9911796707
TMI Blog1935 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... n the evening till 6 o'clock in the morning. But what the Municipality has done is this. It has granted either licenses or leases to milkmen and other shop-keepers to use a portion of the public thoroughfare for the purpose of putting their articles there and vending them. This they usually do in pursuance of the said licenses or leases from the Municipality generally from 6 o'clock in the evening till 12 o'clock in the night as is the finding of the Court below. The plaintiffs suit is a very simple suit. He has recited the fact that it is by the permission of the Municipality that the said shop-keepers come there every evening, occupy a portion of the public thoroughfare and sell their articles. In para. 4 of the plaint he stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff's building or granting licenses of the same to the goalas and other stall-keepers as prayed for by the plaintiff. 4. Before the learned Munsif, the Municipality wanted to justify its action by referring to Sections 34 and 134 of the Bengal Municipal Act of 181-1. Now, Section 34 is in these terms: The Commissioners at a meeting...may sell, let, exchange or otherwise dispose of any land not required for such purposes. 5. If the Chawkbazar Road of that particular place had been closed permanently or if in that part the Municipal Commissioners had diverted the roadway with the result that the land formerly occupied by the road was no longer to be used as a roadway, the Municipal Commissioners could have proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the roadway. The learned Munsif rightly repelled the contention of the Municipality that it acted intra vires by holding that these two sections have no application to the facts of this case. 7. The learned Subordinate Judge on appeal also takes the view that Section 34 or Section 234 cannot be called in aid by the Municipality for the purpose of supporting its action but the learned Subordinate Judge has proceeded on the ground that no evidence has been adduced by the plaintiff to show that the Municipality has either granted leases to the goalas to occupy portions of the road way or licenses to vend their articles there. I do not quite follow the learned Subordinate Judge in this respect. In the written statement, the Municipality ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whatever doubt there may have been in this respect has been removed by reason of the amendment of Section 30 of the said Municipal Act by vesting the sub-soil of the road also to the Municipal Commissioners. 9. I accordingly hold that the action of the Municipality complained of is ultra vires and the plaintiff is entitled to the declaration prayed for in the plaint and to an injunction in this form, that the defendant Municipality be restrained from leasing out the road-side in front of the plaintiff's building or in granting licenses of the said road-side lands to the goalas and other stall-keepers. 10. The result is that this appeal is allowed, the judgment and decree of the learned Subordinate Judge set aside, the decree of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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