Nuddea Mills Co. Ltd. v. Sidheswar Chatterjee

The Judgment of the Court was as follows:—

This appeal arises out of a suit brought by the Plaintiff-Respondent against the Appellant Company and the Naihaty Municipality for a declaration of the Plaintiff's right of way over a certain public road called Radhaballav Road and for other consequential reliefs. The Plaintiff's case is that long ago a temple was built and dedicated by one of his ancestors on Radhaballav Road—a little away from another public road called Ferry Fund Road connected by Radhavallav Road. The Plaintiff further claimed easement of necessity over the road. He sought for a further declaration that the act of the Municipality in closing up the road was ultra vires and also for a permanent injunction restraining the Defendants from interfering with his right of way over the road to reach the temple and for a direction on the Appellants to remove obstructions put by them across the road. The facts are that there was a road called Radhaballav Road leading from Ferry Fund Road westward to the Hooghly; there were houses on both sides of the road all of which except the temple were acquired by the Appellant Company and they have erected at great cost a jute mill which they are working. The Defendant Municipality sold the whole of Radhaballav Road to the Appellant Company who have included it in their mill compound by a boundary wall. The road from the Hooghly to the temple has been closed and no objection to this because the Appellants have acquired all the lands on both sides of the road. The dispute is with regard to the portion of Radhaballav Road from the temple to Ferry Fund Road. The Municipality Aiding it probably not worth while to maintain this portion of the road sold the entire road to the mills. In order to allow the Plaintiff to reach the temple a passage was given to the Plaintiff by the Appellants of which we will speak later. The defence of the Appellants and of the Municipality is that in the exercise of the power vested in the Municipality under the law it has transferred this road to the Appellants that the Plaintiff has no absolute right of passage over it and that the passage given by the Appellants to the Plaintiff is sufficient for the purpose. The trial Court found for the Plaintiff on all the points on which he based his title to the road, and held that the Municipality had no right to sell the land to the mill; and further that the Plaintiff had an easement of necessity over the road. The lower Appellate Court confirmed all these findings but in view of the decision of the Allahabad High Court in Fazal Haq v. Maha Chand (1) thought that the Plaintiff should be given a passage in lieu of the road and the passage proposed by the Appellants from Ferry Fund Road to the temple almost diagonally across the Appellant's lands would suit but that it should be walled up on both sides by the Appellant without the gate put up by them at the head of the passage. In this view the learned Additional District Judge passed a decree to the effect that the Appellant Company should remove their gate from the passage keeping an intermediate space of at least 6 feet in width and should wall it up on both sides. If they failed to do so in a fortnight the Plaintiff would be at liberty to execute the decree and to have the old Radhaballav Road re-opened on demolishing the Company's boundary wall and to have access to the temple by that road. This order, to a certain extent, makes our position easy and leaves us to consider what should be the proper order passed in the circumstances of the present case. But as the lower Appellate Court has confirmed the views of the first Court on the questions of law raised which have been pressed before us by the learned Advocate for the Respondents it is necessary to examine them in brief.

It is argued in the first place that the Municipality has no power under Act III of 1884 to sell the road to the Appellants. The learned Counsel for the Appellants has, on the other hand, broadly contended that the Court has no power to question the discretion of the Municipality in this matter. This contention should not be acceded to for if the Municipality has acted ultra vires the Civil Court has the power to interfere as also the power to grant proper relief to the aggrieved party. This is the principle on which Civil Courts interfere with acts of public bodies, such as Municipalities, created by statutes. There are numerous cases on this point but it is enough to refer to Kameshwar Pershad v. The Chairman of the Bhabaa Municipality (2).

Now with regard to the Municipality selling the road to the Appellants it is contended on behalf of the Respondents that no such power is vested in the Municipality whereas it is argued by the Appellant that the act of the Municipality was within the law. Under sec. 30 of the Bengal Municipal Act III of 1884 all roads including the soil have been made to vest and belong to the Commissioners of the Municipality. The words “including the soil” were introduced by Act IV of 1894. The section, as it now stands, means that the roads together with the sub-soil belong to the Municipality and so do all bridges, tanks, ghats, etc., but not the soil under them. Under sec. 34, the Commissioners are empowered to sell, let, exchange or otherwise dispose of any land not required for the purpose of this Act. Before the amendment of 1894 it would appear that the Commissioners had no power to dispose of the roads and after the amendment it would equally appear that they have obtained a proprietary right over the roads. Now the question is whether the word “land” as used in sec. 34 includes roads. The learned Advocate for the Respondent has strenuously argued that “land” in sec. 34 does not include road but means lands other than roads which belong to the Municipality. We are unable to agree with this interpretation of the law. Land has not been defined fully in the Act but in sec. vi(5) it is said to include the benefits arising out of the lands, etc. This definition does not help us very much in determining whether the word “land” as used in sec. 34 includes road and the soil. There does not appear to be sufficient reason why the ordinary significance of the word “land” should be abridged by excluding roads only. The amending Act of 1394 left sec. 34 which is reproduction of sec. 34 of the Act of 1875 and of sec. 13 of the Act of 1864 untouched, but widened the rights of the Commissioners over roads without any reservation. In the old Acts of 1864 and 1875 only the surface of a road vested in the Commissioners and therefore the view was rightly held that under the old law the Commissioners had no power to dispose of or transfer a road as it may now be maintained that they have no such power over bridges, tanks, etc., the subsoil of which does not vest in them.

This brings us to the next question as to whether the land, assuming it to include road, was disposed of as it was no longer required “for the purpose of this Act.” If it was, then the Civil Court has so right to challenge or investigate into the propriety of the Commissioner's action. If it was not, then, however reasonable the act of the Commissioners might appear, the Court would declare such act illegal and ultra, vires. Now, “the purpose of the Act” is not defined in the Act itself but some indication as to what the purposes of the Act are may be gathered by a reference to sec. 69 of the Act which details some of the objects to which the Municipal fund may be devoted. After indicating some of the heads on which the Municipal funds may be expended, cl. (xvii) of the section, says “generally, to carry out the purposes of the Act.” This does not bring us very much nearer to what “the purposes of the Act” means. In cl. (3) of sec. 69 it is again said that the “Commissioners may do all things, not being inconsistent with this Act, which may be necessary to carry out the purposes of this section.” The purposes of the Act must be the purposes for which the Municipalities in the Mufassil are created. The preamble to Act III of 1864 which may be taken to be the earliest Act relating to Mufassil Municipalities runs in these words: “An Act to provide for the appointment of Municipal Commissioners in towns and other places in the Provinces under the control of the Lieutenant Governor of Bengal, and to make better provision for the conservancy, improvement and watching thereof, and for the levying of rates and taxes therein.” The objects therein mentioned may be taken to be the purposes for which the Municipalities came into existence. The power of the Commissioners to transfer lands including roads, etc., must, therefore, be exercised for the improvement, etc., of the Municipality. Now, in the present case we find that Radhaballav Road as a road had become useless to the general public. The greater portion of it had been closed and was of no use, only a small portion still remained from the temple to Ferry Fund Road. It can only be used by the Plaintiff and the votaries of the temple. In these circumstances we cannot say that the Municipal Commissioners were acting beyond the power vested in them by the law in regarding this portion of the road as no longer required for the purposes of the Act and selling it to the Appellant. They did not certainly do something prohibited by law or inconsistent with the Act.

It has again been argued that no Municipality has the power to close or divert a road. If we are right in our view that the Municipality has the power to sell or dispose of a road under the law as it stands it cannot be argued that it has not also the power to close or divert a road “for the purpose of the Act.” In fact it was conceded that it had such power in the Allahabad case on which the Court below has relied. There is an old case of this Court to which reference may be made in this connection. In Jadoo Nath v. Broja Nath (3) it was held that the Municipal Commissioners had no power under the law to stop or divert public ways. That decision was passed before the amending Act of 1894 and therefore is not of much help to us. If it is of any authority at the present day it has to be re-considered. The English law relating to highways is not of much assistance to us in construing a Bengal Act. Under that law the soil beneath the road belongs to the owner of the land or to the owners of the lands on the two sides of the road. There is no enactment there which vests the sub-soil of the highways in a Local Authority. But although under that law the Local Authority has not been expressly empowered to stop or divert a road if in do so by observing certain formalities mentioned in the Highways Act of 1835. In Jadoo Nath v. Brojo Nath a reference was made to the Calcutta Municipal Act. It Was pointed-out there that such power is vested in the Commissioners of the Calcutta Corporation, but as it was not expressly given by the Bengal Municipal Act to the Commissioners of the Mofussil Municipalities, it must be held to have been denied them. The same reasoning has been adopted in this case but it seems to us that though it may be permissible to construe an Act with reference to another Act when they are pari materia, the absence of an express provision in one does not necessarily import intentional omission in the other without clear words to that effect. The Act, as it stands, must be construed within its four corners. There is nothing in the Act which prohibits the Commissioners to stop or divert a road or to dispose of a road. The only limitation to their power given by the Act is that they must exercise such power only for the purposes of the Act. We cannot say that the sale of the road by the Municipality to the Appellant was not in the proper exercise of the power vested in it by law. It was for the purposes of the Act namely, the improvement of the Municipality and what the Commissioners thought advantageous to it.

Now, we are to consider the propriety of the passage suggested by the Court below which must be provided to the Respondent for access to the temple. The passage which is suggested runs through the mill area and the Appellants agreed to it if they could exercise control over it for the protection of the mill. In our opinion it is not a convenient passage even if the directions given in the decree of the lower Appellate Court are accepted.

It appears that in place of the Radhaballav Road a new road has been substituted a little to the north called New Road as shown in the map. It seems to us that there can be no objection to access being given to the Plaintiff from this road. The Plaintiff-Respondent maintains that he has the legal right to claim access from the Ferry Fund Road. We think that he has no such absolute right, but he is entitled to claim a reasonably convenient access to the temple. The Appellant before us has suggested a road opposite the temple running straight on to the new Road which seems to us convenient. This is objected to by the Respondent on the ground that it is so close to the septic tank. We are unable to determine the exact site of the passage and what directions should be given to make it a convenient road for the Plaintiff and those people who have to visit the temple.

We must accordingly send this case back to the lower Appellate Court in order to determine what should be the proper passage to the temple from the New Road and of what width it should be; and also what directions should be given to make it a convenient passage. Whatever directions are given should be to the Municipality which is liable to provide a suitable passage to the Plaintiff.

As a result of the above observations this appeal, is allowed and the decree of the Court below is set aside and the case is sent back to the lower Appellate Court in order that it might take into consideration all the circumstances of this case and determine the alignment of the road as suggested above. Each party will bear his costs so far. Future costs will be in the discretion of the Court below.

No order is necessary in the Rule.

S.C.M