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State Of Rajasthan v. Municipal Board, Allahabad .
Factual and Procedural Background
This appeal by special leave challenges the judgment and decree of the High Court of Allahabad dated November 16, 1976 in First Appeal No. 208 of 1957.
The State of Rajasthan (appellant) filed a suit for declaration and permanent injunction against the Municipal Board, Allahabad (respondent). The suit was premised on the assertion that His Highness the Maharaja of Jaipur was the Muhfidar of 35 acres of land (the identity of which was disclosed in the plaint) and had been realising tehbazari or ground rent from vendors, itinerants, shopkeepers, and others carrying on business within those 35 acres. The State, claiming as successor to the Maharaja, sought a declaration of its right and a permanent injunction restraining the Municipal Board from interfering with the collection of such dues.
The trial court decreed the suit in favor of the appellant. On first appeal, the High Court reversed the decision insofar as it pertained to the appellant’s claim to collect tehbazari and similar dues. The present appeal arose from that reversal. Both courts below found as facts that (a) the Maharaja of Jaipur was the Muhfidar of the 35 acres and its location and identity stood established, and (b) two prominent roads—Zahural Hasan Road and Chintamani Ghosh Road—lie within the disputed 35 acres.
Legal Issues Presented
- Whether, in light of Sections 116-G, 209, 210, and 220 of the U.P. Municipalities Act, the Municipal Board has the authority to regulate the user of public streets and realize tehbazari from vendors and others using the patri of Zahural Hasan Road and Chintamani Ghosh Road, notwithstanding rights claimed by the appellant through Muhfidari.
- Whether the court should adjudicate the question of ownership arising from the “vesting” of public streets, or confine itself to the legal consequences of statutory vesting for management and control under the U.P. Municipalities Act.
Arguments of the Parties
Appellant's Arguments
- Urged the court to decide the question of ownership of the two streets and to interpret the meaning of “vesting” in order to determine who is the owner of the streets termed as “public streets” within the meaning of Section 2(19) of the U.P. Municipalities Act.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court noted the concurrent factual findings that the Maharaja of Jaipur was the Muhfidar of the 35 acres and that Zahural Hasan Road and Chintamani Ghosh Road lie within that area. It emphasized the statutory framework under the U.P. Municipalities Act:
- Section 2(19) defines “public street.”
- Section 116-G provides that all public streets and associated fixtures vest in and belong to the Municipal Board, and are under its direction, management, and control.
- In this case, the two roads were found to be “public streets” (referred to as within the meaning of Section 219 in the opinion) and therefore vest in the Municipal Board under Section 116-G.
- Under Sections 209 and 210, the Board has powers relating to permissions for projections and to levy penalties for unauthorized constructions or projections over streets and drains.
- Section 220 prohibits, notwithstanding any previously acquired or enjoyed right or privilege, any itinerant vendor or other person from using or occupying any public street or place for sale or other calling without permission of the Board given in accordance with applicable bye-laws. The court reproduced the text of Section 220.
The court declined the appellant’s invitation to decide the underlying question of ownership or to interpret “vesting” for that purpose. Instead, it confined itself to the consequences of statutory vesting: namely, that management and control of public streets are vested in the Municipal Board. By virtue of Section 220’s non-obstante clause, the municipality’s right to regulate the user of public streets by vendors and others is superimposed over any prior rights, and it is the municipality in which the right to realize tehbazari vests.
Applying these provisions, the court affirmed the High Court’s conclusion that the Municipal Board is entitled to regulate and charge tehbazari from hawkers, shopkeepers, and itinerant dealers squatting on the patri of the two roads within the disputed 35 acres.
Holding and Implications
DISMISSED. The appeal was dismissed without any order as to costs. The court upheld the High Court’s dismissal of the appellant’s claim to a declaration and injunction restraining the Municipal Board from realizing tehbazari or ground rent from persons using the patri of Zahural Hasan Road and Chintamani Ghosh Road.
Implications: The immediate effect is that the Municipal Board, Allahabad retains the authority, under the U.P. Municipalities Act, to regulate the use of the identified public streets and to collect tehbazari from vendors and others using those areas, notwithstanding the appellant’s claim through Muhfidari. The court expressly declined to determine ownership of the streets, addressing only the legal consequences of statutory vesting. The decision resolves the dispute between the parties on statutory grounds and does not set out any broader precedent beyond the application of the cited statutory provisions.
Order
1. This appeal by special leave is against the judgment and decree of the High Court of Allahabad dated November 16, 1976 passed in First Appeal No. 208 of 1957.
2. The appellant herein, the State of Rajasthan, filed a suit for declaration and permanent injunction against the respondent-Municipal Board, Allahabad on the premises that His Highness the Maharaja of Jaipur was the Muhfidar of 35 acres of land of the identity disclosed in the plaint and in the assertion of that right had all along been realising tehbazari or ground rent from the vendors, itinerants, shopkeepers etc. who were selling articles on shops in the bazar or elsewhere within those 35 acres; but since the Municipal Board had raised a counter claim thereon a declaration was necessary in favour of the State of Rajasthan being the successor of His Highness the Maharaja of Jaipur, and a permanent injunction restraining the Municipal Board, Allahabad from interfering with such right of the appellant to realise dues or ground rent, as the case may be. The appellant was successful in getting the suit decreed before the trial court, but the High Court of Allahabad in first appeal reversed that decision insofar as the claim to the collection of tehbazari etc. was concerned, which has led to the instant appeal.
3. We have heard learned counsel. Both courts below have found that the Maharaja of Jaipur was the Muhfidar of 35 acres of land, location and identity of which stands established as per findings of the trial court. It has also been found as a fact that two prominent roads by the name of Zahural Hasan Road and Chintamani Ghosh Road lie in the said disputed area of 35 acres. Now Section 2(19) of the U.P Municipalities Act defines the expression “public street” and Section 116-G of the Act declares that all public streets and the pavements, stones and the other materials thereon as also all trees, erections, materials, implements and things existing on or appearing on such street shall vest in and belong to the Board and shall, with all other property which may become vested in the Court be under its direction, management and control. The aforesaid two roads having been factually found to be “public streets” within the meaning of Section 219 and thus having vested statutorily in the Board under Section 116-G, the Board gets the power under Section 209 of the Act to sanction user in terms thereof and charge thereon tehbazari under Section 220.
4. Learned counsel for the appellant would have us decide the question of ownership and to interpret the words ‘vesting’ in order to decide who is the owner of those two streets which have been termed as “public streets” by the High Court within the meaning of Section 2(19) of the Act. After hearing him, we are not persuaded to enter into this controversy and would rather confine to the limited scope of the controversy as to what are the consequences of statutory vesting of a street in the Municipal Board. To say the least, the management and control of such public street gets vested in the Municipal Board. In the exercise of such management and control, it has powers vested in it under Sections 209, 210 and 220 to permit projection over streets and drains, levy penalty for construction and projection over streets and drains without permission and further permit use of public street by vendors and others. Section 220 would be useful to be set out here:
“220. Notwithstanding any right or privilege (previously) acquired, accrued, or enjoyed, in a municipality for which bye-laws under sub-head (b) of heading E of Section 226 have been made and are in force, no itinerant vendor, or any other person, shall be entitled to use or occupy any public street or place for the sale of articles or for the exercise of any calling or for the setting up of any booth or stall without the permission of the Board given in accordance with such bye-laws.”
5. The non-obstante clause superimposes the right of the municipality to regulate the user of public street by vendors and other persons and thus it is in the municipality does the right to realise tehbazari vest. The High Court thus was right in our view in dismissing the suit of the plaintiff-appellant to the extent it sought declaration and permanent injunction restraining the Municipal Board-respondent from interfering with its right with regard to realisation of tehbazari or ground rent from the hawkers, shopkeepers and itinerants, dealers squatting on the patri of two roads within the sphere of 35 acres of the land put to dispute. For these reasons, we dismiss the appeal without any order as to costs.
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