NUDDEA MILLS CO LTD Vs. SIDHESWAR CHATTERJEE

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-respondent against the appellant company and the Naihati Municipality for a declaration of the plaintiff's right of way over a certain public road called Radhaballav Road and for other consequential reliefs. The plaintiff's case is that long ago a temple was built and dedicated by one of his ancestors on Radhaballav Road, a little away from another public road called Ferry Fund Road connected by Radhaballav Road. The plaintiff further claimed easement of necessity over the road. He sought for a further declaration that the act of the Municipality in closing up the road was ultra vires and also for a permanent injunction restraining the defendants from interfering with his right of way over the road to reach the temple and for a direction on the appellants to remove obstructions put by them across the road. The facts are that there was a road called Radhaballav Road leading from Perry Fund Road westward to the Hooghly; there were houses on both sides of the road all of which except the temple were acquired by the appellant company and they have erected at great cost a jute mill which they are working. The defendant Municipality sold the whole of Radhabullav Road to the appellant company who have included it in their mill compound by a boundary wall. The road from the Hooghly to the temple has been closed and there is no objection to this because the appellants have acquired all the lands on both sides of the road. The dispute is with regard to the portion of Radhaballav Road from the temple to Ferry Fund Road. The Municipality finding it probably not worth while to maintain this portion of the road sold the entire road to the mills. In order to allow the plaintiff to reach the temple a passage was given to the plaintiff by the appellants of which we will speak later.

(2.) The defence of the appellants and of the Municipality is that in the exercise of the power vested in, the Municipality under the law it has transferred this road to the appellants that the plaintiff has no absolute right of passage over it and that the passage given by the appellants to t he plaintiff is sufficient for the purpose. The trial Court found for the plaintiff on all the points on which he based his title to the road, and held that the Municipality had no right to sell the land to the mill; and further that the plaintiff had an easement of necessity over the road; The lower appellate Court confirmed all these findings but in view of the decision of the Allahabad High Court in Fazal Hag V/s. Maha Chand [1875] 1 All. 557. thought that the plaintiff should be given a passage in lieu of the road and the passage proposed by the appellants from Ferry Fund Road to the temple almost diagonally across the appellant's lands would suit but that it should be walled up on both sides by the appellant without the gate put up by them at the head of the passage. In this view the learned Additional District Judge passed a decree to the effect that the appellant company should remove their gate from the passage keeping an intermediate space of at least six feet in width and should wall it up on both sides. If they failed to do so in a fortnight the plaintiff would be at liberty to execute the decree and to have the old Radhaballav Road reopened on demolishing the company's boundary wall and to have access to the temple by that road. This order to a certain extent, makes our position easy and leaves us to consider what should be the proper order passed in the circumstances of the present case. But as the lower appellate Court has confirmed the views of the first Court on the questions of law raised which have been pressed before us by the learned advocate for the respondents it is. necessary to examine them in brief.

(3.) It is argued in the first place that the Municipality has no power under Act 3 of 1884 to sell the road to the appellants. The learned Counsel for the appellants has, on the other hand, broadly contended that the Court has no power to question the discretion of the Municipality in this matter. This contention should not be acceded to for if the Municipality has acted ultra vires the civil Court has the power to interfere as also the power to grant proper relief to the aggrieved party. This is the principle on which civil Courts interfere with acts of public bodies, such as Municipalities, created by statutes. There are numerous cases On this point but it is enough to refer to Kameshwar Pershad Vs. Chairman of the. Bhabua Municipality [1900] 27 Cal. 849.