N.H. Bhatt, J.
1. 1. to. 6. x x x
7. This brings me to the second important question arising in this second appeal. The important question in this appeal is whether the municipality has got any powers to, let put the public street land. As noted above, the plaintiff asserted in the plaint that it was never lawful for the municipality to let out the public street land whereas the defendants on the other hand contended that the defendant No. 1 could. So the first question to be decided by me is whether there is an absolute ban on the letting out of this street land. The extreme proposition put forward by the plaintiff is difficult to be sustained in view of the legal position, though it is to be conceded forthwith that under Section 80 of the Act, all property specified in various clauses of Sub-section (2), which includes all public streets and pavements, which are vested in and belong to the municipality, are to be held by the municipality and applied by the municipality as a trustee subject to the provisions and for the purposes of this Act. This means that ordinarily, public streets are to be used by the municipality as public streets and public streets, as the definition of the term 'public street' in Section 2(22) indicates, are meant for the public's right of way. So ordinarily, such street lands are to be used by the muncipality as street lands, In the case of Emperor v. Vishvanath Kana Parpe AIR 1926 Bom 535, the Division Bench of the Bombay High Court, whose judgment is the law for this court, has held as follows :--
'Therefore, a strong presumption arises that the legislature did not intend, by the general power it gives to the municipality to discontinue or stop up public streets, that they should, use that power for a purpose which contravenes the intention shown by Section 123 of the Bombay District Municipal Act,'
No doubt before the Bombay High Court, Section 50 of the District Municipal Act, 1901 was a provision to be dealt with, but Section 50 of that Act and Section 80 of the Gujarat Municipalities Act, 1953 are practically identical. So what the Bombay High Court has stated about Section 50 of the Bombay District Municipal Act, 1901 will with equal force apply to Section 80 of the Gujarat Municipalities Act. The Bombay High Court in that case has held that 'public streets are vested in the municipality for the purpose of being maintained as public streets under Section 50 of the Bombay District Municipal Act and, that section expressly declare that public streets so vested in them shall be applied by them as trustees, subject to the provisions and for the purposes of the Act'. The Bombay High Court ultimately then held as follows and it is very material for our purposes:--
'Therefore, it rests upon anyone who supports the action of the municipality to show that it had statutory authority to divert a portion of a public street in the manner that has been done.'
In that case, part of the public street was given by the municipality for the purpose of doing timber business and that was being done for at least 50 years prior to the date of the decision in the year 1926.
8. Similarly, the Division Bench of this court in the case of Parasram Manjimal v. Kalol Municipality, Kalol : AIR1972Guj54 also in para 7 of the reported judgment held as follows :--
'7. The present case with which we are concerned is also in respect of obstructions and encroachments upon public streets and it empowers as well as lays down a duty on the municipalities and their officers to take necessary action under Sub-sections (1) and (2) thereof in respect of an obstruction or encroachment made on the public street. This is as stated earlier a power of the municipality coupled with duty and the municipalities are not entitled under law to lease out permanently or for a considerable period the land forming part of the public street and the action of the municipality in leasing out such land would be clearly contrary to law and without any authority or jurisdiction. And if such obstructions or encroachment remain on public streets, not only the municipality and its officers are empowered to take necessary action, but they would be under the duty to remove such encroachments or obstructions.....'
This judgment was relied, upon by the respondent No. 1 herein, the original plaintiff, for the purpose of supporting his basic case in the plaint that under no circumstances the municipality can lease out a part of the public street land. The observations made in this judgment, relying upon the judgment of the Bombay High Court in the case of Emperor v. Vishwanath (AIR 1926 Bom 535). (supra), try to lend support to this inference, but there the municipality itself was an aggrieved party and the period of lease had expired and the alleged obstruction was sought to be removed by the municipality by recourse to Section 185 of the Act. So, there was no occasion for the Division Bench to consider an exceptional situation in which the Act itself confers a power on the municipality to lease out the street lands, As I am told that there is no clear judgment in this regard and as the Bombay High Court's judgment referred to above and also the Division Bench judgment of this court referred to above, were essentially concerning themselves with the encroachment, the question of the power of the municipality to let out the part of the street lands was not directly on the anvil. I, therefore, propose to examine the law on the subject threadbare.
9. Apart from Section 80 referred to above from which an inference could be deduced that ordinarily the municipality shall not let out the land of the street, which is vested in it, if the very statutory provision envisaged lease etc. in certain situations, then all these provisions are to be harmoniously construed so as to avoid the charge of any provision being held otiose. This takes us to Section 146 of the Gujarat Municipalities Act, which directly deals with the public streets. Section 146(1) itself specifically says that subject to the provisions of Subsection (2) of Section 65, it is lawful for a municipality to lease or sell any such land therefore 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. There is, therefore, an express power in Section 146(1) of the Act for the municipality to lease the street land. The adjective 'such' appearing in the second part of Sub-section (1) is a demonstrative adjective referring to the land referred to earlier and the land referred to in the first part of Sub-section (1) is the street land. Therefore, the latter part of Section 146(1) of the Act negatives the absolute proposition put forward by the plaintiff and accepted by the courts below. However, in order to reconcile the spirit of the Act as interpreted by the Bombay High Court and the Division Bench of this Court, the lease of such street land is hedged or circumscribed or limited by various conditions. Those conditions are as follow:--
(1) The public street land is meant for the public to exercise their right of way as per the definition of the term public streets in Section 2(22);.
(2) the lease of the street land is to be done by the municipality if and only if the land is not required for any public street or for any other purposes of the Act vide the latter part of Section 146(1);
(3) such lease of the street land can be granted subject to the provisions of Sub-section (2) of Section 65 of the Act and the said sub-section clearly lays down that lease of land under Section 146(1) of the Act has to be effected only after 'the previous permission of the State Government If without the previous permission of the Government the municipality on its own leases out the land, it becomes an act without any authority of law and therefore, non est and is not to be taken any cognizance of by a court of law;
(4) A street land declared to be a public street land under Section 148 of the Act can never be let out because the proviso to Section 65(2) enjoins upon the Government that Government shall not grant such permission if such street land forms a street or part of a street, which has been declared to be a public street under Section 148 of the Act. Section 148 clearly mentions that the municipality, acting through its Executive Committee, after following the procedure laid down there, can declare the private street to be a public street. In other words, a private property, over which public have access and which, therefore, is declared by the municipality as a public street cannot be the subject matter of lease by the municipality because of the legislative mandate contained in the proviso appended to Sub-section (2) of Section 65 of the Act.
10. In my view, the legal position is too clear to be subjected to any mincing. Mr. Abichandani, however, urged that Section 65(3) clearly did away with or considerably diluted the rigorous provisions of Section 65(2) including its proviso wherever applicable. Sub-section (3) of Section 65 provides that if the lease of the municipal property, including the lease of the street land under Section 148 read with Section 65(1) of the Act is exceeding one year, then sanction of the Municipality by a resolution passed in the General Board's meeting is essential. Mr. Abichandani wanted to interpret this by saying that in all other cases, the Municipality, is not required to do anything, but forthwith let out. It is difficult to understand the argument advanced by Mr. Abichandani, with respect I say. Subsection (3) of Section 65 has got a different purpose, which is obvious. The Municipal functions are ordinarily conducted by the Executive Committee, or a specially constituted Committee is assigned specific functions. All that Sub-section (3) provides is that it the Municipal property, which could be let out lawfully under Section 146(1) read with Section 65(1) and (2), is to be let out for a period exceeding one year, then the decision will be only of the General Board, that is, all the councillors of the Municipality, and not by any of its sub-committees. Sub-section (3) cannot be projected into Sub-section (2) in order to whittle down its force. So I hold that ordinarily public street lands are not to be let out as per the policy decision of Section 80 of the Act. However, if the plans are laid well in anticipation of the future development and for the time being a part of the street lands is not used as a public street, the Municipality may lease out such unrequired portions for short periods and if the period of lease is to exceed one year, then the Municipality as a whole body should deliberate and then a decision be taken provided the decision does not fly in the face of Section 65(2) of the Act or does not pertain to a street declared to be a public street under Section 148 of the Act.
11. The reason of not allowing a private street declared to be a public street to be let out is also obvious. The private property over which the public have access can be declared by the Municipality to be a public street, but that would not deprive the owner of its proprietary rights in the soil. In case of such strips of lands declared to be public streets under Section 148 of the Act, only the surface would be belonging to the Municipality and its possession will be limited and that too for the purpose of using it as a public street -- and, therefore, it is provided that such public streets shall not be let out because such letting out would mean an act of interfering with the proprietary rights of the original owner of the soil.
12. In above view of the matter, the (absolute proposition put forward by the [plaintiff in this case is difficult to be sustained and to that extent, the findings of the courts below are required to beset aside.
13. This particular ratio deduced by me will not, however, stand in any good stead to the appellants-defendants, because the evidence of the Chief Officer of the Municipality clearly shows that they have no other document, except the resolution of the Municipality, regarding the letting out of this land. As held by the Division Bench of the Bombay High Court in the case of Emperor v. Viswanath, (AIR 1926 Bom 535) (supra) it is for the person claiming through Municipality and asserting his right to the allegedly lawful lease to establish this exceptional situation, but we may not rest on the presumption or the onus of proof. The evidence of the Chief Officer of the Municipality elicited in the course of the cross-examination itself has made it amply clear that the municipality had assumed that it had power to let out the street land and, therefore, let out different parcels of public street land. It is also implicit in the statement of the Chief Officer that no other document, except the resolution of the municipality, was available and that no permission of the State Government was procured by the Municipal Committee before letting out the public street lands.
14. It was then alleged that even if these appellants are said to have been unauthorisedly in occupation of the public street land, all that can be done in to direct the Municipality by a writ of mandamus or a mandatory injunction to get these lands cleared by persons who were on those lands unauthorisedly. In other words, the argument is that the court on its own has no powers to bring about eviction of these appellants for the benefit of the Municipality. However, it is to be noted that there is the judgment of the Saurashtra High Court in the case of Talakchand Dhanji v. Dhoraji Municipality, AIR 1955 Sau 63 which I respectfully follow and I hold that the court in order to safeguard the special interest of the neighbour can issue a mandatory injunction not only against the Municipality, but against those who are on the lands unauthorisedly through that Municipality. The Division Bench of the Saurashtra High Court has held that invasion of the public street would be a continuous one and it can be remedied only by a mandatory injunction, ordering the removal of the structure itself. Another judgment of the Allahabad High Court in the case of Bagwanti v. Jiuti : AIR1975All341 also refers to the same point. The High Court holds that 'any person who has a house abutting on a public road or land is entitled to access to the road or lane from the house and no person or authority can destroy that right and hence if an obstruction is made by any person or authority of such public way which affects the ingress and egress, a special damage the owner of the property must be presumed'. It was also held that a suit by such a person affected adversely can be maintained for demolition of the construction in question and for an injunction. I, therefore, do not uphold the contention that the mandatory injunction issued against the appellants cannot be granted.
[15 and 16 x x x x x]