DURGA SAHAI DIXIT Vs. RAMESH CHANDRA AND

JUDGEMENT

(1.) THIS appeal arises out of a suit for mandatory injunction requiring the defendant Durga Sahai Dixit to remove and demolish the walls AB and BC from the Rasta, marked R-3 in the site plan attached to the plaint and restore the Rasta as before and for a permanent injunction restraining the defendants from interfering in any manner with the plaintiffs' use of the land ABCD as Rasta and use of the well as well. It appears, as was found by the appellate court below that Shambhu Nagar Colony in Shikohabad is a new colony and Raghubir Prasad and Har Bharose Lal were the owners of the land thereof. They had divided that land into several plots setting out a passage for the use of the residents of the colony. The land in suit ABCD formed part of the passage which is denoted by letter R-3 in the site plan attached to the plaint. It was not disputed before me by the learned counsel for the plaintiffs that the passage (R-3) was declared a public street. A notice to that effect was issued by the Municipal Board, Shikohabad, on 11th February, 1965. Thereafter, the land was declared public street on 11th June, 1965. Subsequently, a resolution was passed by the Board to transfer a part of the said public street to the defendant no. 1 vide resolution dated 7th September, 1965, Ext. A-2. A sale deed dated 27th October, 1975 (Ext. A-7) was executed by Sri Ram Ahuja, President of the Municipal Board, Shikohabad for a consideration of Rs. 405/- Thereafter, the defendant no. 1 raised the disputed constructions AB and BC thereby blocking the street. The plaintiffs feeling aggrieved, filed the suit, which has given rise to the present appeal. The trial court decreed the suit holding that the land in dispute forms part of the passage land ABCD and the Municipal Board was not competent to sell the same. Against that decision, an appeal was preferred by the defendant no. 1. The appellate court below on a consideration of the evidence on the record held that formerly Raghubir Prasad and Har Bharose Lal were the owners of the land in suit and that before the execution of the sale deed (Ext. A-7) the said land was part of the passage in Shambhu Nagar Colony, that the said passage R-3 was declared a public street in accordance with law by the Municipal Board, Shikohabad and it, therefore, vested with the Board under section 116 of the U. P. Municipalities Act. It was also held by the appellate court below that while making transfer of the land in favour of the defendant no. 1 the Municipal Board did not consider as to whether the said land was no more required as a public street. Finding that the Board could transfer a land used for a public street only if it was no longer required for the said purpose it was held that the transfer was bad in law. The appeal was accordingly dismissed. Aggrieved the defendant no. 1 has come up to this Court as Second appeal. For the appellant, it was urged that section 219 (f) of the U. P. Municipalities Act (hereinafter called the Act) refers to the land used for public street. It does not cover the case of the public street declared under section 221, which can be sold under section 124 of the Act. The power under section 219 (f) does not relate to a land which has vested with the Municipal Board under section 116 (g) of the Act. In order to appreciate this contention it would be appropriate to refer to the definition of the term "public street" as given in section 2 (19) of the Act. Public street means a street which is declared a public street by the Board under provisions of section 221 or which with the consent, express or implied, of the owner of the land comprising the street has been levelled, paved, metalled, channelled, severed or repaired out of the municipal or other public funds. Section 221 provides that a Board may at any time by public notice give intimation of its intention to declare a land a public street after inviting objections and considering the same. It is not in dispute that in the case in hand the Rasta marked by letter R-3 was declared to be a public street in accordance with the provisions of section 221 of the Act. The said street, therefore, become a public street within the meaning of section 2 (19) (a) of the Act. Section 116 of the Act provides that subject to any special reservation made by the State Government all public streets and the payments, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets shall vest in and belong to the Board. The street marked by letter R-3 thus vested with the Municipal Board Shikohabad. Section 219 (f) lays down that a Board may "subject to the provisions of any rule prescribing the conditions on which property vested in the Board may be transferred, lease, sell or otherwise dispose of any property acquired by the Board under clause (e) or any land used by the Board for a public street and no longer required there for. Section 124 of the Act deals with the power of the Board to transfer property. It reads thus:- 124. Power of Board to transfer property. (1) Subject to any restriction imposed by or under this Act, a board may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the board not being property held by it on any trust the terms of which are inconsistent with the right to so transfer. (2) Notwithstanding anything contained in sub-section (1), the board may with the sanction of the State Government, transfer to Government any property vested in the Board but not so as to affect any trust or public rights to which the property is subject. (3) Provided that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act. Thus, reading section 124 along with section 219 it becomes quite apparent that any land declared as public street which vested with the Municipal Board may be transferred by the Board by instrument in writing sealed with the common seal of the municipality and complying with all conditions in respect of contracts imposed by or under the Act. Section 97 of the Act requires that every contract made by or on behalf of a board whereof the value or the amount exceeds Rs. 250/- shall be writing and shall be signed by the President or a Vice-President and by the executive officer or a secretary. In the instant case, the sale deed, as pointed out earlier, was executed by Sri Ram Ahuja as President of the Board. A perusal of the sale deed would, however, disclose that it is not executed in the name of the Municipal Board, Shikohabad, nor does it bear the common seal of the Municipal Board. It has also not been signed by the Executive Officer or the Secretary of the Board. Obviously, it does not comply with the requirements of sections 97 and 124 of the Act. The purported sale of the land in dispute in favour of the defendant no. 1 was, therefore, contrary to law, hence invalid. That being so, the defendant no. 1 had no right to make any encroachment in any manner on the land in dispute and to raise any constructions thereon. That apart the courts below have held that it was not substantiated by any cogent evidence that the land in dispute which formed part of a public street was no longer required for the purpose of public street; hence the Board was not competent to transfer the land. As pointed out earlier section 219 (f) provides that the Board may dispose of any land used by the Board for a public street if it is no longer required there for. It gives power to the Board to dispose of a land, which was being used by the Board for a public street, but that power is to be exercised only when such land is no longer required for a public street. Neither the sale deed (Ext. A-7), nor any other evidence on the record indicates that the Board had ever decided that the land in dispute was no longer required for public street. Even the resolution (Ext. A-2) does not give any indication to that effect. The oral evidence is also not directed to that point. Faced with this difficulty, it was submitted on behalf of the defendant No. 1 appellant that the land referred to in section 219 (f) is not the one which is declared as public street under section 221 and vested with the Board under section 116 (g). The distinction sought to be made out is however, not borne out from the words used either under section 221 or section 219 of the Act. A public street as defined under section 2 (19) is a public street declared under section 221 or the street, which is levelled, paved, metalled, channelled, as severed or repaired out of the municipal or other public funds. The street declared as a public street under section 221 becomes the land of the Municipal Board under section 116 (g). It is then used for the purpose of the public street and shall go on like that till it is no longer required for the purpose and the board transfers it in the manner contemplated by the Act. Hence, for exercising the power under section 219 (f) it becomes necessary to first resolve that the land is no longer required for the purpose of public street. THIS was not established by the defendant no. 1 in the instant case. The courts below were, therefore, correct in holding that the transfer was not in compliance with the provisions of section 219 (f). Hence, in any view of the matter, the defendant no. 1 did not have any right to make any encroachment on the land marked by letters ABCD. The courts below were, therefore, justified in decreeing the suit. There is no merit in this appeal and it is accordingly dismissed with costs.