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Judgment
Agarwala, J.—The defendants appellants are the Commissioners of Patna City Municipality. The plaintiff-respondent is the Sajjadanshin of Dargah Hazrat Shah Arzani situate in Mohalla Dargah within Patna City. It appears that from ancient time Tazias from different quarters of Patna City are brought to the Dargah or an Imambara near the Dargah on the 10th day of Moharram every year for the purpose of performing ceremonies in connexion with the Moharram. These processions are attended by a large crowd of persons interested in the ceremonies. To reach the Imambara the processions pass through a road named the Dargah road. For the purpose of catering for the crowds,, which attend the ceremonies stall-holders have been in the habit of erecting stalls and booths along side this road on the 10th day of Moharram. In this plaint the plaintiff alleged that on the 10th day of Moharram shops had been erected on both sides of the Dargah road from time immemorial by means of settlement on behalf of the plaintiff and his ancestors and that the plaintiff and his ancestors realised rent from these shop-keepers and had done so from time immemorial without opposition. It was further alleged that the money realised in this way from the shop-keepers was applied to the Niaz of Hazrat Imam Hussain and to other functions relating to the Imambara, para. 10 of the plaint is in these terms:
It is clear from the above submissions that on the 10th day of the Moharram shop-keepers construct shops on both sides of the Dargah road within the milkiat of the plaintiff and he has got the right to realize rent from the shop-keepers.
The plaint then went on to allege that on the occasion of the 10th day of Moharram in 1938 the Amlas of the defendants had forcibly realized rent from the shop-keepers and had threatened them, that they would be fined and prosecuted if they did not pay rent to the defendants, in consequence of which some of the shop-keepers out of fear paid rent to the defendants, while the remainder paid rent to the plaintiff. The reliefs which the plaintiff claimed on these allegations were first, a declaration of his right to realise rent from the shopkeepers on the Dargah road on the 10th day of Moharram, and, secondly, a permanent injunction restraining the defendants from offering resistance or making collection. The third relief was the recovery of Rs. 25 from the defendants which sum, it was alleged, the defendants had realised from the shop-keepers in 1938 on the 10th day of the Moharram. The cause of action was stated to have arisen on 13th March 1938, corresponding to the 10th day of the Moharram of that year, and on 23rd March 1938, when the plaintiff gave notice to the defendants of their claim.
The defence was that the Dargah road is a public road vested in the Municipality, that the plaintiff had no right to settle shop-keepers on this road on the 10th day of Moharram, and a denial that the defendants had realised any rent from the shopkeepers.
Now, if the litigation had been fought out on these pleadings, the issues between the parties would clearly have been whether the Dargah road is a public road vested in the Municipality or whether it is a private road belonging to the institution of which the plaintiff is the head. That, however, is not the course which the litigation took. It may be mentioned that the Courts below have rejected the plaintiff''s claim in respect of the third relief on the ground that it had not been proved that the defendants had realised the Rs. 25 or any other sum, from the stall-holders on the occasion in question. There is no finding that the defendants either interfered with the making of collections from the stall-holders by the plaintiff on the 10th day of Moharram in 1938, or that they have threatened to interfere with them in the future. Nevertheless, a permanent injunction has been issued against the defendants in the terms prayed for, in the plaint.
The course which the litigation has taken has brought out more dearly than the pleadings the points on which the parties are at issue. It emerges that what the plaintiff claims is that by custom he is entitled to realise tolls from persons who hold stalls or booths on the Dargah road on the 10th day of the Moharram, and that what the defendants claim is that they are entitled to levy fees from persons holding stalls and booths on roads within the municipal area including the Dargah road.
First of all, I propose to deal with the case as it arises on the plaint and to consider the plaintiff''s allegation that the Dargah road is a private road. In the Thakbast map of 1840 this road is shown as shah rah. In the municipal survey of 1932 the Municipality is entered as owner and occupier of the road. Section 11, Bihar and Orissa Municipal Survey Act, 1920, provides that every entry in the record finally published shall be evidence of the matter referred to in such entry and, in any suit or proceeding to which the Commissioners are party, shall be presumed to be correct until it is proved by evidence to be incorrect. The Court below has accepted the entry in the municipal survey papers, and has referred to no evidence rebutting the correctness of that entry. But it has been contended in this Court on behalf of the plaintiff that if an entry in a Record of Eights is inconsistent with the general law, the general law must prevail and the entry must be taken to be inaccurate, although the section itself provides that the correctness of the entry shall be presumed until its inaccuracy is established by evidence. However, assuming that the proposition is correct, I propose to examine the effect of it in the present case.
The learned advocate for the plaintiff contends that the general law is that private roads do not vest in the Municipality, and, as this road is said to have been made by the predecessors of the plaintiff many years ago, at a time when the whole of the area in this mohalla belonged to the plaintiff''s predecessor, it is contended that the road is a private road. Reference was made to Section 58, Bihar and Orissa Municipal Act, 1922, corresponding to Section 30, Bengal Municipal Act of 1884, which was in operation in this province before the former Act was enacted. Section 58 of, the present Act, like Section 30 of the former Act, provides that:
All property within the Municipality of the nature hereinafter in this section specified, other than private property or property maintained by Government or another local authority, shall vest in and belong to the Commissioners, and shall be under their direction, management and control.
The kind of property specified in the section includes roads. If, therefore, the Dargah road be a private road, this section does not vest it in the Municipality, and the entry in the Record of Rights will, therefore, be inconsistent with what the learned advocate for the plaintiff terms the "general law." Section 61 of the present Act, however, corresponding to Section 31 of the former Act, provides that:
The Commissioner at a meeting may agree with the person in whom the property in any road, is vested to take over the property therein or, the control thereof, and after such agreement may declare by notice in writing that such road has been transferred to the Commissioners.
Thereupon the property therein, or control thereof, as the case may be, vests in the Commissioners, and the road is thenceforth to be maintained out of municipal funds. It may be mentioned that there is evidence in this case, the evidence of a municipal employee whom the learned trial Court saw no reason to disbelieve, that the Dargah road has for some time been maintained by the Municipality. This last mentioned fact itself strongly suggests that the entry in the Record of Rights is correct. However that may be, the proposition put forward by the learned advocate for the plaintiff that the correctness of an entry in the Record of Rights is rebutted by showing that the entry is inconsistent with the general law has itself not been accepted in this Court. In Bishun Pargash Narain Singh v. Sheosaran Teli AIR 1922 Pat. 497 a question arose whether certain trees belonged to the landlord or to the tenant. There was an entry in the Record of Rights stating that they belonged to the tenant. The general law, however, is that trees belong to the landlord, and in that case the landlord relied on this general law to rebut the presumption of correctness attaching to the entry in the Record of Rights. The learned Chief Justice, who presided over the Bench which heard the appeal, observed:
It must be presumed that when the Assistant Settlement Officer heard the parties and arrived at the conclusion that the trees belonged to the tenants he had taken into consideration the question if whether there was or was not a custom whereby She right in the trees belonged to the tenants, or whether possibly they acquired that right in some: other way as by some agreement, between the landlord and themselves.
Applying these observations to the facts of the present case, I must presume that at the time the Settlement Officer made the entry in the Record of Rights he was satisfied that the Dargah road had become vested in the municipality either by reason of the owner of it having consented to this u/s 61 of the present Act, or u/s 30 of the previous Act, or in some other way, and the fact that the municipality has been maintaining this road is a strong piece of evidence in support of the correctness of the entry. In my opinion, therefore, in so far as the plaintiff claims a declaration based on his ownership of the road his claim must fail.
Before considering whether the plaintiff is entitled to a declaration on the basis of custom, I propose to deal with the prayer for an injunction. As I have already stated, the injunction sought by the plaintiff is of a two-fold nature, first, restraining the defendants from resisting the plaintiff''s collection of tolls from the stall-holders and, secondly, restraining the defendants from making any collections themselves. There being no finding that the defendants in fact resisted the plaintiff''s making collection from the stall-holders or threatening to do so in the future, the plaintiff has no cause of action against the defendants entitling him to an injunction against them restraining them from resisting the plaintiff''s collection of tolls from the stallholders.
With regard to the prayer for an injunction to restrain the defendants from themselves making any collection from the stall-holders, the defendants contend that they are empowered by statute to realise fees from such stall-holders, and cannot be restrained from doing so. Section 185 of the Act of 1922 empowers the Commissioners to make by-laws consistent with the Act, among other things: "to prevent, prohibit or regulate the use or occupation of any or all public roads or places by any person for the sale of articles or for the exercise of any calling or for setting up any booth or stall, and to provide for the levy of fees for such use or occupation."
In exercise of the powers thus conferred the municipality has framed by-laws which'' were published under Government Notification No. 2374, dated 27th February 1932. The first of these bylaws provides that:
No person shall be permitted to use or occupy any part of any public road or place for the sale of articles or the exercise of any calling or the setting up of any booth or stall unless he has previously obtained from the Municipal Commissioners a licence in form A appended to these by-laws.
There is a proviso that no licence shall be granted for the erection of a permanent booth or stall. By-law No. 2 provides that the licence granted under by-law No. 1 may be granted for such specified period, not exceeding one year, as may be determined by the Municipal Commissioners, and that all such licenses shall expire not later than the last day of the year within which they were granted. The third by-law provides that the scale of fees leviable for use or occupation shall be at the rate of 3 pies a day, or 3 annas a month for every square foot of area used or occupied. It is these fees which the defendants claim that they are entitled to realise from the stall-holders. On behalf of the plaintiff, it is contended that if the levying of these fees is inconsistent with a pre-existing custom, the defendants should be restrained from levying them, and that the defendants should also be restrained from levying these fees it they affected the customary right which the plaintiff claims. So far as the claim is based on the contention that the levying of these fees is inconsistent with a preexisting custom, namely the right of the stall-holders to erect their stalls on the Dargah road on the 10th day of Moharram; without the payment of fees to the Municipality, it may be observed that in the present suit the plaintiff is of suing as representing the stallholders, and the stall-holders are not parties to the litigation and have not in this litigation put forward any claim that they are exempt from payment of the fees which the defendants seek to levy. With regard to the suggestion made in the course of the argument on behalf of the respondent that as these fees had never been levied they could not be levied now, it will be observed, however, that all the powers conferred on the municipality empowering them to impose taxes or levy fees are permissive powers, and the municipality is not bound to exercise those powers, and presumably does so only when funds are required for municipal administration. The mere fact, therefore, that the municipality has not levied fees on the stall-holders before, does not provide a basis on which it can be held that a custom has grown up exonerating stallholders from paying the fees which the municipality has now decided to levy. With regard to the contention that the levying of these fees adversely affects the customary right, which the plaintiff claims, of realising tolls from the stall-holders so far as I understand this contention it is based on the assumption that the levying of fees from the stall-holders by the municipality will deter them from putting up stalls on the Dargah road on 10th day of the Moharram and thus deprive the plaintiff of the tolls which he would otherwise collect. The mere fact that stall-holders may be deterred from carrying on their business on that day of the year if they are called upon to pay a fee which the municipality is empowered to levy is not, in my opinion, a ground for restraining the municipality from levying the fee.
For these reasons, in my view, the plaintiff is not entitled to the permanent injunction which he seeks.
There remains to consider the alleged custom on which the plaintiff''s claim is based. Now, what is the custom which the plaintiff alleges? It is a custom entitling him to levy tolls on persons erecting 2 stalls or booths on the Dargah road on the 10th day of the Moharram. How can the plaintiff obtain a declaration of this right in the absence of the persons interested in challenging it? The defendants are not interested in denying the plaintiff''s right to levy these tolls, nor do the defendants represent the persons who are interested in denying the plaintiff''s right namely the stall-holders and persons contemplating the holding of stalls on the Dargah road. The persons who are interested in resisting the plaintiff''s claim for a declaration of his right to realise tolls from the stall-holders are the stallholders themselves and persons who may desire to hold stalls on the Dargah road in future, but these persons are not parties to this litigation and are not represented by any party to this litigation. In their absence the plaintiff is not entitled to the declaration which he seeks. For these reasons the plaintiff''s claim for a declaration of his right to realise tolls or rent from the stall-holders must also be disallowed.
In the result the appeal is allowed, the decision of the Court below is reversed, and the suit is dismissed with costs throughout.