R.S. Pathak, C.J.
1. The petitioner occupied a stall situated in the Anaj Mandi, Simla. A notice dated April 23, 1973 was served on him by the Municipal Corporation of Simla, respondent No. 2, declaring that he had without authority constructed a shed on land which belonged either to the Government or to the Municipal Corporation and he was required to demolish the stall. He was warned that on his failure to do so it would be demolished by the Municipal Corporation. Thereafter on November 20, 1973 the Municipal Corporation applied to the Collector of Simla for eviction proceedings against the petitioner under Section 4 of the Himachal Pradesh Public Premises andLand (Eviction and Rent Recovery) Act, 1971, In the eviction proceedings the petitioner contended that he had not encroached upon any land belonging to the Corporation and that the land in question had been in his possession for many years. The parties led evidence before the Collector, in the course of which the Municipal Corporation produced a document purporting to be an order of the Engineer, Roads and Buildings, which recited that the petitioner had constructed the shed without the permission of the Municipal Corporation and that proceedings should be taken against him. The Collector made an order dated January 16, 1975 holding that the petitioner was in unauthorised occupation of public premises and under Section 5 (1) of the aforesaid Act, he directed the petitioner to vacate the premises, failing which, the petitioner wag warned, he would be evicted. The petitioner appealed, and the Divisional Commissioner, Himachal Pradesh has dismissed the appeal by his order dated November 15, 1975. The petitioner now prays for relief under Article 226 of the Constitution.
2. The Divisional Commissioner has found that the land on which the petitioner had raised the shed was a vacant space beside a public street, and was therefore under the control and management of the Municipal Corporation. Consequently, he held, the land could be described as public premises. In view of Section 55 (1) (g) of the Himachal Pradesh Municipal Act, 1968, the Divisional Commissioner held the premises to have vested in, and to be under the management and control of, the Municipal Corporation. Learned counsel for the petitioner contends that the view taken by the Divisional Commissioner proceeds on a manifest error of law. In my opinion, learned counsel is right.
3. It is plain from Sections 4 and 5 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 that an order of eviction is contemplated where a person is in unauthorised occupation of any public premises. By virtue of the definition in Section 2 (e) of the Act, the expression 'public premises' includes premises belonging to a Municipal Corporation. The Divisional Commissioner has held the land to belong to the Municipal Corporation on the footing that it is a vacant space beside a public street. It seems to me that the relevant provisions of the statute have not been noticed in their entirety. In order tovest in the Municipal Corporation under Section 55 (1) (g) of the Himachal Pradesh Municipal Act the land must be a public street. A 'public street,' as defined by Section 2 (22) (b) of the Act, is a street which has been 'levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds' (subject to the exceptions mentioned in the definition) or is a street declared by the committee to be, or becomes under the Act, a public street. To be a 'street,' for the purpose of the Act, it must be, according to Section 2 (22) (a):
'any road, footway, square, court, alley or passage, accessible, whether permanently or temporarily to the public, and 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 occupier 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 Divisional Commissioner has not found the land to be a road, footway, square, court alley or passage. He has treated it as a street on the ground that it is a vacant space beside a public street. Now, not every vacant space can be described as a street. It must be vacant space where 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, except that it cannot include space which the occupier of any such building has a right at all hours to prevent other persons from using. If the land satisfies that description, it can be considered as a 'street' Then every street is not ,a 'public street.' A street must have been levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds, or it must have been declared by the committee, or should have become under the Act, a public street. Those several considerations must be satisfied before the land in question can be identified as a public street. The limited consideration applied by the Divisional Commissioner does not suffice as a basis for the conclusion that the land constitutes a public street. Accordingly, the impugned order of the Divisional Commissioner must be held vitiated by an error of law on the face of the record.
4. Learned counsel for the Municipal Corporation has urged that the case is covered by Section 55 (1) (f) of the Himachal Pradesh Municipal Act. He urges that the land must be deemed to have been transferred to the Municipal Corporation by the Government by operation of law. Learned counsel has failed to place before me any provision of the Himacbal Pradesh Municipal Act or of any other statute under which it can be said that the land stands transferred from the Government to the Municipal Corporation, Reliance has been placed on Zila Parishad v. Ram Khelawan, AIR 1976 All 209, and Shree Madhusudan Mills Ltd. v. Corporation of Calcutta, AIR 1976 Cal 133, but in my opinion both cases are distinguishable. There was a clear statutory provision in each case under which the land in question was found to have vested in the local authority.
5. The petitioner has also sought relief against the order dated April 23, 1973 made by the Municipal Corporation. That order was made under the Himachal Pradesh Municipal Act It appears that proceedings under that Act are not being pursued now against the petitioner. Consequently no relief need be granted against that order.
6. In the circumstances, a writ in the nature of certiorari shall issue quashing the order dated November 15, 1975 made by the Divisional Commissioner, Himachal Pradesh, The Divisional Commissioner will consider the petitioner's appeal afresh and dispose it of in accordance with law. The writ petition is allowed accordingly. There is no order as to costs.