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2000 DIGILAW 274 (JK)

Aggarwal Steels v. State Of J. &K.

2000-11-23

A.K.GOEL, T.S.DOABIA

body2000
JUDGMENT 1. In The Modern State by Mac Iver, the learned author observed: - "To some people state is essentially a class structure, an organisation of one class dominating over the other classes; others regard it as an organisation that transcends all classes and stands for the whole community. They regard it as a power system. Some view it entirely as a legal structure, either in the Old Austinian sense which made it a relationship of governors and governed or in the language of modem jurisprudence as a community organized for action under legal rules. Some regard it as no more than a mutual insurance society, others as the very texture of all our life. Some call the state as a great corporation and others consider it as indistinguishable from society itself." 2. The appellants prayer to the effect that the respondents be directed to allot the vacant space of land at the back of shop No. 21 which shop stands allotted to the appellant at JDA Shopping Centre, New Plots, Jammu stands declined by a learned Single Judge. An appeal has been preferred. 3. Appellants plea was that the space in the shop was not sufficient to carry on the business of sale of iron rods, which material is used for construction of buildings. It was pleaded that at the back of the shop there is a strip of land measuring 100x4". This is lying vacant. It was pleaded that this was (and is) being used by the appellant for keeping iron rods. He made a request to the respondent-authorities that this back space be allotted to him. This was declined. 4. The respondents took the stand that the user of this land by the appellant was (and is) unauthorised. It was stated that this space is meant to be used by the public. The space which should have been used by the public for moving on foot or for parking is being misused. This has led to not only inconvenience to the public but has also led to choking of the drainage system. Taking note of this aspect of the matter, a learned Single Judge of this court observed that the appellant was unable to point out any statutory provision which required to be implemented through a writ of mandamus. This has led to not only inconvenience to the public but has also led to choking of the drainage system. Taking note of this aspect of the matter, a learned Single Judge of this court observed that the appellant was unable to point out any statutory provision which required to be implemented through a writ of mandamus. It has been observed that parking space cannot be put to use in a manner in which the appellant wants it to be used. It was also observed that the plea of the respondents that by using this space by dumping steel rods, the drainage system has been adversely affected cannot be ignored. Appellant sought a writ of mandamus. This stands declined. 5. Streets and Public Streets - Encroachment and Removal thereof:- Both English and Indian decisions are consistent that a place accessible to public would vest in the local authorities. In the present case the place in question would certainly fall within the definition of the term public street1 because every member of the public has a right of access and to use this public street. The Municipal authorities are under an obligation to see that public streets are used for the purpose for which they are meant. It would be useful to take notice of what was said in Attorney General v. Corporation of Sunder Land 1875-76(2) Ch. D. 634. It was observed that the position of the Municipal Authorities in regard to public parks, gardens, squares and streets under the Act was that of a trustee and the Municipal Authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the Act. 6. The law with regard to public streets and highways in India is the same as in England and elsewhere. This may be noticed. 7. In Pratt and Machenzies Law of Highways 20th Edn. at page 4, it is stated:- "Subject to the right of the public to pass, repass in the highway, the owner of the soil in general remains the occupier of it and as such may maintain trespass against any member of the public who acts in excess of his right." 8. In Halsburys Laws of England, 3rd Edn. Vol. at page 4, it is stated:- "Subject to the right of the public to pass, repass in the highway, the owner of the soil in general remains the occupier of it and as such may maintain trespass against any member of the public who acts in excess of his right." 8. In Halsburys Laws of England, 3rd Edn. Vol. 19 at page 48 rules of presumption and proof of dedication are stated thus: - "The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was must have been aware that the public believed that the way had been dedicated and has taken no steps to disabuse them of the belief, is evidence but not conclusive evidence from which a court or jury may infer a dedication by the owner." 9. The learned author proceeds to observe at page 55: - "A dedication may also be inferred when a highway authority has used a strip of land adjoining an admitted highway for the deposit of stones or by cutting grips, or has, as of right and without permission, piped in and levelled the site of a road side-ditch." 10. Some English decisions dealing with the right of the public to pass as fully and freely and as safely as they desire may be noticed. 11. In Orr Ewing vs. Colquloun LR 2 AC 839 Lord Hatherley speaking of the Leven, a navigable but non tidal river says at page 846: -"There are two totally distinct and different things - the one is the right of property and the other is the right of navigation; the right of navigation is simply a right of way." and Lord Blackburn at page 854 states that "the public who have acquired by user, a right of way on land or a right of navigation on an inland water, have no right of property. They have a right to pass as fully and freely and as safely as they have been want to do." 12. They have a right to pass as fully and freely and as safely as they have been want to do." 12. In the case of Galbraiath vs. Ammour (1) 4 Bells App 374 in the House of Lords, Lord Campbell said: - "I must express my clear opinion that by the law of Scotland as well as by the law of England the soil of public highways is presumed to be in the conterminous proprietors and that, if a public highway is established by usage over the land of author the soil is still his, with all his former rights, subject to the public seritude which he has suffered to be established." 13. It will thus be seen that the right of the public to use the land as highway is not regarded as in the nature of property or property rights. See Roll vs. Vestery of St George LR 14 Ch.D.801. 14. In Coverdale vs Chariton LR (4) QBD104, it was held that by force of the statute in question which vested all streets in the local board and its control the property in the soil of the street so far vested in the local board that they could demise the same right thereon. Bramwell, LJ at pages 116-118 observed:- "I am disposed to hold that this street vests without any property in the freehold or the soil. The word Vest may have two meaning. It may mean that a man ac-quires the property us que ad caelum and to the centre of the earth but I do not think that to be its meaning here. One construction of the word vest here is that it gives the property in the soil, the freehold, the surface and all above and below it, but that would be such a monstrous thing to say to be necessary for the proper control of the streets by the local board, that I cannot suppose it to mean such a thing. Suppose the soil of the freehold passes, and consequently it carries the right to the land to an indefinite extent upwards and to the centre of the earth below the surface: I cannot make up my mind to say that is the meaning of the word vest in section 149.... What then is the meaning of the word vest in this section. What then is the meaning of the word vest in this section. The legislature might have used the expression transferred or conveyed but they have used the word Vest. The meaning I should like to put upon it is that the street vests in the local board qua street...... The meaning put on the word Vest is the space and the street itself, so far as it is ordinarily used in the way that streets are used, shall vest in the local board...... That would show that street comprehends what we may call the surface that is to say, not a surface hit of no reasonable thickness as the local board may require for the purpose of doing to the street that which is necessary to it as a street and also of doing those things which commonly are done in or under the streets and to that extent they had a property in it." Brett, LJ observed at page 121: - "Street means more than the surface, it means the whole surface and so much of the depth, as is or can be used not unfairly, for the ordinary purposes of a street. It comprises as depth which enables the urban authority to do that which is done in every street namely to raise the street and to lay down severs, for at the present day there can be no street in a town without severs and also for the purpose of laying down gas and water pipes..... If the enactment gives the local board that property in so much of the land it gives them the absolute property in everything growing on the surface of the land. The Legislature have because the right of the owners to the soil in a street is of so little value, intentionally taken away that right and have given it to the extent I have mentioned to the local board." 15. The Legislature have because the right of the owners to the soil in a street is of so little value, intentionally taken away that right and have given it to the extent I have mentioned to the local board." 15. At page No. 126 Cotton LJ in concurrence with his brothers observed:- Therefore, on the true construction of this Act of Parliament, the meaning to be given to the words Vest in must be passed to and vested in the local board; it is sufficient in the present case to say that the street and the surface vested in the local board some property in the soil for purpose for which it was to be used and in my opinion thing and that under this clause it vests in the local board." 16. James LJ in Rolls vs. Vestary of St George LR 14 Ch.D. 795, explained the above decision in the following words: - "What that case decided and all that was necessary to decide in that case, was that something more than an easement passed to the local board and that they had some right of property in and on and in respect of the soil which would enable them as owners to bring a possessory action against trespassers. Now, what was that something more? It is impossible to read any of these judgments delivered on that occasion without seeing that in the view of the learned judges, the soil and freehold in the ordinary sense of the words soil and freehold that is to say the soil from the centre of the earth upto an unlimited extent into space did not pass and that no status or portion of the soil, defined or ascertainable like a vein of coal or strabun or iron stone or anything of that kind passed but that the board had only the surface and with the surface such right below the surface as was essential to the maintenance and occupation and exclusive possession of the street and the making and maintaining the street for the use of the public. 17. 17. In The Mayor of Tunbridge Wells vs. Baird LR1896 AC 434, the House of Lords speaking through Lord Halsbury was of the opinion:-"That the street should be vested in them as well as under their control may be, I suppose explained by the idea that, as James LJ points out, it was necessary to give, in a certain sense a right of property in orderto give efficient control over the street. It was thought convenient, I presume that there should be something more than a mere easement conferred upon the local authority, so that the complete vindication of the rights of the public should be preserved by the local authority and therefore, there was given to them an actual properly in the street and the materials thereof. It is intelligible enough that parliament should have vested the street qua street and indeed so much of the actual soil of the street as might be necessary for the purpose of preserving and maintaining and using it as a street. 18. Referring to the case of Coverdale vs. Charilton LR 4 QBD 104, at page 439 Lord Bramwell observed: - "It would be a reasonable construction of the statute to suppose, not that the soil of the freehold had been given in the sense which I have described, but only so much that the street should be used as a street and then his Lordship is also credited with the observation that the local authority would have authority to do such things as are commonly done in or under a street." 19. This decision was followed and applied by the Court of Appeal in a case arising under section 96 of the Metropolis Local Management Act, 1855. This is reported as Battersen Vestry vs. County of London etc. Electric Lighting Co (1899) 1 Ch474. In this an electric lighting company had illegally broken up the surface of a street within the district of a vestry in the metropolis and passed their pipes and wires at a depth of about 2 feet below the surface. This is reported as Battersen Vestry vs. County of London etc. Electric Lighting Co (1899) 1 Ch474. In this an electric lighting company had illegally broken up the surface of a street within the district of a vestry in the metropolis and passed their pipes and wires at a depth of about 2 feet below the surface. It was held that the vestry were not by virtue of section 96, the owners of the soil of the street at that depth and that although the defendant company had acted illegally in breaking up the street the vestry could not maintain an action for a mandatory injunction to compel the company to remove their pipes and wires there being no continuing trespass upon or interference with any rights of the vestry. 20. In the case of Municipal Council of Sydney vs. Young LR (1898) AC 457 which came on appeal before the Privy Council from the Supreme Court of New South Wales, Lord Morris in delivering the judgment of their Lordships of the Privy Council observed at page 459: - "Now it has been settled by repeated authorities which were referred to by the learned Chief Justice that the vesting of a street or public way vests no property in the municipality, beyond the surface of the street and such portion as may be absolutely necessarily incidental to the repairing and proper management of the street, but it does vest the soil or the land in them as owners. If that be so, the only claim they could make would be for the surface of the street as being merely property vested in them qua street and not as generally property." 21. The conclusion to be drawn from the English case law is that what is vested in urban authorities is not the land over which the street is formed but the street qua street and that the property in the street thus vested in a Municipal Council is not general property or a species of property known to the law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway. 22. 22. In two cases namely, Wordsworth Board of Works vs. United Telephones Co LR13 QBD 904 and Lord Prowost of Glasgow v. Glasgow & S.E. Railway Co. LR (1886) AC 376, which bear upon the extent to which the urban authority has a right in the air space over the surface of a street, and below and beside a bridge over which the street was carried. In regard to the drain which is also vested in the municipality the extent of air space above the drain to which the Municipal Council may be entitled will not be the same as in the case of the street. See also Mayor of Birkenland v. L and N.W. Railway Co LR 15 QBD 572. 23. Before noticing Indian cases on this subject, reference may also be made to another English case in Garvet vs. Truno Rural District Council (1908) 2 Ch 838 page 641 -644 Joyce J observed as under: - "In the case of an ordinary highway running between fences, although it may be of a varying and unequal width the right of passage or way prima facie and unless there is evidence to the contrary extends to the whole space between the fences and the public are entitled to the entire of it as the highway are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers." 24. Adverting to the open strip of land on the sides of the road, the learned Judge observed:- "......as Lord Tenterden observed in Rex vs. Wright (1832) 3 B & Ad 681 (688) 37 RR the space at the sides that is of the hard road is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close upto the part actually used it could not be kept sound." 25. The cases originating in this country may now be noticed. 26. In the case of Chairman of Naihati Municipality vs. Kishorilal Goswami ILR13Cal 171, it was held:- "That the vesting of roads in a municipal corporation by Bengal Act V of 1876 section 32 did not pass to the municipality the soil beneath the roads." 27. The cases originating in this country may now be noticed. 26. In the case of Chairman of Naihati Municipality vs. Kishorilal Goswami ILR13Cal 171, it was held:- "That the vesting of roads in a municipal corporation by Bengal Act V of 1876 section 32 did not pass to the municipality the soil beneath the roads." 27. In Madhu Sudan Kundu v Pramode Nath Roy ILR 20 Cal 732, the same view was taken and it was held that statute in question did not deprive any person of any right of private property that he may have in land used as a public road and that it does not vest the subsoil of the land in a municipality. 28. The decision of the Allahabad High Court in Nihal Chand v. Azmat Ali Khan ILR 7 All 362 proceeds on the some view. 29. A Division Bench of the Allahabad High Court in Municipal Board of Agra vs. Sudarshan Das Shastri AIR 1914 All 341 page 342 observed as under:- "......In our opinion all the ground, whether metalled or not over which the public had a right of way is just as much the public road as the metalled part. The court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street." 30. In Municipal Committee Multan Vs Tahila AIR 1923 Lah 272. it was held:- "The Municipality cannot permit any person to deposit goods for sale on any public street and cannot lease any portion of public street." 31. Suhrawardy J in Anukul Chandra v Dacca Dt Board AIR 1928 Cal. 485 at page 486-487 held:- "The expression road or highway has been considered in as many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the said lands." 32. Reference may also be made to the decision of the Patna High Court in Dwarka Prasad vs Patna M.C. AIR 1938 Pat. Reference may also be made to the decision of the Patna High Court in Dwarka Prasad vs Patna M.C. AIR 1938 Pat. 423 wherein it was held that the owner of the land abutting on a roadway is entitled to access to that roadway. This decision was affirmed by a Division Bench and is reported as Patna Municipality vs Dwarka Bench AIR 1939 Pat 683. Other decisions dealing with the subject and holding that highways cannot be obstructed or fenced and that these must remain accessable to the adjoining owners are R. District Board Manbhdom vs. EN Railways Co AIR 1945 Pat 200; Pehlad Maharaj v. Gaudi Dutt AIR 1937 Pat 620; Dastrath Mehto vs Narain Mehto AIR 1941 Pat; Firm Kastoori Lal Sant La! vs M.C. Jagraon AIR 1939 Lah, 199 and M.C. Delhi vs Mohd. Ibrahim AIR 1935 Lah 136. 33. In Nagar Palika Bina vs Sh. Nand Lal AIR 1961 M,P. 212, the law relating to creation of a highway byway of dedication and proof as to dedication was considered. Paras 7, 8 and 9 are relevant and may be noticed as under:-"(7) Highway rights are either created by statute or they arise out of dedication by the owner of the soil to the public dedication is defined in 26 Corpus Juris Secundom 398 (1956 Edition) as follows:- "A dedication is the devotion of land to a public use by an unequivocal act on the owner of the fee, manifesting the intention that it shall be accepted and used presently or in the future for such public purposes." And it is further stated: - "Common law dedication is the setting apart of lands for public use. The doctrine rests on public convenience and is based on public policy and good faith and it is analogous to the doctrine of estoppel although it has been stated that it is a distinctive to estoppel." Such dedication may be made by an express grant or it may be presumed from a long, continued and uninterrupted user by the public dedication can be shown by proof of acts and declarations by the owner, as held in Spedding vs Fitzpatrick (1888) 38 Ch. D 419 or by the owner permitting the public for a substantial period of time to have the free and uninterrupted use of the way, without any impediment whatever (see 19 Halsbury Simonds Edition) 49. D 419 or by the owner permitting the public for a substantial period of time to have the free and uninterrupted use of the way, without any impediment whatever (see 19 Halsbury Simonds Edition) 49. However, it is only an evidence but not conclusive evidence. (8) User must be open and unconcealed so that the extent of land owners acquiescence may be determined. And user must be as of right, that is to say that public must enjoy a way as of right where they use it believing themselves to be exercising a right. See Hue vs Whiteley, 1929-1 Ch. 440 at p. 445 and Jones vs Bates 1938-2 All ER 237 at p. 245. User by permission or by force cannot justify an inference of dedication. Long and continued user raises a presumption of dedication but the presumption is rebuttable. It was held in Muhammed Rustam Ali vs Municipal Committee Karnal AIR 1920 PC 43: - "In order to constitute a valid dedication to the public of a highway by the owner of the soil there must be an intention to dedicate there must be an animus dedicandi of which the user by the public is evidence and no more and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyments." But it must be remembered that user is not dedication; it is only evidence to prove animus dedicandi. In every case there must be a clear intention to dedicate. It was held in Simpson vs Attorney General (1904) AC 476 per Lord Machaghten at pp 493,494: - It is clear law that a dedication must be made with intention to dedicate, and that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not of itself amount to dedication." 34. The principle that a Municipality cannot use a public street otherwise than as a public street and it has no right to interfere with the enjoyment of the right of way by public by letting out a portion of it to a particular individual for private use was recognised in Municipal Committee Multan Vs. Abdul Garoor and Others AIR 1934 Lah 900. 35. In Tallak Chand Vs. Dhoraji Municipality AIR 1955 Sau. Abdul Garoor and Others AIR 1934 Lah 900. 35. In Tallak Chand Vs. Dhoraji Municipality AIR 1955 Sau. 63, a Division Bench observed that the Municipality is not entitled to put up a pucca structure on a foot path merely on the strength of a fact that the street vests in it and belongs to the Municipality. In this case, it was further observed that an owner of the adjoining property has a right of access to the Highway on all points on his boundary and the access is not be restricted to any particular point. It was further observed that if there is obstruction to the access at any point the owner has a right to have the obstruction removed. The owner of land adjoining a highway has a right of access to the Highway from any part of his premises. The right of the public to pass alongwith this highway are subject to this right of access just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the Highway. Reference was made to the observations made by Lord Atkin in Marshall vs. Black Pool Corp 1935 App Cases 16. 36. Right of a hawker to carry on a business on the public street and footpath was conducted by the Calcutta High Court in the case of Vishwa Nath vs Sudhir Kumar Banerjee AIR 1961 Cal. 389 and it was observed: - "That neither the commissioner of police nor the police authorities nor commissioner of the Calcutta nor the corporation of Calcutta and not even the government has any right whatsoever under the law to declare any part of a public street to be a footpath to be a hawkers corner. Such a declaration that hawker would be entitled to occupy a part of public street or footpath and erect unauthorised construction thereon". 37. The fact that the public streets are to be kept free from encroachment was considered in Pyarelal vs. Santlal AIR 1972 Raj 103 and it was observed :- "10, 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 bye-laws. Section 129 of the Act which provides for framing bye-laws does not contain any clause specifically empowering the Municipality to frame bye-laws about letting out parts of a public highways on Tehbazari. Clause (1) is a general clause enabling the Municipality to frame bye-laws 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 on bye-laws could be framed authorising the Municipality to do so". 38. In R. Vardharajan vs. Salem Municipal Council AIR 1973 Mad 55, it was held that the municipal council cannot permit erection of a statute in violation of the Municipal Act on a public street and even an island is covered for that matter. It was further observed that if the Municipal authorities act to the contrary to the provisions of statute then they can be directed to act in accordance with law. 39. In Mst Bhagwati vs. Mst Jaiti AIR 1975 AN 341 it was observed that if an obstruction is made by any person or authority on a public way which affects the ingress and egress then a suit can be maintained for the removal and demolition of the construction in question. See also Prabhu Das Kalyan Ji vs Haji Yusuf Makala AIR 1983 Guj. 119 wherein it was observed that mandatory injunction can be granted directing the Municipality to take action against the person who has been permitted to put a cabin on the footpath. Reliance was placed on an earlier decisions given in Paras Ram Manji Mal vs Kalol M.C. AIR 1972 Guj. 54 and Emperior vs. Vishwa Nath AIR 1926 Bom 535. 40. In Brigovinda Rao vs. District Collector Emakulam AIR 1983 Ker. 11 under government scheme to aid the disabled persons an institution was authorised to construct a bunk on the side of a road within the Corporation limits. This action was challenged. It was held that the land on which the bunk was built was a public street and neither the Government nor the Corporation had any right to allow any construction or to use it in a fashion other than the public street. 41. In Corporation of Chechin vs. N. Janardan AIR 1983 Ker. 148 a construction was made on footpath. It was held that the land on which the bunk was built was a public street and neither the Government nor the Corporation had any right to allow any construction or to use it in a fashion other than the public street. 41. In Corporation of Chechin vs. N. Janardan AIR 1983 Ker. 148 a construction was made on footpath. It was held that the Municipal authorities could demolish the construction since it was constructed on property which vested in the Corporation. In this case, the permission was granted to construct a milk booth over a gutter. The booth was however, constructed over the gutter and the footpath. It was held that the construction on the footpath could be demolished. 42. In Govt. of Tamil Nadu vs. Chingleput Drawaiar Kazhagam AIR 1986 Mad 264, it was held that the Municipal Council cannot permit the user of the street for a purpose other than that indicated in the statute. 43. In Dull Chand vs. Bhairon Dass AIR 1973 Raj 96 it was observed that the Municipal authorities can construct a soak pit below the surface of a public street and in doing so the right of the public or of adjoining neighbour or owners are not affected. It was observed that in case of a public street the plaintiff, the adjoining owner have only the right to pass and to use the public street subject to all reasonable restrictions. After recognising this right, it was observed that the plaintiff has no right on the sub soil or the soil below the surface of the street. The existence of soak pit does not cause any obstruction in his right under the public street. 44. Now coming to the decisions given by the Supreme Court of India. It may be seen that the view is consistent that the streets and public streets should be kept free from encroachment. In Manglore Municipality vs. Mahadeoji AIR 1965 SC 1147, it was observed that:- "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. 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 permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user." 45. Again in State of UP. vs Atar Mohd AIR 1980 SC 1785, it was held that street would vest in the Corporation only qua the street and not as absolute property. What is vested in the Municipality is not general property or a species of property known to the common law but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the street as a street and not for any other purpose. 46. In a still later decision, the Supreme Court of India in M/s Gobind Prasad vs. New Delhi Municipality (1994) 14 Legal Reports & Statutes (PB) 296 the court observed that even the verandahs in the Canaught Circle in New Delhi-which once belonged to the owners would be covered by the term street and the power to declare such a street as public street was upheld. 47. Thus not only pavements, verandhas, drains but all open spaces in front of shops which are accessible to public vest in the municipal council. This vesting is for the purposes of seeing that the streets are used as streets and are accessible to public without any obstruction. The term Vest was elaborated in Vegetables and Fruit Merchants Union vs Delhi Improvement Trust AIR 1957 SC 344. It was held that the word vest has not got a fixed connotation meaning in all cases that the property owned by the persons or the authority in whom it vests it may vest in title or it may vest in possession or it may vest in a limited sense as indicated in the context in which it may have been used in a particular piece of legislation. The court took note of certain English decisions. The court took note of certain English decisions. Paras 16 and 18 deal with them and are being reproduced below: - "(16) In the case of Coverdale v. Charlton (1878) 4 QBD 104 the Court of Appeal on a consideration of the provisions of the Public Health Act 1875 (38 & 39 Vict. c. 55) with particular reference to S. 149 has made the following observations at p. 116. "What then is the meaning of the word Vest in this section? The legislature might have used the expression transferred or conveyed but they have used the word Vest. The meaning I should like to put upon it is, that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, qua street." (18) In the case of Finchley Electric Light Co. v. Finchley Urban District Council (1903) 1 Ch 437 adverting to the provisions of S. 149 of the Public Health Act 1875 (supra) Romer L.J. has made the following observations at pp 443 and 444. "Now that section has received by this time an authoritative interpretation by a long series of cases. It was not by that section intended to vest in the urban authority what I may call the full rights in fee over the street as if that street was owned by an ordinary owner in fee having the fullest rights both as to the soil below and as to the air above. It is settled that the section in the urban authority so much of the actual soil of the street as might be necessary for the control, protection and maintenance of the street as a highway for public use. For that proposition it is sufficient to refer to what was said by Lord Halsbury L.C. and by Lord Herschell in Tunrbridge Wells Corporation v. Baird (1896) AC 434 ....... That section has nothing to do with title; it is not considering a question of title. No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority......." 48. The above decision given by the Supreme Court was followed by M.P. High Court in Municipal Committee Raigarh v. Ram Rattan AIR 1958 M.P. 355. No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority......." 48. The above decision given by the Supreme Court was followed by M.P. High Court in Municipal Committee Raigarh v. Ram Rattan AIR 1958 M.P. 355. In para 25 of the judgment it was observed that so far as public Townhalls Gates, Public Streets, springs, public severs, lanes public streets and roads within the municipality are concerned the vesting section must be so construed as to give the municipality the least interest with the property that is compatible with the proper exercise on the power in relation to these things given in the municipality under the Act. In Om Prakash vs. M.C. Bhatinda 1986 (1) Legal Reports & Statutes (Pb) 415, it was held that the provision dealing with the vesting of streets only enable the Municipal authorities to take responsibility on itself to improve the street and the transfer of the land to the Committee is for this limited purpose only. 49. In view of the aforementioned decisions the conclusion is clear that the place which is accessible to the public and which abuts on the public street would also be a part of the street and these are to be kept clear. 50. In the State of Jammu and Kashmir in the exercise of powers conferred by section 3 of the Prevention of Ribbon Development Act of Samvat 2007 a notification has been issued This is to the effect that no building activity shall be undertaken within 75 meters from the centre of the road alongside the bye-pass outside the limits of Jammu Municipality. The imposing of above restriction was challenged on the ground that this is not a reasonable restriction within the meaning of Articles 19 and 21 of the Constitution. It was submitted that fixation of 75 metres from the centre of the road is not justified. It was further submitted that if for the national highway the limit is 30 metres, then there is no justification of fixation of limit of 75 metres in other cases. It was urged that this restriction violates the fundamental rights as it is amounted to interference in the rights of user of property. 51. It was further submitted that if for the national highway the limit is 30 metres, then there is no justification of fixation of limit of 75 metres in other cases. It was urged that this restriction violates the fundamental rights as it is amounted to interference in the rights of user of property. 51. The question arises as to whether the State is competent to regulate the construction activity in the manner which has been sought to be done by issuing the notification under challenge. 52. Regulation of user of open spaces is universally recognized. It is a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation. 53. In Agins v. City of Tiburon (1980) 447 US 255 the Supreme Court of United States upheld a zoning ordinance. It was said:- "It is in the public interest to avoid unnecessary conversion of open space land to strictly urbans uses, thereby protecting against the resultant impacts, such as pollution, destruction of scenic beauty, disturbance of the ecology and the environment, hazards related to the ecology, fire and flood and other demonstrated consequences of Urban sprawl." 54. In Village of Euclid v. Ambler Realty Company, (1926) 272 US 365, the Supreme Court of the United States expressed an opinion that:- "The police power is not confined to elimination of filth, stench and unhealthy places. It enables the carving out of lay out zones where family values youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people." 55. This aspect of the matter was noticed in Bangalore Medical Trust v. BS. Muddappa AIR 1991 SC 1902. What was said in para 27 is being reproduced below: - "The statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputable housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. As stated by the U.S. Supreme Court in Samuel Berman v. Andrew Parker (1954) 99 Law Ed 27: 348 US 26:- "...... They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. Crowded urban areas tend to spread disease, crime and immorality. As stated by the U.S. Supreme Court in Samuel Berman v. Andrew Parker (1954) 99 Law Ed 27: 348 US 26:- "...... They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of char, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river. ...... The concept of the public welfare is broad and inclusive...... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorised agencies have made determinations that take into account a wide variety of values......" 56. A Division Bench of this Court in the case Shri Kirpa Ram v. Deputy Commissioner & Ann, bearing writ petition No. 169 of 1971, upheld the validity of the Ribbon Development Act. Some of the observations made by the Division Bench are quoted below: - "The purpose of the impugned Act not being either the development or maintenance of national highway by the purpose and object of the impugned Act was to ensure safe and unobstructed traffic on public roads and avoid accidents and loss of human life and property. The State legislature was competent to pass the impugned act." There can be no manner of doubt that the restriction imposed by a notification u/s 3 cannot but be in the interests of general public. Public roads are meant for the use of general public and their free and safe use must also be for the benefit of the public at large. Furthermore, the State of Jammu and Kashmir on account of its peculiar geographical position is having special security problem which has necessitated deployment of army to its farthest corners. Ensuring safe army movement on the public roads in the State especially the national highways is therefore, bound to be in the interest of the security of the State. Furthermore, the State of Jammu and Kashmir on account of its peculiar geographical position is having special security problem which has necessitated deployment of army to its farthest corners. Ensuring safe army movement on the public roads in the State especially the national highways is therefore, bound to be in the interest of the security of the State. The restriction contemplated by Sec. 3 as such cannot but be in the interest of the general public and security of the State." "It is true, that some land owners have been adversely affected by the notification issued u/s 3 of the impugned Act by the Chief Engineer from time to time and some more may be adversely affected in future as well, but this by itself would not render the restriction imposed unreasonable. Lex citius tolerate vult privatum damnum guam publicum malum i.e. law will more readily tolerate a private loss than a public evil. No amount of individual loss can outweigh the general public good or the security of the State." 57. Thus, a reasonable legislative attempt having rational relationship to a permissible economic and social planning has to be respected by the courts. In this regard, it would be apt to refer to a decision given by a Division Bench of Punjab and Haryana High Court in the case reported as Gurdyala Pvt. Ltd. v. State of Haryana (1995) 16 Legal Reports and Statutes (P) 281. Notices were served by the District Town Planner on the petitioner for demolition of the construction within 30 metres of the national highway. The petitioner came to the court. The Division Bench of the Punjab and Haryana High Court observed that the petitioner cannot claim immunity and raise construction within the area which was within 30 metres from the centre of the national highway. In para 19, following observations were made: - "In view of the provisions contained in the 1963 Act, the respondents are duty bound to implement the provisions of 1963 Act in their letter and spirit so that the future development on the two sides of the National Highways can be regulated properly. In para 19, following observations were made: - "In view of the provisions contained in the 1963 Act, the respondents are duty bound to implement the provisions of 1963 Act in their letter and spirit so that the future development on the two sides of the National Highways can be regulated properly. We, therefore, direct that:- (1) The respondents should take positive steps to remove all unauthorised constructions / encroachments on the two sides of all the National Highways passing through the State of Haryana including the Delhi Mathura road; (2) the respondents should give appropriate notices to the affected persons (in-dividuals/firms/companies) who have raised construction/have made encroachments in violation of the provisions of the 1963 Act and thereafter pass orders for removing the unauthorised construction /encroachments; (3) such steps should be taken by the respondents within a period of six months of the receipt of a certified copy of this order by the Chief Secretary to the Government of Haryana, and the Director Town and Country Planning, Haryana, Chandigarh and the District Town Planner (Encroachment) Faridabad; and (4) a detailed report about the steps taken by the respondents in compliance of this direction must positively be sent to the court within a period of seven months." 58. Not only the directions were given to remove all unauthorised construction but directions were also given that the civil courts in the state of Haryana would not give any ad-interim injunction against the action which may be initiated in pursuance of the judgment given by the High Court. In para 21, it was said: - "All the Civil Courts in the State of Haryana are directed not to pass any order of ad-interim injunction against the action initiated by the Government of Haryana for removal of unauthorised construction / encroachments on the two sides of the National Highways under the provisions of 1963 Act in pursuance of the directions given by the Court." 59. A perusal of the decisions given by the Supreme Court of India, the decision of Division Bench of this court in Kirpa Ram v. Dy. Commissioner & Ors. Writ petition No. 169/ 1971, decision of Punjab and Haryana High Court referred to above, shows restrictions of the nature contained in the notification can be imposed. Again if the executive is remiss in its obligation, then it can be reminded of the duties which it is supposed to perform. Commissioner & Ors. Writ petition No. 169/ 1971, decision of Punjab and Haryana High Court referred to above, shows restrictions of the nature contained in the notification can be imposed. Again if the executive is remiss in its obligation, then it can be reminded of the duties which it is supposed to perform. 60. As to how public property has to be dealt with and as to whether this can be disposed of by a system other than public auction was considered in the case of Common Cause Registered Society v. Union of India 1996 (6) SCC 530. The action of allotting the retail outlets for petroleum products through petrol pumps was found to be illegal and directions were given to dispose of these by public auction. The power to make allotment without associating the public at large was found to be arbitrary and in conflict with the view expressed by the Supreme Court of India in Ramana Dayaram Shetty v. international Airport Authority 1979 (3) SCC 489. What was said in Ramana Dayaram Shettys case was cited and what was quoted is being reproduced below:- "It must, therefore, be taken to be the law that where the government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms or largesse the government cannot act arbitrarily as its sweet will and like a private individual deal with any person it pleases but its action must be in confirmity with standards, r norms which is not arbitrary irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc. must be confined and structured by rational, relevant and non-discriminatory standard or norms and if the Government departs from such standard or norm in any particular case or cases the Government would be liable to be struck down......" 61. Again in paragraph 26, the view expressed is quoted as under:- "This court as back as in 1979 in Ramana Shetty case held "it must, therefore, be taken to be the law......" that even in the matter of grant of largesses including award of jobs manner and any arbitrary distribution of wealth would violate the law of the land......" "...... Again in paragraph 26, the view expressed is quoted as under:- "This court as back as in 1979 in Ramana Shetty case held "it must, therefore, be taken to be the law......" that even in the matter of grant of largesses including award of jobs manner and any arbitrary distribution of wealth would violate the law of the land......" "...... The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bonafide manner and in conformity with law......" "......It is high time that the public servants should be held personally responsible for their malafide act in the discharge of their functions as public servants......" 62. Ultimately in para 28, directions were given to dispose of the petrol pump retail dealer outlets by public auction. In this situation, it would be apt to hold that the public property is to be disposed of by public auction and not by way of allotment. What was said in para 28(4) is repeased: - "26(4) Each of the commissioned petrol pumps, taken over by the Government/ Oil Corporation (concerned) and the built-up area alongwith the site (whether leasehold or owned by the original allottee) shall be disposed of by way of public auction. The original allottees may also participate in the auction. The petrol pump shall be allotted to the highest bidder. The said allottee shall run the petrol pump on the original terms and conditions. He shall have all the rights in respect of the date of auction. Out of the auction money the value of the site and the construction as determined by the Oil Corporation shall be paid to the original allottee and the remaining money shall go to the government coffer. On receipt of the said amount the original allottee shall cease to have any right or interest in the site and the construction thereon. If the successful bidder is the original allottee, he shall pay the difference between the auction money and the value of the site and construction as determined by the Oil Corporation." 63. The above observations are in line with the thinking that if a private businessman can act in a manner which gets him the maximum benefit then would it not be apt for the State to act in a manner which gets in the maximum revenue. The above observations are in line with the thinking that if a private businessman can act in a manner which gets him the maximum benefit then would it not be apt for the State to act in a manner which gets in the maximum revenue. If it does act in a manner which gets it the maximum revenue and allows everybody to participate in the distribution of State resources, then this would be in line with recent judicial trend. To permit the disposal of public property by negotiation would not be apt. As a matter of fact whatever is the rate at which the property has been disposed of by an Authority conferred with the power of development in a city, should be taken note of in the matter of disposal of land and landed property. 64. In this regard it would be apt to refer to a decision of Full Bench of Punjab and Haryana High Court in the case of Anil Sabharwal v. State of Haryana 1997 (2) Punjab Law Reporter 7 wherein the allotment of plot out of discretionary quota was held to be bad. An appeal preferred in Supreme Court of India was dismissed. 65. From the judicial precedents noticed above, it becomes apparent that the space in question is not meant for allotment and as a matter of fact no mandamus can be issued for its allotment in favour of the appellant. As a matter of fact any direction in this regard would be against the public policy. These open spaces are meant to be used by the public. Even otherwise allotment without public auction would be against all cannons or jurisprudence dealing with disposal of public property. The case reported as Common Cause A Registered Society (Petrol Pump Case) supra be seen. 66. The respondent-authorities are not supposed to allot public property private negotiation and if it at all it is to be disposed of it has to be given by public auction so that the State gets maximum consideration/premium in this regard. 67. Thus, looking from any point of view, the appellant is not entitled to any relief. Before parting with this judgment, we would like to make a mention to the effect that it is rather distressing to note that the space between the building and the highways and the streets is being used as a private property. 67. Thus, looking from any point of view, the appellant is not entitled to any relief. Before parting with this judgment, we would like to make a mention to the effect that it is rather distressing to note that the space between the building and the highways and the streets is being used as a private property. It is used by the shopkeepers for displaying their wares. It is again being utilized by manufacturing units for manufacturing items on the highways. Repair shops are utilizing the public roads for repairing the vehicles. Provisions of the Ribbon Development Act which require in mandatory term that there should be no building activities with prohibited distance from the centre of road feet from the centre of the road is being violated. Therefore, while concluding that the appellant has no right we also give following directions which would be implemented within a period of eight weeks from today. These directions are:- (i) that the Municipal Authorities, Development Authorities and State Agencies including the agencies supposed to implement the Ribbon Development Act shall see to it that all encroachments movable or immovable are removed and steps in this regard by issuing notices are taken within the period fixed in this judgment. (ii) notices would be published in daily newspapers calling upon the persons, who have encroached upon the public streets and national highways to remove the encroachments whether movable or immovable. (iii) that till these are removed the respondent-authorities would initiate proceedings for recovering the licence fee for use and occupation and amount so realised shall be utilized for improvement of the roads and public paths, (iv) In the like manner the Notified Area Committees would remove the encroachments in the shape of Rehris which exist on the national highways and see to it that these persons are settled at alternative places. So far as the National Highways are concerned these would be cleared of the Rehris which are carrying on their business in the centre or side of the National Highway, (v) that in the event of failure to comply with the directions noticed above, the Municipal Magistrate, Traffic Magistrates shall initiate proceedings against the Municipal Authorities, Development Authorities and the Notified Area Committees under section 188 of the Ranbir Penal Code i.e. failure to perform a public duty. (vi) So far as this appeal is concerned, the appellant has encroached upon the vacant space in question. Respondents would see to it that this would be cleared and they shall also initiate proceedings for the recovery of charges for unauthorised use and occupation of the space in question. 69. The appeal otherwise is found to be without any merit and is dismissed.