open, enlarge or otherwise improve such public streets and to turn, divert, discontinue or stop up any such public streets. It is urged that when such discontinuance takes place, the municipality is empowered to lease or sell any such land and it is urged that after a street is declared to be a public street, if the municipality elects to discontinue such street as a public street, then it would acquire a right to lease or sell the land over which the street has been laid or over which there is a street and that there would be a total deprivation of the right of the owner of the land comprising the street. The words 'to lease or sell any such land' appearing in Section 90(1) have been followed by the words

'theretofore used or acquired by the municipality for the purposes of such streets as may not be required for any public street or for any other purposes of this Act.'

Now the words 'theretofore used by the municipality for the purposes of such streets' indicate that the right to lease or sell such land could only be exercised in respect of such land as had theretofore been used by the municipality for the purposes of such street. That would refer to the land belonging to the municipality which had been used by the municipality for the purposes of any such street. The words 'acquired by the municipality for the purposes of such streets' also indicate that the ownership of the land is with the municipality. It is only such land whose ownership belongs to the municipality which could be leased or sold out if the same was not required for any public street Or for any other purposes of the Act by the municipality. In our view, these words relating to the giving of a lease in respect of such land or the selling of the land do not apply to streets, the lands whereof belong to private individuals and which have been acquired by the municipality in the exercise of the powers conferred by Section 90, Sub-section (5). The rights conferred upon the municipality under the provisions of Section 50, Sub-section (2) are not enlarged by virtue of what is stated in Section 90(1) of the Act.

15. In the result, our answer to the question whether the provisions of Section 90, Sub-section (5) of the Bombay District Municipal Act, 1901, as adopted, are valid or not, is that to the extent that Section 90, Sub-section (5) refers to streets as implying any road, footway, square, court, alley or passage accessible temporarily to the public and to the extent that the expression 'street' includes vacant space of the nature set out in the second part of the definition of the word 'street', the provisions violate the fundamental rights guaranteed under Article 19(1)(f) of the Constitution and are invalid. To the extent that the provisions refer to any road, footway, square, court, alley or passage accessible permanently to the public, they arevalid. We direct that the costs of the Reference to be costs in the appeal.


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