DIWANJI GANDAJI JADEV Vs. KADI MUNICIPALITY

JUDGEMENT

(1.) This petition and the arguments advanced in support of it have raised firstly the question whether under sec. 146(1) of the Gujarat Municipalities Act 1963 (hereafter referred to as the Act) a part of the public street can be discontinued or stopped; and secondly whether such part of public street can be discontinued or stopped for the purpose of raising structure like shops thereon by the municipality and letting them out so as to augment municipal revenues. These two questions arise in the following facts.

(2.) The petitioner is a permanent resident of and carries on business at Kadi; and the opposite party is the municipality of Kadi. There is a road leading to railway station of Kadi 86 feet wide known as station road. The said road admittedly vests in the municipality and is a public street or a public road. The standing committee of the municipality passed a resolution on December 21 1970 deciding to construct cabins for raising revenue of the municipality. These cabins are proposed to be constructed just adjoining the compound of S.T. bus stand Kadi. After the said resolution Notification No. 7171-70 was published by the municipality on April 20 1971 inviting tenders for the purpose of carrying out construction of the proposed cabins. Pamphlets were also issued by the municipality informing the public that 20 shops are to be rented by the municipality and possession will be handed over in the month of August 1971 The municipality also informed the persons desirous of keeping the shops on rent that they should deposit Rs. 1 500 on or before June 30 1971 This act of the municipality is challenged as illegal and ultra vires on the ground that the municipality has no statutory authority to divert a portion of the public road for the purpose of construction shops. It was also alleged that the proposed construction of shops would obstruct the petitioner and public at large to the access to the road. An averment is made that the funda- mental right of the petitioner guaranteed by Article 19(1)(f) of the Constitution of India is violated. At the hearing of this petition however no reference was made to this so-called violation; and that averment has remained unsubstantiated by proper particulars as well as by arguments. On these grounds of which really speaking first one only survives the petitioner seeks a writ of certiorari or any other appropriate writ direction or order quashing the aforesaid resolution of December 21 1970 and the subsequent notification of April 20 1971 and the pamphlets of the same date. He also seeks permanent injunction restraining the municipality from const- ructing any cabins or shops on the land forming part of the station road.

(3.) The affidavit-in-reply filed by the Chief Officer of the municipality discloses that the resolution to which reference was made in the petition was really a proposal and it was to be put into effect after the necessary procedure was gone through. It was also averred that the cabins could be constructed only if that portion of the road on which cabins were to be constructed was closed as public street and for that purpose a public notice was published on January 20 1971 notifying the specified portion of the road which was to be closed as a public street and inviting object. ions thereon by the members of the general public. A copy of this notice is produced at Annexure A with the affidavit-in-reply. It was further alleged that the petitioner filed his objections in response to this notice and thereafter the proposal and the objections were considered by the Board which by its Resolution No. 5 dated April 2 1971 ruled out the objections and sanctioned the proposal to close down a part of the public street. A copy of the said resolution is annexed at Annexure C with the affidavit-in-reply. The allegation that the municipality had no power to discontinue or stop a part of the public street was refuted and it was averred that the act done by the municipality was lawful and was done after observing the formalities laid down by the Act. The locus standi of the petitioner and suppression of material facts were two more grounds pleaded in the affidavit-in-reply in order to non-suit the petitioner.