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Allahabad High Court · body

2003 DIGILAW 2610 (ALL)

MADAN LAL BHATIA v. MUNICIPAL BOARD

2003-11-07

PRAKASH KRISHNA

body2003
PRAKASH KRISHNA, J. ( 1 ) THIS is plaintiffs appeal. Suit No, 190 of 1971 was filed for permanent injunction to restrain the defendant Municipal Board from demolishing or otherwise removing or causing damages to the shop No. 71 situate on Station Road, Moradabad. ( 2 ) THE plaint was instituted with the allegation that the Municipal Board, Moradabad, through its executive Officer granted a licence to the plaintiff to construct a permanent shop over an area of 12 ft. x 8 ft. on Station Road, Moradabad. The plaintiff had raised permanent construction attached to the earth and had spent about Rs. 5,000 in the construction and had fixed the shutter and got electricity installed. The shop is being used by the plaintiff for carrying on his business of cloths and residence. The rent up to September, 1971, has already been paid. The plaintiff has been served with a notice by the Municipal Board through its Tax Superintendent dated 27th november, 1971, in which the dimensions of the shop have wrongly been mentioned and the plaintiff by the said notice was called upon to remove the construction within 3 days. Plea that the Executive Officer of the Municipal Board has no right to revoke the licence as mentioned in the notice was raised. Further plea was that the permission granted to the plaintiff could not be revoked by the notice dated 27th November 1971. The suit was filed on 30th November, 1971. ( 3 ) THE Municipal Board, Moradabad, defended the suit on the allegation that the plaintiff has not constructed a pakka shop and that the plaintiff was never permitted for raising any permanent construction and the allegation that the plaintiff had spent considerable amount of money in raising the construction was also denied. The Municipal Board came up with the case that the disputed land was part of the patari land. It was further pleaded that at the time of partition of the country in 1947 with a view to rehabilitate the displaced persons, permission was granted for putting stall on the road patari and the Municipal Board has power to revoke the licence at any time. The licence granted to the plaintiff has been validly revoked by the order dated 11. 11. 1971 passed by the Executive Officer. The licence granted to the plaintiff has been validly revoked by the order dated 11. 11. 1971 passed by the Executive Officer. A plea was also raised that the plaintiff has occupied more land than he was permitted to occupy by the aforesaid licence. ( 4 ) THE trial court framed 6 issues and came to the conclusion that the plaintiff is the licensee tenant of the land in suit on behalf of the defendant and his licence cannot be revoked. Issue No. 5 was to the effect as to whether the land in suit forms part of the road patari and if so its effect. On this issue the trial court has recorded a finding that the land in suit forms part of the road patari. The trial court has also observed that before it no provisions of law was shown to the effect that the Municipal Board cannot grant an irrevocable licence in respect of the road side patari land. This observation has been made under Issue No. 1 by the trial court. In appeal the judgment of the trial court has been reversed and it has been held that the Executive Officer of municipal Board has no right to grant a permanent licence within the provisions of U. P. Municipalities Act. Challenging the judgment of the appellate court the present appeal has been filed. ( 5 ) HEARD Sri A. B. Saran, senior advocate, assisted by Shri Parmatma Rai for the appellant. None appeared on behalf of the respondent. ( 6 ) IT was contended by the learned counsel that the appellant being in possession of the disputed land, he cannot be evicted otherwise in due process of law. Reliance has been placed by him upon two Supreme Court judgments in State of U. P. v. Maharaja Dharmander Prasad Singh etc. , air 1989 SC 997 and Krishna Ram v. Mrs. Shobha Venkat Rao. , AIR 1989 SC 2097 . ( 7 ) THE question which falls for determination in this appeal is whether the Executive Officer of municipal Board can grant permanent licence under Section 60 of the U. P. Municipalities Act. The second question which requires consideration is whether a Municipal Board has any right to grant a licence in respect of a patart i. e,, road side land in favour of a person. The second question which requires consideration is whether a Municipal Board has any right to grant a licence in respect of a patart i. e,, road side land in favour of a person. ( 8 ) THE basis of the plaintiffs claim is permission dated 30th January, 1969, granted by the executive Officer, Municipal Board. The said permission is quoted below ; "you are hereby allotted left hand patri land Station Road, Moradabad at Rs. 54 rent per year and a licence is granted to you for the construction of a shop No. 71 for purposes of business and residence over the said land permanently. " ( 9 ) FROM the above it is clear that the plaintiff was allotted left-hand patart land. Station Road, moradabad at Rs. 54 rent per year and a licence was granted for construction of shop No. 71 for the purposes of business and residence over the said land permanently. Placing reliance upon the aforesaid permission it was contended by the learned senior advocate that a licence granted was of a permanent nature and is irrevocable in view of Section 60 of the Easement Act. Section 60 of Easement Act provides that a licence may be revoked by the grantor unless (a) it is coupled with the transfer of the property and such transfer is in force ; (b) the licensee acting upon licence, has executed a work of permanent character and incurred expenses in the execution. The court below has held that the Executive Officer of Municipal Board has no authority to grant a licence, which is irrevocable. It interpreted the permission dated 30th January, 1969 along with the receipts being paper No. 58 dated 19th January, 1971 and receipt being paper No. 59 dated 13th September, 1971. In these receipts it has been mentioned that the rent is being received on account of Tehbazari licence fee of land for wooden stall at Station Road E. P. for period 1. 4. 1970 to 30th September, 1970 and for the period 1. 4. 1971 to 30th September, 1971. Interpreting these two rent receipts along with the grant dated 30th January, 1969 the court below has come to the conclusion that it was a licence simplicitor and was revocable. The learned counsel has placed great emphasis on the word permanently mentioned in the grant dated 30th January, 1969. 4. 1971 to 30th September, 1971. Interpreting these two rent receipts along with the grant dated 30th January, 1969 the court below has come to the conclusion that it was a licence simplicitor and was revocable. The learned counsel has placed great emphasis on the word permanently mentioned in the grant dated 30th January, 1969. Now the question arises as to whether licence granted in favour of the plaintiff is revocable or not? ( 10 ) SECTION 60 of the U. P. Municipalities Act confers the power on Executive Officer to discharge the functions of Board with respect to the matters enumerated therein. Clause A of section 60 (1) of the Act gives power to an Executive Officer to grant a licence under his signature or to refuse any licence, which can be granted by a Board other than a licence for market, a slaughterhouse or hackney carriage. The above grant was obviously issued by the executive Officer in exercise of power conferred on it by Sub-clause (a) of Section 60 (1) of the u. P. Municipalities Act. Sub-clause (b) of Section 60 (1) of the Act is also important. It confers power on the Executive Officer to suspend or withdraw any such licence. The words such licence are very important. These words should be read along with the power to grant licence conferred under Sub-section (a) of Section 60 (1) of the Act. A joint reading of Clauses (a) and (b) of Section 60 (1) of the Act shows that the Executive Officer has power to grant only those licences, which can be suspended or withdrawn by him in exercise of power under Clause (b ). The words such licence draw the colour from Clause (a) of Section 60 (1) of the Act, Meaning thereby that the Executive Officer has power to grant only such licences which can be suspended or withdrawn by him. The licences which cannot be withdrawn or suspended by him cannot be granted by him. Object of Clause (b) of Section 60 (1) of the Act is obvious. The Executive officer has no power to grant any such licence, which cannot be suspended or withdrawn by him. Meaning thereby a licence which cannot be revoked under law cannot be granted by him. Therefore, the stand of the plaintiff that the licence granted in his favour is irrevocable has no substance. The Executive officer has no power to grant any such licence, which cannot be suspended or withdrawn by him. Meaning thereby a licence which cannot be revoked under law cannot be granted by him. Therefore, the stand of the plaintiff that the licence granted in his favour is irrevocable has no substance. Clauses (a) and (b) of Section 60 of the Easement Act will have no application to the licences granted by the Executive Officer under Section 60 of the U. P. Municipalities Act. Although the plaintiff pleaded in the plaint that the permanent construction was raised by him by putting shutter etc. The plaintiff has been examined as P. W. 1 in the suit. In his cross-examination he has admitted that the shop is in the shape of a "wooden stall". There is no pakka wall around the shop in question. The chabutara on which the shop exists is pakka, This part of the statement was not considered by the trial court. This statement of the P. W. 1 supports the version of the defendant that the displaced persons from Pakistan at the time of partition of the country were permitted to put wooden shops on the patari side in order to rehabilitate them. The two rent receipts referred to above also show that the plaintiff was given a vacant piece of land and he was paying Tehbazari for using the same. ( 11 ) ASSUMING" for the sake of argument that the licence in question was irrevocable the licence was granted by the Executive Officer within the powers conferred upon him under the U. P. Municipalities Act and the said Act also gives power to the Executive Officer to suspend or withdraw the licence. In my view in such a situation the provisions of Easement Act will have no application and the power to suspend or withdraw any such licence shall be with the Executive officer under Section 60 (a) (b) of the U. P. Municipalities Act, being a special Act qua the easement Act for the licences granted by or on behalf of the Municipality. Special Act will exclude the provisions of the General Act. In view of the above discussion, the finding of the court below that the licence was revocable is correct and there is no error of law. Special Act will exclude the provisions of the General Act. In view of the above discussion, the finding of the court below that the licence was revocable is correct and there is no error of law. ( 12 ) IT was then contended that the plaintiff cannot be evicted otherwise than in due course of law. This argument has no substance and the aforesaid two judgments of the Supreme Court have no application to the facts of the present case. The defendant had initiated proceeding for eviction in accordance with the provisions of U. P. Municipalities Act after revoking the licence. Reference can be made to a judgment of this Court in Sobha Ram v. Municipal Board, 1965 ALJ 553. The municipal Board cancelled the licence by means of a resolution and thereupon the plaintiff was called upon to remove the disputed stall. This is the procedure which has been adopted by the municipal Board in the exercise of power conferred upon it and cannot be said that the plaintiff is being evicted otherwise than in due course of law. ( 13 ) THE above conclusion that the plaintiff has no right to occupy the disputed piece of land in pursuance of the aforesaid grant dated 30th January, 1969, can be reached from another angle also. The case of the defendant was that the land on which the disputed shop exists is part of patari land. This fact is also clear from the grant dated 30th January, 1969, Itself. The plaintiff was allotted left hand patari land, Station Road, Moradabad. The trial court under Issue No. 5 has recorded a finding that "the land in suit forms part of road patari. " The Supreme Court in the case of Municipal Board Manaiaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 , has discussed the right of Municipal Board in respect of the roadside land whether included in the road. After discussing the law at the great length with regard to the expression "road" it has been held that the side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of pathway use for a long time by the public, it has topographical and permanent landmarks and the manner and mode of its maintenance usually indicate existent of user. In the case of pathway use for a long time by the public, it has topographical and permanent landmarks and the manner and mode of its maintenance usually indicate existent of user. The side lands are also included in the public way as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. It has exclusive right to maintain and control the surface of soil and "so much of the soil below and of the above surface is necessary to enable it adequately maintain the street as a street". The Supreme Court concluded that a Municipality cannot put any structure on the public pathway, which are not necessary for the maintenance or user of it as a pathway. It has further held that putting up of the structure for installation of statue of Mahatma Gandhi or for Piyo or library are not necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorized acts of the Municipality. This is the leading case of the Supreme Court on the subject. The law has been further developed on the question of obligation of a Municipal Board to provide free flow of traffic and pedestrians right to pass freely and safely. In Ahmedabad Municipal Corporation v. Nawab Khan and Gulab Khan and Ors. , AIR 1997 SC 152 , the Supreme Court has held that the Municipal Corporation should also be vigilant and not allow encroachment of the pavements and footpaths. As soon as they notice any encroachment they should forthwith take steps to have them removed and would not allow them to settle down for a long time. in this case, the Supreme court has considered the obligation of Municipal Board to provide shelter to the public, in view of the Article 21 of the Constitution of India. This Court in the case of Pramod Tiwari v. S. S. P. of Police, 1999 (2) AWC 1434 : 1999 ALJ 2063, has held that there can be no fundamental right to carry on the business on public road. The Municipal Corporation can demolish the unauthorized construction in its anti-encroachment drive to clear the road. in another case this court in Durga Prasad and Anr. v. State of U. P. , 1999 (2) AWC 1452 : 1999 (2) ARC 120, has held that the road is meant for traffic. The Municipal Corporation can demolish the unauthorized construction in its anti-encroachment drive to clear the road. in another case this court in Durga Prasad and Anr. v. State of U. P. , 1999 (2) AWC 1452 : 1999 (2) ARC 120, has held that the road is meant for traffic. The footpaths and pavements are public property, which are intended to serve the convenience of the general public. They are not meant for private use and their use for private purposes frustrates the very object for which they are carved out from portions of public streets. In view of the above legal position the plaintiff has no right to claim perpetual injunction restraining the defendant to demolish or damage the disputed shop, which was in a shape of wooden stall on a part of patari road. Patari road is meant for pedestrians to pass and re-pass. A relief for perpetual injunction is a discretionary relief and in appropriate cases Court may refuse to grant discretionary relief. in my view this is one of those cases where this relief could not be granted to the plaintiff. The plaintiff in his deposition as P. W. 1 has admitted that his shop in between a nala of Nagar Palika and road. The houses of other persons are beyond the nala of Municipal Board. This clearly discloses that the disputed shop is on the patari road and is a source of obstruction to the public at large. There is no merit in the appeal. The appeal is dismissed. .