JUDGMENT 1. THIS writ application is filed by the Board of Trustees for the Port of Kolkata challenging the action on the part of the Kolkata Municipal Corporation to collect car-parking fees from the public roads lying and situated in the following places: [a] Passage between Canning Warehouse and Strand Warehouse; [b] Armenian Ghat Street from Armenian Ghat to Mallick Pumping Station, Kolkata; [c] Adya Shradya Ghat Cross Road, Kolkata; [d] P.C. Tagore Ghat Cross Road, Kolkata. 2. ACCORDING to the petitioner, Board of Trustees for the Port of Kolkata is the owner of the land lying and situated in a portion of the left bank of river Hooghly in Kolkata and butted and bounded as follows, that is say, on the North by Ahiritola Ghat, on the east by Strand Road, on the south by Chandpal Ghat and on the west by the river Hooghly. ACCORDING to the petitioner, the public roads lying and situated on the plots of land mentioned hereinabove are within the area, which is owned and possessed by the petitioner. The Kolkata Municipal Corporation has been collecting car-parking fees for parking of cars on the roads lying and situated at the area mentioned hereinabove. As a result, the Land Manager of the petitioner sent a communication dated May 12/13, 2004 to the respondent No.4 requesting him to stop collection of parking fees from the aforesaid area. But the Kolkata Municipal Corporation did not pay any heed to the same. Hence, this writ application. Reliance is placed on behalf of the petitioner on a judgement dated March 18, 2005 delivered in W.P. No.20 of 2005 [Board of Trustees for the Port of Calcutta vs. Kolkata Municipal Corporation and Ors.] in which the issue of collecting car parking fees for parking of cars on the roads lying and situated at the adjacent area by the Kolkata Municipal Corporation has already been decided in favour of the petitioner. 3. IT is submitted by Mr. Alok Ghosh, learned Counsel appearing for the Kolkata Municipal Corporation that the areas under reference have been converted to public streets long back. Consequent thereupon, those areas have been dedicated to the public and those have been maintained by the Kolkata Municipal Corporation by making metal roads, providing electric lights and sewerage system. Therefore, the Kolkata Municipal Corporation is authorised to collect car-parking fees for parking of cars on those public roads. Consequent thereupon, those areas have been dedicated to the public and those have been maintained by the Kolkata Municipal Corporation by making metal roads, providing electric lights and sewerage system. Therefore, the Kolkata Municipal Corporation is authorised to collect car-parking fees for parking of cars on those public roads. IT is also submitted by Mr. Ghosh that in this writ proceeding an attempt is made to obtain a declaration in favour of the petitioner with regard to its right, title over the public roads in question. 4. I have heard the learned Counsel for the respective parties at length and I have also considered the materials on record. Upon perusal of the indenture dated March 25, 1874 executed by and between the Secretary of the State for India in Council and the Commissioners for making improvements in the Port of Kolkata [at page 8 to the supplementary affidavit to this writ application], I find that the lands lying and situated on the portion of the left bank of river Hooghly in Kolkata and butted and bounded as follows, i.e., [a] Passage between Canning Warehose and Strand Warehouse; [b] Armenian Ghat Street from Armenian Ghat to Mallick Pumping Station, Kolkata; [c] Adya Shradya Ghat Cross Road, Kolkata; [d] P.C. Tagore Ghat Cross Road, Kolkata, belong to the Board of Trustees for the Port of Calcutta. In order to adjudicate the question of vesting of public roads under reference in favour of the Kolkata Municipal Corporation, the provisions of section 343 of the Kolkata Municipal Corporation Act, 1980 are quoted below: "343. Vesting of public streets, squares, parks and gardens in the Corporation.- (1) All public streets, squares, parks and gardens in Calcutta including the soil, sub-soil, side-drain, footpaths, pavements, stones and other materials, and all erections, materials, implements, trees and other things provided therein shall vest in the Corporation: Provided that no public street, square, park or garden which immediately before the commencement of this Act vested in the Government, the Board of Trustees for the Port of Calcutta, or the Board of Trustees for the Improvement of Calcutta shall, unless so directed by the authority competent to take a decision in this behalf, vest in the Corporation by virtue of this sub-section. (2) The State Government may by notification transfer to or take over from the Corporation for a limited period for the purpose of proper maintenance or development of any public street, square, park or garden. (3) The Corporation shall transfer to the Board of Trustees for the Improvement of Calcutta or to any other statutory body such public street, square or other land as the provisions of section 54 of the Calcutta Improvement Act, 1911 (Ben. Act V of 1911) require or the State Government may direct, as the case may be. (4) Any street laid out or altered by the Board of Trustees for the Improvement of Calcutta or by any other statutory body shall vest or revest in the Corporation in accordance with the provisions of section 65 of the Calcutta Improvement Act, 1911 or if so directed by the State Improvement Act, 1911 or if so directed by the State Government in such other statutory body, as the case may be. (5) The Corporation shall maintain a register in such form and in such manner as may be prescribed and such register shall separately include a list of all public streets, squares, parks and gardens vested in the Corporation or in such other statutory bodies. (6) The Corporation may publish in such form and in such manner as may be prescribed the contents of such register for sale to the public." 5. IT appears from the proviso to sub-section (1) of section 343 of the Kolkata Municipal Corporation Act, 1980 that no public street, square, park or garden which immediately before commencement of the above act vested in the Board of Trustees for the Port of Calcutta, unless so directed by the authority competent to take a decision in this behalf, vest in the Corporation. Therefore, I find no substance in the submissions made on behalf of the Calcutta Municipal Corporation that the public roads under reference have been vested in the Corporation for conversion of those plots of land into public roads or for dedication of those roads in favour of the public. 6. IN accordance with the provisions of section 67 of the Calcutta Port Trusts Act, 1890 the Corporation was under obligation to maintain public roads or streets even if the same had been vested with the Commissioners. 6. IN accordance with the provisions of section 67 of the Calcutta Port Trusts Act, 1890 the Corporation was under obligation to maintain public roads or streets even if the same had been vested with the Commissioners. The Corporation was not entitled to discontinue or stop any road or thoroughfare without previous consent of the Commissioners and if any service was required to be rendered in respect of those public roads it should vest in the Commissioner and not to the Corporation of Calcutta. The Calcutta Port Trusts Act has been repealed and has been substituted by Major Port Trusts Act, 1963. In accordance with the provisions of section 29 of the Major Port Trusts Act, 1963, the properties and assets, which had earlier been vested in the Central Government, or any other authority for the purposes of port immediately before the commencement of the above Act would vest in the Board constituted under the aforesaid Act. Therefore, any land or road, which had been vested in the Commissioners, would automatically vest in the Board after enactment of the Major Port Trusts Act, 1963. 7. BY the nature of user a road or a street may be for public use which pre- supposes that its nature of user cannot be changed but it would not create any right in favour of the Calcutta Municipal Corporation unless the same is vested in the Calcutta Municipal Corporation. In view of the provisions of proviso to sub-section (1) of section 343 of the Kolkata Municipal Corporation Act, 1980, the Corporation cannot exercise any proprietary right in respect thereof nor the Corporation is entitled to least out the same for realization of licence fee. 8. I do not find any substance in the submissions made on behalf of the Calcutta Municipal Corporation that any attempt is made on behalf of the petitioner to obtain a declaration in this writ application with regard to the right, title of the petitioner on the land in question. The relevant portions of the judgment dated 18.3.2005 passed in W.P. No. 20 of 2005 are quoted below: "Having regard to the aforesaid clear provisions of law I am of the firm opinion that the said road has not vested with the Corporation and the Corporation has no right to treat the same as vested. The relevant portions of the judgment dated 18.3.2005 passed in W.P. No. 20 of 2005 are quoted below: "Having regard to the aforesaid clear provisions of law I am of the firm opinion that the said road has not vested with the Corporation and the Corporation has no right to treat the same as vested. The next important question, which is required to be gone into, is whether the road is a public street and if it is so then whether the Corporation would continue to have any right over it. By the nature of user a road or a street may be for public use which presupposes that its nature of user cannot be changed but that by itself would not create any right in favour of the Corporation over every public street unless the same has vested in the Corporation. Since the said Act has clearly exempted and/or has taken out of its purview land, which belonged to the petitioner, the Corporation cannot exercise any proprietary right in respect thereof. What is intended to be done by the Corporation here is that they are trying to lease out a property, which does not belong to them and realize licence fee in respect thereof. It is nobody's case that the nature of user of the public street is sought to be altered by the petitioner." 9. RATHER, a prayer is made on behalf of the petitioner before this Court for restraining the Calcutta Municipal Corporation from unauthorized use of the roads lying and situated on the land belonging to the petitioner bringing relevant materials in support of its claim thereof. 10. CONSEQUENT upon the above observations and discussions, this writ application stands allowed restraining the Calcutta Municipal Corporation from making any attempt for realization of parking fee over the public roads under reference. It is made clear that I have not gone into the question of the petitioner seeking refund of the amount, which has also been collected by the Calcutta Municipal Corporation towards the parking fees for parking of cars on the public roads under reference and the petitioner will be free to take steps in accordance with law in this regard, if it is so advised. 11. THERE will, however, be no order as to costs. 12. 11. THERE will, however, be no order as to costs. 12. URGENT xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Appeal allowed.