V. S. Deshpande, J. (Oral)

( 1 ) WHO has the power to remove encroachment on a public street in Delhi, the Delhi Municipal Corporation acting under the provisions of the Delhi Municipal Corporation Act, 1957 (hereinafter called the Corporation Act) or the Gaon Panchayat acting under the Delhi Panchayat Raj Act, 1954 (hereinafter called the Panchayat Raj Act)? The Delhi Municipal Corporation. (appellant herein) sent a notice dated 20. 8. 1960 to Shri Hira Lal (respondent herein) asking the latter to remove encroachment from a public street in village Kapas Hora. The notice purported to be under sections 320 and 321 of the Corporation Act. Shri Hira Lal thereon instituted a suit praying that the Corporation be restrained from proceeding against him. The plaintiff, inter alia, alleged that the Corporation had no jurisdiction to serve the said notice on him inasmuch as the village was governed by the provisions of section 18 (1) of the Panchayat Raj Act. The suit was defended by the Corporation, inter alia, on the ground that the Corporation had the power to remove the encroachment made by the plaintiff on the public street under sections 320 and 321 of the Corporation Act.

( 2 ) THE suit was decreed by the trial Court on the preliminary ground that the exclusive jurisdiction to remove an encroachment from a public street vested in the Gaon Panchayat and the Corporation had no jurisdiction to do so. The Corporation was, therefore, restrained from proceeding against the plaintiff. The lower appellate Court adopted the view and the reasoning of the trial Court and dismissed the first appeal.

( 3 ) THE sole question before me in the second appeal is which of the two competing authorities, namely, the Corporation and the Gaon Panchayat, has the power to remove the alleged encroachment from the public street in village Kapas Hora?

( 4 ) BY the definition of "delhi" in sub-setion (10) of setion 2 of the Corporation Act, Delhi means the entire area of the Union territory of Delhi except New Delhi and Delhi Cantonment. The Corporation Act, therefore, applies to this village ill which the alleged public street is situated. Sub-section (44) of section 2 of the Corporation Act defines a "public street" to mean any street which vests in the Corporation as a public street. Under section 298 (1) of the Corporation Act, all streets within Delhi are or at any time become public streets, and the pavements, stones and other materials thereof shall vest in the Corporation. Under section 299 (1) of the said Act, the Commissioner shall, from time to time, cause all public streets vested in the Corporation to be properly maintained and kept in a state of repair. By section 42 (p) of the said Act, it shall be incumbent on the Corporation to make adequate provision by any means or measures which it may lawfully use or take for the removal of obstructions and projections in or upon streets, bridges and other public places. Sections 320 and 321 of the Corporation Act prohibit encroachment over any street and, therefore, a fortiori on any public street. Under section 322 the Municipal Commissioner may, without notice, cause to be removed any stall, chair, bench, box, ladder, bale or other thing whatsoever, placed, deposited, projected, attached or supended in, upon, from or to any place in contravention of the Act. The notice by the Corporation was obviously given in pursuance of these provisions of the act with a view to the removal of the encroachment. Section 461 of the Corporation Act provides that whoever contravenes any provision of the Act mentioned in the first column of the Table in the Twelfth Schedule or fails to comply with any order or direction lawfully given to him shall be punishable with fine specified in that behalf in the third column of the Table in the Twelfth Schedule. A contravention of sections 320 and 321 is punishable by fines of Rs. 200. 00and Rs. l00. 00respectively.

( 5 ) IT is seen, therefore, that the Corporation Act not only ve

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