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1961 Supreme(Guj) 16
Gujarat High Court
Judgename :K.T.DESAI, V.B.RAJU
SHETH SUKHALAL PARSHOTTAM - Appellant
Versus
SURENDRANAGAR JOINT MUNICIPALITY - Respondent
CIVIL REF. 1 of 1960
Decided On : 02/10/1961
Headnote:
Civil Procedure Code - Section 113 - Bombay District Municipal Act 1901 - Section 5 - Civil Appeal - Owner of three shops situate at which were abutting on the northern side of a street - That street was declared by Joint Municipality to be a public street provisions contained in aforesaid - A question arose in that appeal whether such declaration was invalid and it was violative of constitutional rights guaranteed - Municipality may at any time by notice fixed up in any street or part of a street not maintainable by Municipality give intimation of their intention to declare same a public street and unless within one month next after such notice has been so put up owner or the majority of several owners of such street or such part of a street lodges or lodge objections thereto at municipal office - Municipality may by notice in writing put up in such street or such part declare same to be a public street - Held, This refers to power of municipality to lay out public streets and make new public streets and to widen open enlarge or otherwise improve such public streets and to turn divert discontinue or stop up any such public streets - It is urged that when such discontinuance takes place municipality is empowered to lease or sell any such land and it is urged that after a street is declared to be a public street if municipality elects to discontinue such street as a public street then it would acquire a right to lease or sell land over which street has been laid or over which there is a street and that there would a total deprivation of right of owner of land comprising street words lease or sell any such land appearing in have been followed by words theretofore used or acquired by the municipality for purposes of such streets as may not be required for any public street or for any other purposes of this Act - Now words theretofore used by municipality for purposes of such streets indicate that right to lease or sell such land could only be exercised in respect of such land as had theretofore been used by municipality for the purposes of such street - That would refer to land belonging to municipality which had been used by the municipality for purposes of any such street - Words acquired by municipality for the purposes of such streets also indicate that the ownership of the land is With the municipality - It is only such land whose ownership belongs to municipality which could be leased or sold out if same was not required for any public street or for any other purposes of municipality - That provides as it shall be lawful for Municipality to lay out and make new public streets and to construct tunnels and other works subsidiary to the same and to widen open enlarge or otherwise improve any such streets and to turn divert discontinue or stop up any such streets and provisions of any such land theretofore used or acquired by Municipality for purposes of such streets as may not be required for any public street or for any other purposes of this Act - Oder accordingly
( 1 ) THIS is a Reference under sec. 113 of the Civil Procedure Code. The learned District Judge Jhalawad Division has referred to us the question about the constitutional validity of sec. 90 sub-sec. (5) of the Bombay District Municipal Act 1901 as adapted. The learned District judge was of the opinion that sec. 90 sub-sec. (5) of the Act was void inasmuch as it violated the fundamental rights guaranteed under Article 19 of the Constitution. He found that the determination of that question was necessary for the disposal of the appeal that was pending before him and that the said sub-section had not been declared invalid or inoperative by any High Court or the Supreme Court so far.
( 2 ) THE appellant in Civil Appeal No. 207 of 1957 which was being heard by the learned District Judge was the owner of three shops situate at Surendranagar which were abutting on the northern side of a street. That street was declared by the Surendranagar Joint Municipality to be a public street under the provisions contained in the aforesaid sec. 90 sub-sec. (5 ). A question arose in that appeal whether such declaration was invalid and it was urged that sec. 90 sub-sec. (5) was violative of the constitutional rights guaranteed under Article 19 (1) (f) and Article 31 of the Constitution and no action could be taken thereunder. Sec. 90 sub sec. (5) provides as under :a Municipality may at any time by notice fixed up in any street or part of a street not maintainable by the Municipality give intimation of their intention to declare the same a public street and unless within one month next after such notice has been so put up the owner or the majority of several owners of such street or such part of a street lodges or lodge objections thereto at the municipal office. the Municipality may by notice in writing put up in such street or such part declare the same to be a public street.
( 3 ) THE expression street has been defined in sec. 3 sub-sec. (12) of the Act. That sub-section provides as follows:3 (12)-Street shall mean any road footway square court alley or passage accessible whether permanently or temporarily to the public whether a thoroughfare or not; and stall 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 occupiers of such buildings or nor but shall not include any part of such space which the occur pier of any such building has a right at all hours to prevent all other persons from using as aforesaid.
( 4 ) THE expression public street has been defined by sec. 3 sub-sec. (1w ). The said sub-section runs as under :3 (13) Public Streets shall mean any street (a) over which the public have a right of way or (b) heretofore levelled paved metallic channeled sewered or repaired out of municipal or other public funds or (c) which under the provisions of sec. 90 is declared by the municipality to be or under any other provisions of this Act becomes a public street.
( 5 ) IN construing the provisions contained in sec. 90 sub-sec. (5) we have to substitute for the word street in that section the definition given of a street in sec. 3 sub-sec. 12. So substituted sec. 90 (5) provides that the municipality may declare any road footway square court alley or passage accessible whether permanently or temporarily to the public whether a thoroughfare or not to be a public street. It may equally declare every vacant space 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 the occupiers of such buildings or not provided however that 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 afore
