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Judgment
Soumitra Sen, J.—The disputes involved in the writ application relate to exercise of right in respect of a land measuring more or less 255 Sq. Mts. known as Cross Road No. 5 (New C.I.T. Road) adjoining the Strand Road, Kolkata (hereinafter referred to as the "said road"). The petitioner had contended that the said road belongs to them and they are the owners thereof. Accordingly, they submit that the Kolkata Municipal Corporation (hereinafter referred to as the Corporation) has no right to deal with the said road as their own and therefore cannot permit anyone to use the said road for parking facilities and also cannot realize parking fees in respect thereof.
Considering the said road to be their property, the petitioner invited tenders for grant of licence for the purpose of collecting parking fees. At that juncture, the Corporation informed the petitioner by a letter dated 26th of December, 2002 that since the said road was being maintained and conserved by the Corporation and that since the said road is being used for night parking facilities since 1998, no further steps should be taken with regard to allotment of parking by the petitioner in terms of their tender.
In respect of the said road in question the Corporation had already appointed a licensee for realization of licence fee which licence was valid for 2 years with effect from 1st January, 2003.
The petitioner floated another tender in the year 2003, whereupon the Corporation again by a letter dated 1st November, 2003, requested the petitioner to abstain from allotment of the parking land in respect of the said road in terms of the tender. In the said letter similar contentions were raised inter alia that the road was being maintained and conserved by the Corporation.
Subsequent thereto a meeting was held between the petitioner and the Corporation on 10th of December, 2003, wherein after discussion it was decided that the Corporation will not grant any further extension of the licence after 31st of December, 2004 and accordingly the tender floated by the petitioner was to be deferred. It is significant to point out here that in view of the stand taken by the Corporation the petitioner had earlier filed a writ application. However, because of the specific understanding that was arrived at the meeting held on 10th December, 2003, which clearly recorded in the letter dated 31st December, 2004, written by the Corporation, the writ application was allowed to be withdrawn. After the writ petition was withdrawn the Corporation by a letter dated 30th December, 2004. informed the petitioner that the offer which was given by the letter dated 13th December, 2003, was based on a mistaken notion of the statute and accordingly their earlier offer that the licence will not be extended beyond 31st December, 2004, would no longer be accepted.
The basic contention, which comes up for consideration here, is whether the said road is the property of the petitioner or the respondent-Corporation. From the documents annexed and the averments contained in the petition, there is no doubt that the said road is the property of the petitioner. The question, therefore, would arise whether the said road has vested in the Corporation by reason of the specific provisions contained in Section 343 of the K.M.C. Act, 1983 (hereinafter referred to as the said Act). It has been submitted on behalf of the Corporation that since the said road is a public road as defined u/s 2(71) of the said Act. It was also submitted that the said road has been developed and maintained by the Corporation since long and therefore by long user they have acquired a right in respect thereof.
From the letter dated 30th December, 2004, written by the Corporation it is clear that the Corporation is proceeding on the basis and is seeking to exercise its right in respect of the said road as it has vested with the Corporation.
In terms of Section 67 of the Calcutta Port Trust Act, 1890 it has been provided that the Corporation was required to maintain a public street even if the same has vested with the Commissioners, It has been further provided that the Corporation was not entitled to discontinue or stop any road or thoroughfare without the previous consent of the Commissioners and if any service to be rendered in respect of the said public road is discontinued or stopped it shall vest in the Commissioners, and not in the Corporation of Calcutta.
The Calcutta Port Trust Act has been repealed and has been substituted by the Major Port Trust Act, 1963. In terms of Section 29 of the Major Port Trust Act, 1963, the Property and Assets, which had earlier vested in the Central Government, or any other authority for the purposes of the port immediately before commencement of the said Major Port Trust Act would vest in the Board constituted under the said Act. Therefore, it is clear that any land or road, which had vested in, the Commission would automatically vest in the Board after enactment of the Major Port Trust Act, 1963.
The proviso of Section 343 of the said Act clearly mentions that land, which belongs to the Port Trust, shall not vest in the Corporation by reason of the deeming provisions contained in Section 343. For the sake of convenience the said Section 343 is set out as under:
"343. Vesting of public streets, squares, parks and gardens in the Corporation.-(l) 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 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."
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 pre-supposes 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.
It has been submitted on behalf of the Corporation that by reason of the provision contained in Section 355 of the said Act they have the power close any portion of a public street and declare it as a fee parking area. Before the provisions of Section 355 can be applied the street in question must be a public street as defined u/s 2(71) read with Section 343. By reason of the proviso to Sub-section (1) of Section 343 the said road in question has not vested with the Corporation, therefore, cannot be deemed to be a public street in terms of Section 355 of the said Act.
Section 343 of the said Act provides that all public streets shall vest with the Corporation subject to the exception provided in the proviso. Therefore, the nature of user of a street would determine whether it is a public street or not, but the Corporation acquires right in respect of such public street by reason of the deeming provisions of vesting contained in Section 343. The clear intention of the legislature appears to me that except for certain public street, square, park or garden which had vested in the Government or the Board of Trustees for the Port of Calcutta, or the Board of Trustees for the Improvement of Calcutta others shall vest in the Corporation, giving them a right to deal with the same in accordance with the various provisions of the said Act.
On behalf of the Corporation a decision reported in M/s. Gobind Pershad Jagdish Pershad Vs. New Delhi Municipal Committee, ; has been relied upon in support of the proposition that long user of a place can be held to be a public street if the same has been used by the public at large. In the case before the Hon''ble Supreme Court there was a verandah, which was a passage, accessible to the public and was being used for about two decades public for passing and re-passing. On those facts the Hon''ble Supreme Court has held that because of the nature of user it should be deemed to be a public road and the owner of the same had no right to prevent the public from using such a passage. The facts of the instant case are totally different. The said road is not owned by any private individual, it is owned by the petitioner by reason of statutory provisions. The right of the petitioner to retain control of the said land as a owner thereof has been given to them under a statute. Moreover, as I have already indicated that it is nobody''s case that the nature of user is sought to be altered and/or changed. Therefore, in my opinion, the case relied upon by the Corporation has no application in the facts and circumstances of the case.
Having regard to the submissions made on behalf of the parties and having regard to the facts and circumstances of the case and after having considered the relevant legal provisions, I am of the opinion that the respondent-Corporation has no right over in respect of the said road and are also not entitled to grant any licence for realization of parking fee over the said road which can only be lawfully done by the petitioner. Accordingly, The writ petition is allowed. No order as to costs.
Later :
It is made clear that I have not gone into the question of the petitioner seeking refund of the amount, which has been collected by the Kolkata Municipal Corporation in this writ application. The petitioner is free to take such action as he may be advised in law.
Stay of operative part of the Judgment and order is prayed for. Such prayer is refused.