N.H.BHATT - (1.)(The plaintiffs had a land of about 2 feet wide near his compound wall which he had got from the ruler by a Sanad Municipality letting out cabins on footpath near that open land. Plaintiff filed a suit against the Municipality stating that it had no right to let out the public street. His Lordship after narrating facts dealt with the above first point of granting lease and refused to reopen the finding of fact. His Lordship further observed:)
(2.)This brings me to the second important question arisings in this second appeal. The important question in this appeal is whether the municipality has got any powers to let out the public street land. As noted above the plaintiff asserted in the plaint that it was never lawful for the municipality to let out the public street land whereas the defendants on the other hand contended that the defendant No. 1 could So the first question to be decided by me is whether there is an absolute ban on the letting out of this street land. The extreme proposition put forward by the plaintiff is difficult to be sustained in view of the legal position though it is to be conceded forthwith that under sec. 80 of the Act all property specified in various clauses of sub-sec. (2) which includes all public streets and pavements which are vested in and belong to the municipality are to be held by the municipality and applied by the municipality as a trustee subject to the provisions and for the purposes of this Act. This means that ordinarily public streets are to be used by the municipality as public streets and public streets sa the definition of the term public street in sec. 2(22) indicates are meant for the publics right of way. So ordinarily such street lands are to be used by the municipality as street lands. In the case of EMPEROR V. VISHWANATH NANA PARPE & OTHERS A. I. R. 1926 BOMBAY 535 the Division Bench of the Bombay High Court whose judgment is the law for this court has held as follows:
" Therefore a strong presumption arises that the legislature did not intend by the general power it gives to the municipality to discontinue or stop up public streets that they should use that power for a purpose which contravenes the intention shown by sec. 122 of the Bombay District Municipal Act." No doubt before the Bombay High Court sec. 50 of the District Municipal Act 1901 was a provision to be dealt with but sec. 50 of that Act and sec. 80 of the Gujarat Municipalities Act 1963 are practically identical. So what the Bombay High Court has stated about sec. 50 of the Bombay District Municipal Act 1901 will with equal force apply to sec. 80 of the Gujarat Municipalities Act. The Bombay High Court in that case has held that public streets are vested in the municipality for the purpose of being maintained as public streets under sec. 50 of the Bombay District Municipal Act and that section expressly declares that public streets so vested in them shall be applied by them as trustees subject to the provisions and for the purposes of the Act. The Bombay High Court ultimately then held as follows and it is very material for our purposes: "Therefore it rests upon anyone who supports the action of the municipality to show that it had statutory authority to divert a portion of a public street in the manner that has been done."

In that case part of the public street was given by the municipality for the purpose of doing timber business and that was being done for at least 50 years prior to the date of the decision in the years 1926.

(3.)Similarly the Division Bench of this court in the case of PARASRAM MANJIMAL & ORS. V. THE KALOL MUNICIPALITY. KALOL A. I. R. 1972 GUJARAT 54 XIII G. L. R. 498 also in paragraph 7 of the reported judgment held as follows:
"7. The present case with which we are concerned is also in respect of obstruction and encroachments upon public streets and it empowers as well as lays down a duty on the municipalities and their officers to take necessary action under sub-sec. (1) and (2) thereof in respect of an obstruction on encroachment made on the public street. This is as stated earlier a power of the Municipality coupled with duty and the municipalities are not entitled under law to lease out permanently or for a considerable period the land forming part of the public street and the action of the municipality in leasing out such land would be clearly contrary to law and without any authority or jurisdiction. And if such obstructions or encroachment remain on public streets not only the municipality and its officers are empowered to take necessary action but they would be under the duty to remove such encroach. ments or obstructions...." This judgment was relied upon by the respondent No. 1 herein the original plaintiff for the purpose of supporting his basic case in the plaint that under no circumstances the Municipality can lease out a part of the public street land. The observations made in this judgment relying upon the judgment of the Bombay High Court in the case of EMPEROR V. VISHWANATH (SUPRA) try to lend support to this inference but there the Municipality itself was an aggrieved party and the period of lease had expired and the alleged obstruction was sought to be removed by the Municipality by recourse to sec. 185 of the Act. So there was no occasion for the Division Bench to consider an exceptional situation in which the Act itself confers a power on the Municipality to lease out street lands. As I am told that there is no clear judgment in this regard and as the Bombay High Courts judgment referred to above and also the Division Bench judgment of this Court referred to above were essentially concerning themselves with the encroachment the question of the power of the Municipality to let out the part of the street lands was not directly on the anvil. I therefore propose to examine the law on the subject threadbare.