N. H. BHATT, J. ( 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. 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 and 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 and ORS. V. THE KALOL MUNICIPALITY. ( 3 ) SIMILARLY the Division Bench of this court in the case of PARASRAM MANJIMAL and 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. 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. ( 4 ) APART from sec. 80 referred to above from which an inference could be deduced that ordinarily the Municipality shall not let out the land of the street which is vested in it if the very statutory provision envisaged lease etc. in certain situations then all these provisions are to be harmoniously construed so as to avoid the charge of any provision being held otiose. This takes us to sec. 146 of the Gujarat Municipalities Act which directly deals with the public streets. Section 146 (1) itself specifically says that subject to the provisions of sub-sec. (2) of sec. 65 it is lawful for a Municipality to lease or sell and such land therefore used or acquired by the Municipality for the purposes of such streets as may not be required for any public street or for any other purposes of this Act. There is therefore an express power in sec. 146 (1) of the Act for the municipality to lease the street land. The adjective such appearing in the second part of sub-sec. (1) is a demonstrative adjective referring to the land referred to earlier and the land referred to in the first part of sub-sec. (1) is the street land. Therefore the latter part of sec. 146 (1) of the Act negatives the absolute proposition put forward by the plaintiff and accepted by the courts below. However in order to reconcile the spirit of the Act as interpreted by the Bombay High Court and the Division Bench of this Court the lease of such street land is hedged or circumscribed or limited by various conditions. 146 (1) of the Act negatives the absolute proposition put forward by the plaintiff and accepted by the courts below. However in order to reconcile the spirit of the Act as interpreted by the Bombay High Court and the Division Bench of this Court the lease of such street land is hedged or circumscribed or limited by various conditions. Those conditions are as follow : (1) The public street land is meant for the public to exercise their right of way as per the definition of the term public streets in sec. 2 (22): (2) the lease of the street land is to be done by the municipality if and only if the land is not required for any public street or for any other purposes of the Act vide the latter part of sec. 146 (1); (3) such lease of the street land can be granted subject to the provisions of sub-sec. (2) of sec. 65 of the Act and the said sub-section clearly lays down that lease of land under sec. 146 of the Act has to be effected only after the previous permission of the State Government. If without the previous permission of the Government the municipality on its own leases out the land it becomes an act without any authority of law and therefore non-set and is not to be taken any cognizance of by a court of law; (4) A street land declared to be a public street land under sec. 148 of the Act can never be let out because the proviso to sec. 65 (2) enjoins upon the Government that the Government shall not grant such permission if such street lands forms a street or part of a street Which has been declared to be a public street under sec. 148 of the Act. Sec. 148 clearly mentions that the municipality acting through its Executive Committee after following the procedure laid down there can declare the private street to be a public street. In other words private property over which public have access and which therefore is declared by the municipality as a public street cannot be the subject matter of lease by the municipality because of the Legislative mandate contained in the proviso appended to sub-sec (2) of sec. 65 of the Act. ( 5 ) IN my view the legal position is too clear to be subjected to any mincing. Mr. 65 of the Act. ( 5 ) IN my view the legal position is too clear to be subjected to any mincing. Mr. Abichandani however urged that sec. 65 (3) clearly did away with or considerably diluted the rigorous provisions of sec. 65 including its proviso wherever applicable. Sub-sec. (3) of sec. 65 provides that if the lease of the municipal property including the lease of the street land under sec. 146 read with sec. 65 (1) of the Act is exceeding one year then sanction of the municipality by a resolution passed in the General Boards meeting is essential. Mr. Abichandani wanted to interpret this by saying that in all other cases the municipality is not required to do anything but forthwith let out. It is difficult to understand the argument advanced by Mr. Abichandani with respects I say. Sub-sec. (3) of sec. 65 has got a different purpose which is obvious. The municipal functions are ordinarily conducted by the Executive Committee or a specially constituted Committee is assigned specific functions. All that sub-sec. (3) provides is that if the municipal property which could be let out lawfully under sec. 146 (1) read with sec. 65 (1) and (2) is to be let out for a period exceeding one year then the decision will be only of the General Board that is all the councillors of the municipality and not by any of its sub-committees. Sub-sec. (3) cannot be projected into sub-sec. (2) in order to whittle down its force. So I hold that ordinarily public street lands are not to be let out as per the policy decision of sec. 80 of the Act. However if the plans are laid well in anticipation of the future development and for the time being a part of the street lands is not used as a public street the municipality may lease out such unrequired portions for short periods and in the period of lease is to exceed one year then the municipality as a whole body should deliberate and then a decision be taken provided the decision does not fly in the face of sec. 65 (2) of the Act or does not pertain to a street declared to be a public street under sec. 148 of the Act. 65 (2) of the Act or does not pertain to a street declared to be a public street under sec. 148 of the Act. ( 6 ) THE reason of not allowing a private street declared to be a public street to be let out is also obvious. The private property over which the public have access can be declared by the municipality to be a public street but that would not deprive the owner of its property rights in the soil. In case of such strips of lands declared to be public streets under sec. 148 of the Act only the surface would be belonging to the municipality and its possession will be limited and that too for the purpose of using it as a public street and therefore it is provided that such public streets shall not be let out because such letting out would mean an act of interfering with the proprietary of the original owner of the soil. ( 7 ) IN above view of the matter the absolute proposition put forward by the plaintiff in this case is difficult to be sustained and to that extent the findings of the courts below are required to be set aside. ( 8 ) THIS particular ratio deduced by me will not however stand in any good stead to the appellants defendants because the evidence of the Chief Officer of the municipality clearly shows that they have no other document except the resolution of the municipality regarding the letting out of this land. As held by the Division Bench of the Bombay High Court in the case of EMPEROR V. VISWANATH (SUPRA) it is for the person claiming through municipality and asserting his right to the allegedly lawful lease to establish this exceptional situation but we may not rest on the presumption or the onus of proof. The evidence of the Chief Officer of the municipality elicited in the course of the cross examination itself has made it amply clear that the municipality had assumed that it had power to let out the street land and therefore let out different parcels of public street land. The evidence of the Chief Officer of the municipality elicited in the course of the cross examination itself has made it amply clear that the municipality had assumed that it had power to let out the street land and therefore let out different parcels of public street land. It is also implicit in the statement of the Chief Officer that no other document except the resolution of the municipality was available and that no permission of the State Government was procured by the municipal Committee before letting out the public street lands. ( 9 ) IT was then alleged that even if these appellants are said to have been unauthorisedly in occupation of the public street land all that can be done is to direct the Municipality by a writ of mandamus or a mandatory injunction to get these lands cleared by persons who were on those land unauthorisedly. In other words the argument is that the Court on its own has no powers to bring about eviction of these appellants for the benefit of the Municipality. However it is to be noted that there is the judgment of the Saurashtra High Court in the case of Talakohand Dhanji Dhoraji Municipality A. I. R. 1955 Saurashtra 63 which I respectfully follow and I hold that the Court in order to safeguard the special interest of the neighbour can issue a mandatory injunction not only against the Municipality but against those who are on the lands unauthorisedly through that Municipality. The Division Bench of the Saurashtra High Court has held that invasion of the public street would be a continuous one and it can be remedied only by a mandatory injunction ordering the removal of the structure itself. Another judgment of the Allahabad High Court in the case of MST. BAGWANTI V. MST. JIUTI and ANR. A. I. R. 1973 ALLAHABAD 341 also refers to the same point. The High Court holds that any person who has a house abutting on a public road or lane is entitled to access to the road or lane from the house and no person or authority can destroy that right and hence if an obstruction is made by any person or authority of such public way which affects the ingress and egress a special damage to the owner of the property must be presumed. It was also held that a suit by such a person affected adversely can be maintained for demolition of the construction in question and for an injunction. I therefore do not uphold the contention that the mandatory injunction issued against the appellants cannot be granted. ( 10 ) LASTLY it was alleged that the suit was barred by secs. 252 and 253 of the Gujarat Municipalities Act. The alleged nuisance is a continuing cause of action and the action is held by me absolutely ultra vires the powers of the Municipality. Therefore in the facts and circumstances of this case no notice was required to be given and the provisions of secs. 252 and 253 of the Act are not attracted. ( 11 ) THE result is that this second appeal fails and stands dismissed. The appellants to pay the cost of the respondent No. 1 and bear their own. The municipality and other parties shall bear their own costs. ( 12 ) IN order to enable these appellants to have further recourse in accordance with law the execution of the decree is stayed for the period of two months from today. Appeals dismissed. .