JAGAT NARAYAN, C.J. - (1.) THESE four special appeals have been filed by the leave of a learned Single Judge against his judgment dated April 18, 1966, by which he decided 9 second appeals. THESE 9 second appeals arose out of 5 suits Nos. 75 of 57, 94 and 157 of 1960 and 20 and 200 of 1962 of the court of Munsif, Ganganagar. All the 5 suits were decreed by the trial court. In appeal suit No. 75 of 1957 was dismissed by Shri Krishna Nand, the then District Judge of Ganganagar by his judgment dated March 2, 1959. The appeals in the remaining 4 suits were dismissed by Shri Sardar Singh, the then District Judge of Ganganagar by his judgment dated 30-1-62. The result of the judgment of the learned Single Judge is to decree all the 5 suits.
(2.) SPECIAL Appeal No. 21 of 1966 arises out of suit No. 157 of 1960 which was instituted by Santlal. SPECIAL appeals No. 20 of 1966 and 32 of 1966 arise out of suit No. 75 of 1957 which was filed by Ladu Ram SPECIAL appeal No. 29 of 1966 arises out of suit No. 200 of 1962 filed by Khemchand. The defendants of suit No. 20 of 1962 which was instituted by one Lachni Ram have filed special appeal No. 22 of 1966 This could not be heard along with the other special appeals as it was not ripe for hearing on account of the death of a party. The defendants of suit No. 94 of 1960 instituted by Dewan Chand do not appear to have filed any special appeal against the judgment of the learned Single Judge. The facts are these. In the Dhan Mandi area of Ganganagar town there is a road leading from the Kotwali to the Lakkar Mandi known as Kotwali Road. At right angles to it towards its western end is the Dharamshala Road. Both these are public roads or highways, Santlal has a Nohra and Ladu Ram has shops abutting on the Kotwali Road and Khemchand has shops abutting on the Dharamshala Road. The width of these roads is 50 ft. Some 25 or 30 years before the present suits were brought the Municipality of Ganganagar let out substantial portions of these public roads to various persons on Tehbazari basis for putting up temporary wooden stalls for the purpose of using them as shops. The stalls have been set up by the persons who have been joined as defendants in the suits. In between the stalls and the properties of the plaintiffs there are narrow strips of land or lanes which are not more than 2 to 3 feet wide; otherwise the Tehbazari stalls virtually cover up the properties of the plaintiffs abutting on the two public roads. A considerable part of the two public roads has therefore been obstructed by the Tehbazari stalls and their original width of 50 feet has been substantially reduced. The actual position of the roads, the properties of the plaintiffs and the stalls have been shown in a plan which was produced before the learned Single Judge by Shri M. M. Vyas, learned counsel for the Municipality. The correctness of this plan has been admitted by all the parties. The Rajasthan Government conveyed an order to the Municipality on September 11, 1952, for the restoration of the entire width of the Kotwali Road by removing the stalls, but that order was not carried out. The stallholders themselves filed a suit for the issue of an injunction against their impending eviction, but it was dismissed on July 17, 1956. As the Municipality did not take any step to evict them the plaintiffs instituted the present suits challenging the legality of the obstructions on the public highways. They prayed that a perpetual injunction be issued directing the Municipality to refrain from letting out any portion of the public roads in future. They also prayed for the issue of a mandatory injunction for the removal of the obstructions. Various pleas were taken in defence before the learned Single Judge which were overruled by him. The first contention on behalf of the appellants is that the Municipality had the right under the law to let out the lands in question for setting up temporary stalls on Tehbazari basis. When the lands in question were first let out to the stall-holders the Bikaner Municipal Act, 1923 (No. VI of 1923) was in force. Reliance is placed on secs. 51( f ), 113 and 114 of this Act which run as follows : "51. Property vested in board - Subject to any special reservation made or to any special conditions imposed by His Highness' Government, all property of the nature hereinafter in this section specified and situated within the municipality, shall vest in and be under the control of the board; and, with all other property which has already vested or may hereafter vest in the board, shall be held and applied by it for the purposes of this Act, that is to say : (f) all public streets, land or other property transferred to the board by His Highness' Government or acquired by gift, purchase or otherwise for local public purposes." "113. Power over streets. - The board may - (a) close temporarily any public street or any part thereof for any public purpose; (b) divert, discontinue or close permanently any public street." 114. Power of permitting temporary occupation of streets etc - The Board may grant permission in writing for the temporary occupation of any street or land vested in it for the purpose of depositing any building materials or making temporary excavation therein or erection thereon, subject to such conditions as it may prescribe for the safety or convenience of persons passing by or dwelling or working in the neighbourhood, and may charge lees for such permission, and may at its discretion withdraw the permission." The argument is that as public highways vest in the Municipality and as power has been given under sec. 113(b) to the Municipality to discontinue or close permanently any public street, it was open to it to let out a part of the public highway to the stall holders. This contention was repelled by the learned Single Judge and rightly so in our opinion. All the property of the nature specified in sec. 51 vests in the Municipality and is under its control on the specific condition that it shall be held and applied by it for the purposes of the Act. It is not open to the Municipality to convert a part of a public highway into a Bazar. Under sec.. 113(b) it is open to the Board to discontinue or close permanently any public street, but that can only be done for the purposes of the Act. This provision also does not entitle the Municipality to let out a part of a public highway to a private person for setting up stalls for carrying on business. Sec. 114 also does not authorise letting out a part of a highway for setting up a stall for carrying on business. The purposes for which permission may be granted to occupy any part of a street temporarily are specified in it. They envisage permission to be granted to those constructing buildings abutting public streets or public lands so that people may be able to dig foundations and erect scaffoldings on the public street. When the Act did not give any power to the Municipality to let out portions of a public highway for putting up stalls for carrying on business this could not be done by framing any byelaws. Sec. 129 of the Act which provides for framing byelaws does not contain any clause specifically empowering the Municipality to frame byelaws about letting out parts of public highways on Tehbazari basis. Cl.(i) is a general clause enabling the Municipality to frame byelaws for carrying out the purposes of the Act As has been shown above the Act does not empower the letting out of portions of a highway for carrying on business and so no byelaw could be framed authorising the Municipality to do so. The Bikaner Municipal Act 1923 was repealed by the Rajasthan Town Municipalities Act 1951. Secs. 48(2)(f), 99 and 100 of it run as follows : "48, Power to acquire and hold property - (1) (2) All property of the nature hereinafter in this section specified and not being specially reserved by the Government shall be vested in and belong to the municipal board, and shall, together with all other property of what nature or kind whatsoever, not being specially reserved by the Government, which may become vested in the municipal board, be under its direction, management and, control, and shall be held and applied by it as trustee subject to the provisions and for purposes of this Act, that is to say - (f) all public streets and pavements, stones, and other materials thereof also all trees, erections, materials, implements and things provided for such streets. (3)... ... ... ... "99. Power regarding streets, etc. - (1) it shall be lawful for the municipal board to lay out and make new public streets, and to construct tunnels and other works subsidiary to the same and to widen, open, enlarge or otherwise improve any such street-, and to turn, divert, discontinue or stop up any such streets, and subject to the provisions of sub-sec. (2) of sec. 36 to lease or sell any such land therefor used or acquired by the municipal board for the purposes of such streets, as may not be required for any public street or for any other purposes of this Act. (2) In laying out or making, or in turning, diverting, widening, enlarging or otherwise improving any public street, in addition to the land required for the carriage-way and foot-way and drains thereof, the municipal board may purchase the land necessary for the houses and buildings to form the said street, and, subject to the provision contained in sub sec. (2) of sec. 36 may sell and dispose of such additional land in perpetuity or on lease for a term of years, with such stipulations as to the class and description of houses or building to be erected thereon as it may think fit." "100. Temoporary closure of streets. - The municipal board may, by an order in writing, temporarily close any street to traffic for repair, or in order to carry out any work connected with drainage, water supply or lighting or any of the purposes of this Act : Provided that such work shall be completed and such street re-opened to traffic with all reasonable speed " There was slight change in the language of the provision vesting certain properties in the Municipality. Under sec. 48(2) these properties vest in and belong to the Municipality and be under its direction, management and control. But it has been made clear that these properties shall be held and applied by it as trustee subject to the provisions and for the purposes of the Act. The addition of the words "and belong to" did not make any difference to the power of the Municipality which it had under sec. 51 of the Bikaner Municipal Act. In the Rajasthan Town Municipalities Act it was made clear that the properties are held by the Board as trustee and are to be applied by it for purposes of the Act. The Rajasthan Town Municipalities Act, 1951, was replaced by the Rajasthan Municipalities Act, 1959, the corresponding provisions are contained in sections 92(2)(f), 161 and 163. The language of these sections is the same as the language of the corresponding sections of the Rajasthan Town Municipalities Act, 1951. We may mention here that it was not the case of the Municipality that part of the public streets on which the stills stand were not required for the purpose of the streets and were therefore let out on Tehbazari. No resolution of the Ganga-nagar Municipality was produced embodying such a decision in respect of either of the two public streets.
(3.) THE leading case on the point is a Division Bench decision of the Bombay High Court in Emperor vs. Vishvanath Nana Karpe(l). In that case the Municipality had authorised timber dealers to use a strip of the street for the purpose of exposing timber for sale and this had continued for 40 years. THE Bombay District Municipal Act was applicable to the case, the corresponding provisions of which are similar to the provisions of the Bikaner and Rajasthan Acts referred to above. Under sec, 90 of the Bombay District Municipal Act the Municipality had authority to discontinue or stop any public street. It was contended that they had also authority to discontinue or stop a part of such street. It was held that public streets are vested in the Municipality for the purposes of being maintained as public streets and that it was! not contemplated that a portion of a street would be discontinued or stopped so as to provide a market thereon. This decision was followed in Municipal Committee Delhi vs. Mohammad Ibrahimi2), Chellaram Verhomal vs. Emperor(3), and Talakchand Dhanji vs. Dhoraji Municipality(4). In Municipal Board, Manglaur vs. Mahadeoji Maharaj(5s the Municipality was seeking to erect a structure on the road Patri between the drains and the metalled portion of the road wherein it intended to install a statute of Mahatma Gandhi and also to put up two rooms on either side for Piao and library. The plaintiff brought a suit for a permanent injunction restraining the defendant Municipality from putting up the structure on the suit site. It was held that the suit site was a part of the public pathway and that the pathway vested in the Municipality by virtue of sec. 116(g) of the U. P. Municipalities Act, but it could not put up the structures which it intended to erect on the vacant site as it could not be said that they were necessary for the maintenance or user of the road as a public highway, and were consequently unauthorised acts of the Municipality. The language used in sec. l16(g) is similar to the language used in the corresponding section of the Rajasthan Acts namely "shall vest in and belong to". We accordingly confirm the finding of the learned Single Judge that the act of the Municipality in letting out the parts of public highways for setting up stalls on Tehbazari basis was wholly illegal. Next it was contended that only the space between the stalls should be taken to be the highway. Reliance was placed on the following sentence accruing in the judgment of their Lordships of the S. G. in Manglaur Municipality's case (5) : "The width of the highway so dedicated depends upon the extent of the user." The full passage runs as follows and makes it clear that side-lands are also part of the public highway : "Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user: The side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and the manner and mode of its maintenance usually indicate the extent of the user. In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board." In Laduram's suit the Municipal Counsel and the stall-holders both admitted that the Kotwali road was 50 fest wide. In the other suits the trial court found that the width of the Kotwali road was 50 feet and this finding was not challenged in the first appeal and therefore it is binding on the parties to those suits. It is not disputed that the obstructions are of a much later origin than the public highways. These obstructions amount to public nuisance. ;