A statutory corporation has no power to act unless conferred by the statute creating it, and the court's decision was influenced by the interpretation of the Bengal Municipal Act.

JUDGMENT

R.C. Mitter, J. - This appeal which is on behalf of the plaintiff must be allowed. The defendant is the Chairman of Municipal Commissioners of the Dacca Municipality. There is public thoroughfare in the town of Dacca called the Chawkbazar road and the plaintiffs house abuts on it. It is still a public thoroughfare. The Municipality has not stopped or diverted any portion thereof. In fact, it is admitted that the whole of it is used as a thoroughfare from morning up to 6 o'clock in the evening and portions of it are used as a public thoroughfare from 6 o'clock in the evening till 6 o'clock in the morning. But what the Municipality has done is this. It has granted either licenses or leases to milkmen and other shop-keepers to use a portion of the public thoroughfare for the purpose of putting their articles there and vending them. This they usually do in pursuance of the said licenses or leases from the Municipality generally from 6 o'clock in the evening till 12 o'clock in the night as is the finding of the Court below. The plaintiffs suit is a very simple suit. He has recited the fact that it is by the permission of the Municipality that the said shop-keepers come there every evening, occupy a portion of the public thoroughfare and sell their articles. In para. 4 of the plaint he stated definitely that this action on the part of the Municipality is ultra vires and in prayers Ka and Kha, the plaintiff wants first of all a declaration that the Municipality has no right to grant licenses of this character to people for selling their articles by occupying portions of the public highway (prayer Ka) and he wants an injunction to restrain the Municipality from granting licenses or leases of this character (prayer , Kka). In its written statement, the Municipality admitted that it has been granting licenses and leases of the character alleged in the plaint and in para. 8 it justified its action by pleading that it was acting intra vires.

2. The learned Munsif made a, decree in favour of the plaintiff. The terms of the decree are as follows:

that the suit be decreed with costs. Plaintiff do get a declaration in terms of the prayer in the plaint. The defendant Municipality be permanently restrained from leasing out the road-side in front of the plaintiff's building to the goalas and other stall-keepers, as prayed for by the plaintiff.

3. The decree is a little defective because if the plaintiff was entitled to the reliefs claimed, the word 'license' also ought to have been included in the terms of the decree, that is to say, the decree ought to have been in this form,

that the plaintiff do get. a declaration in terms of the prayer Ka of the plaint. The defendant Municipality be accordingly restrained from leasing out the roadside land in front of the plaintiff's building or granting licenses of the same to the goalas and other stall-keepers as prayed for by the plaintiff.

4. Before the learned Munsif, the Municipality wanted to justify its action by referring to Sections 34 and 134 of the Bengal Municipal Act of 181-1. Now, Section 34 is in these terms:

The Commissioners at a meeting...may sell, let, exchange or otherwise dispose of any land not required for such purposes.

5. If the Chawkbazar Road of that particular place had been closed permanently or if in that part the Municipal Commissioners had diverted the roadway with the result that the land formerly occupied by the road was no longer to be used as a roadway, the Municipal Commissioners could have proceeded under this section and could have sold or let out or exchanged that piece of land. But inasmuch as the roadway is still there and the ground is being used as a roadway by the public, Section 34 of the Bengal Municipal Act would not be sufficient to support the action which the Municipality has taken nor do I think that Section 234 of the Bengal Municipal Act makes the action of the Municipality complained of intra vires. Section 234 runs in these words:

The Commissioners may