1935 (4) TMI 15 - HC - Indian Laws

Municipality's Unauthorized Actions on Public Thoroughfare Ruled Ultra Vires

The plaintiff challenged the Municipality for permitting shopkeepers to use public thoroughfare for commercial activities. The court ruled in favor of the ... Ultra vires - public thoroughfare - power to sell, let or otherwise dispose of land not required for municipal purposes - permission to deposit movable property or make excavations in a road for temporary works - statutory corporation has only such powers as are conferred by statute - injunction restraining municipality from granting licences or leases on highwayPublic thoroughfare - ultra vires - municipal power to lease or license road-side land - Whether the Municipality acted intra vires in granting licences or leases to vendors to occupy a portion of an existing public thoroughfare. - HELD THAT: - The Court found that the Chawkbazar Road remained a public thoroughfare used by the public throughout the day and night and that the Municipality had granted licences or leases permitting goalas and stall-keepers to occupy portions of that roadway for vending. A statutory corporation possesses only such powers as are conferred by statute; therefore the Municipality cannot permissibly authorise continual use of an existing public highway for a regular market merely by granting licences or leases. Consequently the Municipality's practice of permitting daily occupation of the roadway for vending was held to be ultra vires its statutory powers. [Paras 1, 2, 7, 8, 9]The action of the Municipality in granting licences or leases to occupy the public thoroughfare for vending was ultra vires.Power to sell, let or otherwise dispose of land not required for municipal purposes - permission to deposit movable property or make excavations in a road for temporary works - Whether Sections 34 and 234 of the Bengal Municipal Act authorised the Municipality's conduct. - HELD THAT: - Section 34 permits disposal of land not required for municipal purposes, which applies where the roadway has been permanently closed or diverted and the land is no longer needed as a road. Section 234 contemplates temporary permissions to deposit materials, make excavations, or enclose part of a road for specific temporary works, with safeguards for public passage and protection. The Court held that neither provision authorises the establishment of a regular evening market occupying a part of an existing public thoroughfare; therefore those sections do not validate the Municipality's action. [Paras 4, 5, 6]Sections 34 and 234 do not justify the Municipality's grant of licences or leases for regular vending on the public roadway.Injunction restraining municipality from granting licences or leases on highway - Whether the plaintiff was entitled to a declaration and injunctive relief restraining the Municipality from leasing or licensing the roadside in front of the plaintiff's building. - HELD THAT: - Having held the Municipality's conduct to be ultra vires and that the statutory provisions relied upon did not apply, the Court concluded that the plaintiff was entitled to the declaratory relief and an injunction. The decree of the learned Munsif was restored with the modification that the injunction should also restrain the granting of licences (in addition to leases) for occupation of the road-side in front of the plaintiff's premises. Costs were awarded to the plaintiff. [Paras 3, 9, 10]Declaration granted and permanent injunction issued restraining the Municipality from leasing out or granting licences of the road-side in front of the plaintiff's building; decree of the Munsif restored with modification and costs to the plaintiff.Final Conclusion: Appeal allowed; the Municipality's practice of permitting vendors to occupy a portion of an existing public thoroughfare by way of licences or leases was held ultra vires, Sections 34 and 234 of the Bengal Municipal Act do not authorise such use, the Munsif's decree was restored (extended to include licences), costs awarded to the plaintiff, and leave to appeal under Letters Patent refused. Issues:Violation of public thoroughfare rights by Municipality through granting licenses to occupy portions of the road for commercial purposes.Analysis:1. The plaintiff appealed against the Municipality, chaired by the defendant, for allowing shopkeepers to use a portion of the public thoroughfare for commercial activities. The plaintiff sought a declaration that such actions were ultra vires and an injunction to prevent the Municipality from granting such licenses or leases. The Munsif decreed in favor of the plaintiff, providing a declaration and a permanent restraint on leasing out the roadside in front of the plaintiff's building.2. The decree was considered slightly defective as it did not explicitly mention the word 'license.' The court highlighted that the plaintiff should also receive a declaration regarding the granting of licenses. The defendant Municipality was to be restrained from leasing out the roadside land or granting licenses to shopkeepers as requested by the plaintiff.3. The Municipality attempted to justify its actions under Sections 34 and 234 of the Bengal Municipal Act. However, the court determined that these sections did not support the Municipality's actions. Section 234, which allows permission for temporary use of roads, did not apply to the establishment of a daily market on a public thoroughfare.4. The court emphasized that a statutory corporation like the Municipality can only act within the powers granted by the governing statute. The Municipal Act of 1884 did not authorize the Municipality to allow the public thoroughfare to be used for purposes other than as a pathway. The court held that the Municipality's actions were ultra vires, and the plaintiff was entitled to the declaration and injunction sought.5. The appeal was allowed, setting aside the Subordinate Judge's decision and restoring the Munsif's decree with a minor modification to include the word 'license.' The plaintiff was awarded costs against the Municipality. Leave to appeal under the Letters Patent was refused.