Decided on November 16,1979

STATE Respondents


N. H. BHATT - (1.) * * * *
(2.) AFTER going through the orders passed by the Collector and the Deputy Secretary certain errors of law are detected as apparent on the face of the record. Neither the Collector nor the Deputy Secretary kept himself confined to his statutory powers under sec. 258(1) of the Municipalities Act nor does it appear that the requirement of that section were taken into account by the authorities concerned. It is too late in the day for me to emphasise that all public bodies and officials have got only those powers which are expressly or by a necessary implication granted by law and to other unlike citizens who can do everything except that which is prohibited by law. When the Collector and the Deputy Secretary of the Government exercising appellate powers under sec. 285(3) (of Gujarat Municipalities Act) lost sight of the morning of sec. 285(1) their order is to be held as the one passed without authority of law. Sec. 958(1) of the Gujarat Municipalities Act gives powers to the Collector to suspend the execution or prohibiting the doing of any act and direct the municipality to restore the position as it was before the commencement of the work if the work was progressed if and only if the Collector forms an opinion to the following effect; "the execution of any order or resolution of the municipality or the doing of any- thing which is about to be done or is being done by or on behalf of a municipality is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful". The injury contemplated by sec. 258(1) is the legal injury and the annoya- nce referred to therein is the annoyance caused in violation of some duty. If one does something lawful and thereby somebody is injured the resu- ltant injury is no injury in the eyes of law. Similarly if one does some- thing in the exercise of ones right and if someone feels annoyed thereby it is no annoyance in terms of the said section. Neither of the two officers has addressed himself to the question from this angle. The Colle- ctor hastened to pass the order on his assumption that the public had a right to pass through this land and it was a public street land. The Deputy Secretary of the Government on the other hand thought that it was exp- edient provide a road for the pedestrians to pass though he appeared to be of the view that unless a particular strip of land was officially declared to be a street land it could not be a street land. This latter assumption on the part of the Deputy Secretary is made by him without taking into account the definition of the word Public Street occurring in sec. 2(22) of the Act and the relevant provisions of law. However I hereby do not express any definite opinion one way or the other and I leave the matter to be decided afresh in accordance with law. Petition allowed : Matter ordered to be returned.;

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