PRABHUDAS KALYANJI Vs. HAJI HASAN HAJI YUSUF MAKLAI

JUDGEMENT

(1.) (The plaintiffs had a land of about 2 feet wide near his compound wall which he had got from the ruler by a Sanad Municipality letting out cabins on footpath near that open land. Plaintiff filed a suit against the Municipality stating that it had no right to let out the public street. His Lordship after narrating facts dealt with the above first point of granting lease and refused to reopen the finding of fact. His Lordship further observed:)

(2.) This brings me to the second important question arisings in this second appeal. The important question in this appeal is whether the municipality has got any powers to let out the public street land. As noted above the plaintiff asserted in the plaint that it was never lawful for the municipality to let out the public street land whereas the defendants on the other hand contended that the defendant No. 1 could So the first question to be decided by me is whether there is an absolute ban on the letting out of this street land. The extreme proposition put forward by the plaintiff is difficult to be sustained in view of the legal position though it is to be conceded forthwith that under sec. 80 of the Act all property specified in various clauses of sub-sec. (2) which includes all public streets and pavements which are vested in and belong to the municipality are to be held by the municipality and applied by the municipality as a trustee subject to the provisions and for the purposes of this Act. This means that ordinarily public streets are to be used by the municipality as public streets and public streets sa the definition of the term public street in sec. 2(22) indicates are meant for the publics right of way. So ordinarily such street lands are to be used by the municipality as street lands. In the case of EMPEROR V. VISHWANATH NANA PARPE & OTHERS A. I. R. 1926 BOMBAY 535 the Division Bench of the Bombay High Court whose judgment is the law for this court has held as follows:

(3.) Similarly the Division Bench of this court in the case of PARASRAM MANJIMAL & ORS. V. THE KALOL MUNICIPALITY. KALOL A. I. R. 1972 GUJARAT 54 XIII G. L. R. 498 also in paragraph 7 of the reported judgment held as follows: