MAHIM CHANDRA GHATAK Vs. DINGAMANIK UNION BOARD

JUDGEMENT

(1.) In the year 1864, the Bengal Legislature commenced a course of legislation on the pattern of English statutes under which public roads and certain other means of communication were placed under the control and management of local authorities. A beginning was made with municipal areas and, as in England, it was thought that in order that the local authorities might effectively discharge the obligation laid upon them, it was necessary to vest in them some property in the material objects to which the public right was attached. What was thus vested in the local authorities was not the same under all the successive statutes, but was enlarged or varied from time to time. Under Act 3[III] of 1864, it was "all public highways, not being the property of and repaired by and kept under the control of the Government and not being private property." Under Act 5[v] of 1876, it was "all roads, bridges, embankments, banks, ghats, wharves, jetties, wells, channels and drains, not being private property and not being maintained by Government or at the public expense." Under Act 3[III] of 1884, it was at first the same as under the previous Act, but, on amendment by Act 4[IV] of 1894, came to be "all roads, including the soil, and all bridges, embankments" etc., the rest of the provision remaining unaltered. Road or highway was defined as road, street, alley, passage etc. over which the public had a right of way; and each Act contained a provision that the local authority might take over roads, channels etc. in private ownership by agreement with the person in whom the property therein was vested.

(2.) In 1885, the Legislature extended the scope of such legislation to rural areas and by Act 3 [III] of that year vested the control and management of roads, bridges, channels, etc., held by the District Road Committee, in District Boards, adding that the roads, bridges, channels etc., "shall include and shall be deemed to have always included the soil and the sub-soil beneath these properties, excluding however, the minerals. Roads, bridges and channels, owned by the Crown, might also be placed under the control and management of District Boards, but only with their consent. The control of District Boards might be delegated to Local Boards. A further provision was enacted to the effect that in areas where the Local Government had constituted a Union, "all village roads and bridges thereon, and the stones and other materials thereof" must be placed under the control and management of the Union Committee. Further expansion of this legislative policy took place in 1919. In that year, it was thought "expedient to develop the system of self-government in the rural areas of Bengal" and to that end Act 5[V] of 1919 was passed, which extended to the whole of Bengal, but was to come into force in such areas as the Local Government, might, by notification, direct. In areas where this Act was brought into force, that part of Act 3[III] of 1885 which dealt with the powers and duties of Union Committees, was to stand repealed. Section 4 (8) of this Act defined road in practically the same terms as the Municipal Acts, viz., "any road, street or passage, whether a thoroughfare or not, over which the public have a right of way." Section 19 of the Act provided that "every road, building or other work constructed by a Union Board from the Union Fund shall be vested in the Union Board by which it has been, constructed" and by Section 31 it was enacted as follows: The Union Board shall have control of all roads, bridges and waterways within the Union, not being private property and not being under the control of the Local Government or the district Board or the local board, and may do all things necessary for the maintenance and repair thereof, and may- (d) widen, open, enlarge or otherwise improve any road or bridge; (e) deepen or otherwise improve waterways.

(3.) The word Local preceding the word Government was recently changed into Provincial under the Government of India (Adaptation of Indian) Laws Order, 1937. The kind or class of roads committed to the control of municipalities under the old Bengal Municipal Acts and the nature and extent of the property vested in them, have been the subject of considerable litigation in the Courts. The language of those Acts and that of Act 5[V] of 1919, is, in all essential respects, identical and the various Acts, whether dealing with municipalities or District Boards or Union Committees or Union Boards, appear to have been enacted in pursuance of, in this respect, a common legislative intention and to have in view the same kind of roads and channels. The question in the present case is whether Section 81 of Act 5[V] of 1919 (The Bengal Village Self Government Act), the terms of which have been quoted above, contemplates a waterway over which the public have a right of passage, but which runs across private lands.