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Diwanji Gandaji Jadev Vs. the Kadi Municipality - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR10
AppellantDiwanji Gandaji Jadev
RespondentThe Kadi Municipality
Cases ReferredTalakchand v. Dhoraji Municipality A.I.R.
Excerpt:
.....on april 2, 1971 produced at annexure c with the affidavit-in-reply clearly show that part of the public street viz. '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 122 of the bombay district municipal act. sub-section (4) of this provision states, inter alia, that the municipality can allow any temporary occupation of or erections in any public street on occasions of festivals and ceremonies, or the piling of fuel in by-streets and spaces for not more than four days and in such manner as not to inconvenience the public or any individual, lot view of the casual nature and very..........a part of the public street can be discontinued or stopped; and secondly whether such part of public street can be discontinued or stopped for the purpose of raising structure like shops thereon by the municipality and letting them out so as to augment municipal revenues. these two questions arise in the following facts.2. the petitioner is a permanent resident of and carries on business at kadi; and the opposite party is the municipality of kadi. there is a road leading to railway station of kadi 86 feet wide known as station road. the said road admittedly vests in the municipality and is a public street or a public road. the standing committee of the municipality passed a resolution on december 21, 1970 deciding to construct cabins for raising revenue of the municipality. these.....
Judgment:

D.P. Desai, J.

1. This petition and the arguments advanced in support of it have raised firstly the question whether under Section 146(1) of the Gujarat Municipalities Act, 1993 (hereafter referred to as 'the Act'), a part of the public street can be discontinued or stopped; and secondly whether such part of public street can be discontinued or stopped for the purpose of raising structure like shops thereon by the municipality and letting them out so as to augment municipal revenues. These two questions arise in the following facts.

2. The petitioner is a permanent resident of and carries on business at Kadi; and the opposite party is the municipality of Kadi. There is a road leading to railway station of Kadi 86 feet wide known as station road. The said road admittedly vests in the municipality and is a public street or a public road. The standing committee of the municipality passed a resolution on December 21, 1970 deciding to construct cabins for raising revenue of the municipality. These cabins are proposed to be constructed just adjoining the compound of S.T. bus stand, Kadi. After the said resolution. Notification No. 7171-70 was published by the municipality on April 20, 1971 inviting tenders for the purpose of carrying out construction of the proposed cabins. Pamphlets were also issued by the municipality informing the public that 20 shops are to be rented by the municipality and possession will be handed over in the month of August, 1971. The municipality also informed the persons desirous of keeping the shops on rent that they should deposit Rs. 1,500/- on or before June 30, 1971. This act of the municipality is challenged as illegal and ultra vires on the ground that the municipality 'has no statutory authority to divert a portion of the public road for the purpose of construction-shops.' It was also alleged that the proposed construction of shops would obstruct the petitioner and public at large to the access to the road. An averment is made that the fundamental right of the petitioner guaranteed by Article 19(1)(f) of the Constitution of India is violated. At the hearing of this petitioner, however, no reference was made to this so-called violation; and that averment has remained unsubstantiated, by proper particulars as well as by arguments. On these grounds of which really speaking first one only survives, the petitioner seeks a writ of certiorari or any other appropriate writ, direction or order quashing the aforesaid resolution of December 21, 1970 and the subsequent notification of April 20, 1971 and the pamphlets of the same date. He also seeks permanent injunction restraining the municipality from constructing any cabins or shops on the land forming part of the station road.

3. The affidavit-in-reply filed by the Chief Officer of the municipality discloses that the resolution to which reference was made in the petition was really a proposal and it was to be put into effect after the necessary procedure was gone through. It was also averred that the cabins could be constructed only if that portion of the road on which cabins were to be constructed was closed as public street and for that purpose a public notice was published on January 20, 1971 notifying the specified portion of the road which was to be closed as a public street and inviting objections thereon by the members of the general public. A copy of this notice is produced at Annexure A With the affidavit-in-reply. It was further alleged that the petitioner filed his objections in response to this notice and, thereafter the proposal and-the objections were considered by the Board which, by its Resolution No. 5 dated April 2, 1971 ruled-out the objections and sanctioned the proposal to close down a part of the public street. A copy of the said resolution is annexed at Annexure C with the affidavit-in-reply. The allegation that the municipality had no power to discontinue or stop a part of the public street was refuted and it was averred that the act done by the municipality was lawful and was done after observing the formalities laid down by the Act. The locus standi of the petitioner and suppression of material facts were two more grounds pleaded in the affidavit-in-reply in order to non-suit the petitioner.

4. The relevant provisions of the Act may now be reproduced:

65. (1) A municipality shall be competent, subject to the restriction contained in Sub-section (2), to lease, sell or otherwise transfer any moveable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes.

(2) In the case of every lease or sale of land under Sub-section (1) of Section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees, the previous permission of the State Government is required.

Provided that in the case of a lease or sale of land under Sub-section (1) of Section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under Section 148.

(3) In the case:

(a) of a lease for a period exceeding one year or of a sale of other transfer of immovable property the market value of which does not exceed one lakh of rupees or contract for the purchase of any immovable property;

(b) of every contract which will involve expenditure not covered by a budget grant;

(c) of every contract the performance of which cannot be completed within the official year current at the date of the contract; the sanction of the municipality by a resolution passed at a general meeting is required.

x x x x80. (1) x x x(2) All property of the nature specified in the clauses to this section, not being specially reserved by the State Government, shall be vested in and belong to the municipality, and shall, together with all other property of whatever nature or kind, which may become vested in the municipality, be under its direction management and control, and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act;

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:

x x x x146. (1) It shall be lawful for a municipality to lay out and make new public streets; to construct tunnels and other works subsidiary to public street; to widen, open, enlarge or otherwise improve, and to turn, divert, extend, discontinue or stop up any public street; and, subject to the provisions of Sub-section (2) of Section 65 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;

Provided that no proposal for permanently discontinuing any public street shall be sanctioned by a municipality unless one month at least before the meeting at which the proposal is decided, a notice signed by the chief officer has been put up on the notice board in the office of the municipality and in the street or part of a street which is proposed to be so discontinued informing the residents of the said proposal nor until the objections, if any, to the said proposal made in writing at any time before the day of the said meeting have been received and considered by the municipality.

(2) In laying out, making, burning, diverting, extending, widening, opening, enlarging or otherwise improving any public street, in addition to the land required for the carriage-way and foot-ways and drains thereof, the municipality may acquire the land required for the construction of houses and buildings to form the said street; and, subject to the provisions contained in Sub-section (2) of Section 65, may sell and dispose of such additional land in perpetuity or on lease for a term of years, with such stipulations as to the class and description of houses or buildings to be erected thereon as it may think fit.

5. In the present case, there is no controversy about the fact that the procedure as prescribed by Section 146(1) proviso was followed. Sub-section (1) of Section 146 in terms confers a power on the municipality, inter alia, in case of discontinuance or stoppage of any public street '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. (Emphasis supplied). This power is, of course, subject to further limitation contained in Sub-section (2) of Section 65 of the Act. In the present case, the resolution of the municipality dated December 21, 1970 at Annexure B annexed to the petition and the final resolution of the municipality after hearing the objections passed on April 2, 1971 produced at Annexure C with the affidavit-in-reply clearly show that part of the public street viz. station road in the present case is stopped as public street. Ex-facie, Sub-section (1) of Section 146 confers power on the municipality to sell or lease any land therefore used as public street and as may not be required for any public street or for any other purposes of this Act. Of course, this power is subject to the provisions of Section 65(2). Subject to the aforesaid limitations, there is no other restriction or limitation on the power of the municipality to lease or sell any land used for the purpose of public street after the closure thereof (the word 'closure' is used advisedly in order to cover both the aspects of discontinuance or stoppage) if such land is not required for any public street or any other purposes of the Act.

5A. Reliance on behalf of the petitioner for the restriction of the powers of the municipality under Section 146(1), as to closure of public streets, has been placed on a decision of a Division Bench of the Bombay High Court reported as Emperor v. Vishvanath : AIR1926Bom535 . In that case three persons were convicted of an offence punishable under Section 61(f) of the Bombay District Police Act. The offence was one of having kept logs of timber on a public street and causing obstruction thereby. The defence was that the municipality had authorised timber dealers to use a strip of the public street for the purpose of exposing timber for sale and that this was being done for past 40 years. The question for decision to put in the words of the Division Bench was 'whether the municipality had any proper statutory authority to divert a portion of a public street for the purpose of exposing timber for sale in the way that has been done.' (Emphasis supplied). The contention put forward on behalf of the defence was that the municipality under Section 90 of the Bombay District Municipal Act, 1901 (hereafter referred to as 'the District Act') had power to discontinue or stop a part of such a public street and therefore, there was no objection to their allow a strip of a public street to be used as market for sale of timber. While dealing with this argument, it was observed that the important thing to be remembered was that the public street are vested in the municipality for the purpose of being maintained as public streets under Section 50 of the District Act, which inter alia, stated the lands of the public street having so vested, shall be held and applied by them as trustees, subject to the provisions and for the purposes of the Act. The provisions of Section 122 of the District Act permitting temporary use of the public street for private purpose were also considered and then it was observed; '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 122 of the Bombay District Municipal Act.' It may be observed that in that case, the act of the municipality in authorising the timber dealers to use a strip of street land for the purpose of exposing timber for sale was by itself sought to be treated as an act of closure of the street. That contention did not find favour with the Division Bench in view of the provisions of Section 122 of the District Act which correspond to Section 185 of the present Act. Then some observations are made as to the scope of Section 90 of the District Act; and they are as under:

Then, coming to Section 99 of the Bombay District Municipal Act, it obviously is dealing with the question of providing proper highways and thoroughfares in the Municipal area, and since power is given to widen, open or enlarge or otherwise improve streets, a corresponding power is given to turn, divert, discontinue or stop up streets. That power would ordinarily be meant to enable the Municipality to provide a substituted street which would be an improvement on an old street, and then to stop or discontinue that old street. It seems to me that it is preventing the proper meaning of the section to say that it contemplates a case of stopping up a portion of a street, so as to provide a market, as has been done in this case.

(Emphasis supplied)

As to the scope of Section 90 of the District Act which corresponds to Section 146 of the present Act, the aforesaid observations have been relied upon. Two contentions were based upon these observations; and they are:

(1) A part of the public street could never be closed.

(2) Even if a public street or its part can be closed, it cannot be done for the purpose of construction of shops.

6. There is hardly any scope for the first contention, if we examine the provisions of the present Act. It is true that the words 'part of public Street' are not to be found in Section 146(1). But that does not amount to negation of power to close part of a public street. The simple reason is that the larger power to close a public street would include within its folds the power to close part thereof. It is also significant to find that proviso to Section 146(1) contemplates inter alia putting up of the proposal of closure 'in the street or part of a street which is proposed to be discontinued...'.

7. Coming to the second contention, one essential thing should be kept in mind. In the aforesaid decision of the Bombay High Court, the question as to the power of the municipality to lease out land which formed part of a public street after its closure in accordance with law never arose. On the contrary in that case the use of an existing public street was diverted by authorising its user for the purpose of storing timber for sale. Therefore, that was a case where the user of an existing street was diverted or changed. The prosecution of the three accused in that case and the conviction for the offence under Section 61(f) of the Bombay District Police Act were based on causing obstruction a street by keeping logs of timber for an unreasonably long time or by exposing anything for sale or setting out anything for sale in any way whatsoever that causes obstruction. Thus, that was a case of an obstruction caused on an existing public street. If the strip of land in that case which was used for storing of timber for sale was discontinued or stopped by the municipality prior to the prosecution and it was kept under a lease or a licence, no question of any offence would have arisen, for the simple reason that the strip of land had ceased to be apart of the public street. That was not the defence. The defence was that the municipality had authorised timber-dealers to use the strip of the street for the purpose of exposing timber for sale; and the High Court was informed that this had been done for forty years. Therefore, the question in that case which arose was whether the municipality had any proper statutory authority to divert a portion of a public street for the purpose of exposing timber for sale in the way that has been done. The accused relied upon Section 90 of the District Act in older to spell out power for the municipality to divert a portion of an existing public street for the aforesaid purpose. This contention was negatived by reference to Section 50 of the District Act which expressly declared that the public streets vested in the municipality shall be applied by it as trustees subject to the provisions and for the purposes of the Act. The Division Bench said:

Therefore, it rests upon any one 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.

(Emphasis supplied)

Section 122 of the District Act was referred to by the Division Bench. Sub-section (4) of this provision states, inter alia, that the municipality can allow any temporary occupation of or erections in any public street on occasions of festivals and ceremonies, or the piling of fuel in by-streets and spaces for not more than four days and in such manner as not to inconvenience the public or any individual, lot view of the casual nature and very short duration of the purpose for which a part of the public street can be allowed to used, it was held that Section 122(4) raised a strong presumption that the Legislature did not intend use of the power conferred by Section 90 so as to contravene the legislative intention shown by Section 122 of the District Act. Fawcett, J. speaking for the Division Bench stated:

I also think that the Act contains clear provisions, which show that ordinarily a Municipality should not allow a permanent obstruction upon any public street vested in the Municipality.

(Emphasis supplied)

Thus, in the facts of that case, the closure of a part of the public street for the purpose of authorising user of that portion for storing of timber for sale for an indefinite period was held to contravene the legislative intent disclosed by Section 122.

8. The observations of the Division Bench with regard to Section 90 should be read in this context. The Court in that case at two places disapproved of the manner in which the strip of land was authorised to be used (evidently without discontinuing or stopping the strip of land as part of public street).

9. Under the present Act, the Legislature having conferred power to discontinue or stop a public street on the municipality, in express terms conferred power to lease or sell such land. The only limitations on this power are (1) the land is not required for any public street or for any other purposes of the Act, and (2) the previous permission of the State Government is obtained as contemplated by Section 65(2). There is no reason why a third limitation should now be engrafted on this provision; more so when the language of the provision does not seek to place any other limitations in case of lease of land after closure of a public street.

10. It is interesting to find that the provisions of Sections 90 and 40 of the District Act came to be amended by Act No. 26 of 1930 after the aforesaid decision of the Division Bench. The words 'to lease' were added in Section 90 which previously contained the words 'to sell' only. While amending the provisions of Section 40(2) of the District Act, the Amending Act provided separately for lease or sale of land under Sub-section (1) of Section 90 and made the power to lease or sell that land subject to the sanction of the Commissioner irrespective of the period of lease. Section 40(2) containing the amended portion into brackets would show this. This section reads as under:

40. (2) In the case (of every lease or sale of land under Sub-section (1) of Section 90 and) of every lease of immovable property for a term exceeding seven years, and of every sale or other transfer of any such property the previous sanction of the Commissioner is required.

This bracketed portion was not there prior to the amendment of 1930. It appears that the amending Act made an enabling provision with regard to lease of the land under Section 90(1) after the aforesaid decision of the Division Bench so that there may not be scope for any doubt on this question. In view of this amendment also, the observations quoted above from the Division Bench judgment would not govern the present case.

11. Now, if a part of the public street can be closed and the excess land is not required for any public street or for any other purpose of the Act, there is no reason why the municipality should be deprived of the power to dispose of the said land by lease or sale, of course subject to the limitations contained in Section 65(2) of the present Act.

12. In the present case the municipality does not want to lease out the Open land in question; but it wants to construct shops thereon which would serve the purpose of a shopping centre. If the municipality has power to lease out open land as demonstrated above, it can certainly construct shops on this land and lease them out. Therefore, the second contention must fail.

13. It is thus clear that the basis on which the action of the municipality is challenged in the present case, fails. Reliance on behalf of the petitioner was also placed on Municipal Committee, Delhi v. Mohammed Ibrahim A.I.R 1935 Lahore 196. In that case also a permanent obstruction was put in an existing public street depriving public eternally of the free use of the street to which they were otherwise entitled. It is clear that if once the public street is closed, there would be no question of deprivation of the public of the free use of the street; more so when the Legislature has provided for the procedure to be followed by the municipality of inviting objections and consideration thereof in respect of discontinuance of any public street on permanent basis, as contemplated by the proviso to Section 146. The Lahore decision purported to follow the observations of the Division Bench of the Bombay High Court in Emperor v. Vishvanath (supra) to the effect that the municipality had no authority to allow a portion of a public street to be used as a market although under Section 90 of the District Act, the municipality had authority to discontinue or close any public street and that ordinarily the municipality should not allow a permanent obstruction on any such street. Similarly, the decision in Talakchand v. Dhoraji Municipality A.I.R. 1955 Saurashtra 63 also dealt with covering of a portion of a street by putting up a permanent structure thereon. The said decision has reference to the rights of the owners of land adjoining to the street which would be obstructed by such permanent structure. This is not the case in the present petition. The petitioner is not an owner of adjoining land. The petition must fail.

14. As this petition fails on merits, the following preliminary objections taken on behalf of the opposite-party-municipality do not survive.

(1) The petitioner has no locus standi to file tills petition and claim the reliefs prayed for.

(2) In the facts and averments made in the petition it will not be possible to issue a writ of certiorari prayed for.

(3) The petitioner is guilty of suppressing material facts and has made misleading statements; and, therefore, reliefs should be refused.

(4) The petition involves disputed questions of fact.

In the result, the petition fails and is dismissed. Rule discharged with costs.


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