Land must satisfy the definition of a public street under the Himachal Pradesh Municipal Act, 1968, to be considered a public premises for the purpose of eviction under the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971.

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 S. 4 of the Himachal Pradesh Public Premises and Land (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 S. 5 (1) of the afore­said Act, he directed the petitioner to vacate the premises, failing which, the petitioner was 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 S. 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 Ss. 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 S. 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 to vest in the Municipal Corporation under S. 55 (1) (g) of the Himachal Pradesh Municipal Act the land must be a public street. A "public street," as defined by S. 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 S. 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