PATNA CITY MUNICIPALITY Vs. DWARKA PRASAD SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal from a This is a Letters Patent appeal from a jujudgment of Dhavle J. in second appeal reversing a decree of the lower Appellate Court and restoring the decree of the learned Munsif which was in, favour of the plaintiffs. The plaintiffs were the owners of a property abutting on to Convent Road, Patna City. Between the metalled portion of the road-way and the plaintiffs boundary was a strip of land upon which a kachcha drain was at one time situate. Between that drain and the plaintiffs boundary wall was a narrow strip of land which has given rise to the dispute in the present case. The Patna City Municipality which was defendant 2, executed a lease in favour of defendant for a period of five years with a certain option to renew. Upon this strip of tyntr Defendant 1 has ereoted a petrol pump and the other constructions complained of, and the suit was brought by the plaintiffs for their removal.

(2.) The plaintiffs at first alleged .that they were the owners of the narrow strip of land betiJJjoq the kachcha drain and their boundary wall, but eventually they gave up that claim. They however alleged that the Patna City Municipality had no right to lease the land in question to defendant 1 and that the latter had no right whatsoever to erect the structures complained of and thus obstruct the plaintiffs access to the road.way. The main defence relied upon was that the Patna City Municipality had a right by statute to lease or other, wise dispose of this land and that the plaintiffs had no right to object to what had been done in pursuance of the lease granted to defendant 1.

(3.) The learned Munsif held that the Municipality had no right, in the circumstances of this case, to deal with this land to the detriment of the plaintiffs and accordingly ordered demolition of the offending structures. The learned District Judge came to a contrary finding and dismissed the claim. In second appeal Dhavle J. held that the Municipality could not give defendant 1 a right to erect these structures and accord, ingly he reversed the decision of the lower Appellate Court and restored the decision of the Munsif. On behalf of the Patna City, Municipality Sir Sultan Ahmed has argued that this strip of land could be leased by the Municipality and that defendant 1 could erect the structures now complained of. In this Court an attempt was made to show that this strip of land was something apart from Convent Eoad; but it is to be observed that throughout the proceedings in the lower Courts it had always been conceded that this disputed strip of land formed part of the road.way and was the property of the Municipality by reason of the fact that the road vested in them. Section 58, Bihac and Orissa Municipal Act, 1922, provides for the vesting of certain property in the. Municipal Commissioners. Sub-clause (a) provides that inter alia all roads within the-Municipality, including the soil, the pavements, stones and other materials thereof, and all drains, bridges, trees, erections,, materials, implements and other things pro-vided for such roads are to vest in the Municipality. The word "road" is defined in Section 3(24) of the Act and the definition is in these terms: Road means any road, bridge, footway, lane, square, oourt, alley or passage which the public, or any portion oi the public, has a right to pass along, and includes, on both sides, the drains or gutters and the land up to the defined boundary of any abutting property, notwithstanding the projection over such land of any platform, verandah or other uperstructure.