1935 (4) TMI 15 - HC - Indian Laws

Summary

Issues:
Violation of public thoroughfare rights by Municipality through granting licenses to occupy portions of the road for commercial purposes.

Analysis:
1. The plaintiff appealed against the Municipality, chaired by the defendant, for allowing shopkeepers to use a portion of the public thoroughfare for commercial activities. The plaintiff sought a declaration that such actions were ultra vires and an injunction to prevent the Municipality from granting such licenses or leases. The Munsif decreed in favor of the plaintiff, providing a declaration and a permanent restraint on leasing out the roadside in front of the plaintiff's building.

2. The decree was considered slightly defective as it did not explicitly mention the word 'license.' The court highlighted that the plaintiff should also receive a declaration regarding the granting of licenses. The defendant Municipality was to be restrained from leasing out the roadside land or granting licenses to shopkeepers as requested by the plaintiff.

3. The Municipality attempted to justify its actions under Sections 34 and 234 of the Bengal Municipal Act. However, the court determined that these sections did not support the Municipality's actions. Section 234, which allows permission for temporary use of roads, did not apply to the establishment of a daily market on a public thoroughfare.

4. The court emphasized that a statutory corporation like the Municipality can only act within the powers granted by the governing statute. The Municipal Act of 1884 did not authorize the Municipality to allow the public thoroughfare to be used for purposes other than as a pathway. The court held that the Municipality's actions were ultra vires, and the plaintiff was entitled to the declaration and injunction sought.

5. The appeal was allowed, setting aside the Subordinate Judge's decision and restoring the Munsif's decree with a minor modification to include the word 'license.' The plaintiff was awarded costs against the Municipality. Leave to appeal under the Letters Patent was refused.