ORDER
1. The respondent No. 3 had set up its factory at 1, Sagore Dutta Ghat Road, a road named after late Sagore Dutta, an eminent resident of Kamarhati, and running east-west, starting from the end of Mackenzi Road in the east and ending on the bank of the river Hooghly in the west. At the western end of the said road on the bank of the river Hooghly, there is a bathing ghat known as ‘Sagore Dutta Ghat’ and the inhabitants of the Kamarhati Municipality use the said Ghat for taking bath and also for performing their religious rites and the said road is a public road owned and controlled by the Kamarhati
Municipality. The petitioners, who claim to be the inhabitants of Kamarhati, allege inter alia, in this civil order that the respondent No. 3 was trying to encroach upon a portion of the said road near its western end and was also attempting to close the said encroached portion of the said road, thereby blocking and/or obstructing the rights of the inhabitants of the locality to go to the river Hooghly for bathing as well as for performing the religious rites through the said road and barring the said Sagore Dutta Ghat, there is no other bathing ghat within a radius of about 1 K.M. in the area. The petitioners’ further case is that they made representations to the Chairman of the Kamarhati Municipality asking him to restrain the respondent No. 3 from obstructing and/or encroaching upon the said Sagore Dutta Ghat Road as nobody had any right to encroach upon or block any public street within the Municipality without the consent of the Municipal authority and the Bengal Municipal Act, 1932 does not authorise or empower any Municipal authority to transfer or exchange any part of any public street to any third party, but without any result. According to the petitioners, the aforesaid attempt on the part of the respondent No. 3 and the inaction on the part of the Kamarhati Municipality in not disposing of the petitioners’ representation ( Annexure ‘A’) amounting to giving tacit consent to the respondent No. 3’s aforesaid misdeeds, are wholly illegal, arbitrary, mala fide and cannot be sustained in law.
2. Mr. Banerjee, learned Advocate, appearing on behalf of the petitioners, in support of his contentions, have referred to Ss. 102 and 102A of the Bengal Municipal Act, 1932 and also to the decision of the Supreme Court in the case of Kumar Pashupati Nath Mullah v. State of West Bengal, , and to the definition of ‘land’ and ‘public street’ as contained in clauses (27) and (44) of S. 3 of the Bengal Municipal Act, 1932, respectively, and has further contended that the resolution adopted by the respondent No. 1 Municipality in the matter was also without jurisdiction.
3. It is also the contention of Mr.
Banerjee that under S. 102 of the Bengal Municipal Act, 1932, power has been given to the Commissioners of a Municipality to purchase, lease, sell, exchange or otherwise transfer any land which is not required for the purposes of the said Act and the said section according to Mr. Bnerjee does not give any right to the Commissioners to transfer or exchange any public street to any third party except to the State Government under S. 102A of the said Act and according to Mr. Banerjee ‘land’ cannot be equated with any ‘public street’ as both have got distinct and separate connotations as per the definitions given in the said Act. Further, according to Mr. Banerjee even assuming that the Commissioners of a Municipality have the fight to sell, lease or exchange any public street to any third party other than the State Government under Bengal Municipal Act, 1932, such transfer should be made with the previous sanction of the State Government under clause (b)(ii) of sub-section (I) of the said S. 102, which is mandatory in nature, and in the present case the sanction or approval of the State Government was obtained after the transfer was effected and after this Hon’ble Court had granted an interim order of maintaining status quo on 29th June, 1987 and thus according to Mr. Banerjee the said transfer is ab initio void.
4. Mr. Ghosh, learned Counsel, appearing on behalf of the respondent Nos. 1 and 2, however, has contended that except the petitioner No. 3 none of the other petitioners is a resident of the locality and also referred to Annexure ‘G’ to the affidavit-in-opposition filed on behalf of the Municipality, which is the resolution adopted by the Municipality regarding transfer of the disputed portion of Sagore Dutta Ghat Road to the Respondent No. 3 and has contended that the said resolution was passed in accordance with law as it was not a case of transfer of any portion of a public street to the respondent No. 3, but really was an exchange of land, and by such exchange, the inhabitants of the locality were not to be prejudiced in any way.
5. Mr. Chakraborty, learned Senior Counsel, appearing on behalf of the res-
pondent No. 3 has contended, inter alia, referring to the affidavit-in-opposition filed on behalf of the respondent No. 3 that there was no attempt on the part of the respondent No. 3 to encroach upon any part of any public street and in fact the disputed portion of the Sagore Dutta Ghat Road was damaged to such extent that it became completely unfit for public use any more and the Municipality had transferred that portion of the said road to the respondent No. 3 in exchange of a new plot of land upon which the respondent No. 3 had already constructed a metalled road leading to the bank of the river Hooghly and also constructed a bathing ghat at the end of the said new road on the bank of the river and entered into an agreement with the respondent No. I Municipality that the respondent No. 3 would maintain the said newly constructed road and keep it in perfect condition and already had provided street lights thereon in other words, they had taken the entire responsibility of maintaining the said newly constructed road and that by the disputed transfer of land, the public of the locality would not be prejudiced in any way, on the contrary, they would be more benefitted inasmuch as instead of going through the damaged and dilapidated portion of the disputed road and also taking bath in the existing dilapidated and highly damaged bathing ghat thereby endangering their own lives, they would now get the facility of using a newly constructed bathing ghat specially constructed for the general public by the respondent No, 3 only at about 100 meters away from the existing old and dilapidated bathing ghat by going freely and easily to the said new ghat through the newly constructed metalled road constructed by the respondent No. 3, which is much wider than the existing damaged and dilapidated disputed road, and provided with electric lights for illumination and which runs at the vicinity of the disputed road and people of the locality also will not have to travel much for going to the bank of the river Hooghly. Mr. Chakraborty also refers the decisions of the Supreme Court in the case of Sachidanand Pandey v. State of West Bengal, , and Calcutta Youth Front v. State of West Bengal, , in support of his contentions.
6. Mr. Chakraborty further contends that the respondent No. 3 who has land both on the northern and southern side of the disputed damaged and/or dilapidated portion of Sagore Dutta Ghat Road, in order to expand its factory, by a letter dated 5th of July, 1979, which is Annexure ‘A’ to the affidavit-in-opposition filed by the respondent No. 3, gave a proposal to the respondent No. 1 Municipality to exchange the disputed dilapidated portion of the Sagore Dutta Ghat Road with a road running along with the south plot of the respondent No. 3 which falls on the southern side of the disputed dilapidated portion of the said road and also offered to prepare such a 20′ feet pucca road on its own land covering an area of 12350 sq. ft., leading to the bank of the river Hooghly and also to construct a pucca bathing ghat at the western end of the proposed new road and further agreed to illuminate the said new road, which would be about 33% wider than the disputed dilapidated portion of the existing road, and which would be only about 100 metres away from the disputed dilapidated portion of the Sagore Dutta Ghat Road and the newly constructed ghat would be at a hand shaking distance from the existing dilapidated ghat which has new become quite unsafe and unfit for public user. The respondent No. 3 also wrote to the then Minister for Urban Development & Local-self Government. Govt. of West Bengal, Writers’ Buildings on 31st May, 1985 seeking for necessary sanction and/or direction in the matter and also approached the Chief Minister, by its letter dated 12th August, 1985 giving the background of such proposal for exchange of road and also sought for the necessary sanction and/ or direction in the matter. Even the Port Trust Authorities were approached for obtaining permission for construction of the new bathing ghat and such facts would be apparent from the annexures to the affidavit-in-opposition filed on behalf of the respondent No. 3.
7. According to Mr. Chakraborty, the entire approach of the respondent No. 3, therefore was for the sole purpose for its industrial expansion which would also expand further employment facilities. The
Commissioner of the respondent No. 3 Municipality at the meeting dated 19th December, 1987 came to the conclusion that in view of the pressing need for industrial expansion and consequent employment facilities, the disputed portion of Sagore Dutta Ghat Road might be handed over to the respondent No. 3 provided, however, such handing over should not adversely affect the civic interests of the local public and the Municipality should be adequately compensated for the ceded portion of the municipal land and further resolved that before taking over possession of the required portion of the said road, the respondent No. 3 should construct a bathing ghat just adjacent to the ceded area and should also construct a new road for approaching the proposed new bathing ghat with drains on both sides as per specifications to be prepared by the P.W. Department of the Municipality and should make proper arrangements for public convenience, particularly for the ladies, in the proposed bathing ghat, should make arrangements for illumination of the said ghat and the approach road from dusk to dawn and should also re-construct a temple of Lord Shiva at the proposed bathing ghat and reinstal the holy idol of Lord Shiva from the existing place to the newly erected shrine by observing the proper rituals as prescribed in the Shastras, so that the worshippers might have the opportunity to perform their daily rituals there. The Commissioners at their previous meetings dated 25th April, 1987 and 19th September, 1987 had also discussed the said proposal of the respondent No, 3 at length and the question of getting Government approval in the matter before taking the above resolution on 19th December, 1987 and asked the State Government for the necessary approval and the State Government by its Memo No.945/C-6/MII-21/87 dated 23rd November, 1987 accorded such permission or sanction to the Municipality but as by that time the petitioners had moved the present writ application and obtained an interim order of maintaining status quo the State Government asked the Municipality to obtain appropriate orders from this Hon’ble Court for removal of the embargo put in the matter by the order of this Hon’ble Court directing
status quo to be maintained in respect of the disputed dilapidated portion of the Sagore Dutta Ghat Road and the disputed ghat before materialising the transfer of the land to the respondent No. 3 by exchange. The said Govt. Memorandum is Annexure ‘G’ to the affidavit-in-opposition filed by the respondent No. 3.
8. Section 102 of the Bengal Municipal Act, 1932 deals with the powers of the Commissioners of a Municipality in the matter of purchase, lease and sell lands in the following manner:–
“(1) The Commissioners at a meeting may-
(a) purchase, take on lease or otherwise acquire any land for the purposes of this Act.
(b) sell, lease, exchange or otherwise transfer-
(i) any land which they have acquired for the purposes of recoupment, or
(ii) except in the case referred to subsection (2) with the previous sanction of the State Government, any land which is not required for the purpose of this Act;
(2) Previous sanction of the State Government shall not be necessary for granting a lease for a period not exceeding five years, whether or not such lease contains a stipulation for renewal at the option of the lessee;
Provided that where such-lease contains such stipulation, there shall be a further stipulation that the renewal shall be subject to revision of the terms and conditions of the lease by the Commissioners at a meeting.”
9. Section 102A of the said Act which is quoted below states about the powers of the Commissioners of a Municipality regarding transfer of public streets to the State Government :–
“102A. Power to transfer public streets to the State Government.– The Commissioners at a meeting may transfer to the State Government any public street or part of a public street which is vested in and belongs to the Commissioners on such terms and condi-
tions as may be agreed upon between the State Government and the Commissioners.”
10. From the above sections it clearly appears that the Commissioners of a Municipality can sell, lease or otherwise transfer, only with the previous sanction of the State Government, any land of the Municipality to a third party, which is not required for the purposes of the Bengal Municipal Act, 1932 but so far as the transfer of any public street is concerned, the Commissioners of a Municipality can transfer the same only to the State Government and not to any third party.
11. At the same time, S.221(c) of the Bengal Municipal Act, 1932 gives power to the Commissioners of a Municipality to close temporarily or permanently any public street, square or garden. The said S. 221 is reproduced below:–
“221. Power to Commissioners to make, improve and close public streets, squares and gardens.– The Commissioners in pursuance of a decision arrived at a meeting may –
(a) lay out and make new streets, squares, and gardens;
(b) construct new bridges, causeways, culverts and sub-ways;
(c) turn, divert, or temporarily or permanently close any public street, square or garden;
(d) widen, open, enlarge, or otherwise improve any public street, square or garden;
(e) provide at their discretion building sites of such dimensions as they think fit to abut on, adjoin or obtain access from any public street made, widened, lengthened, extended, enlarged or improved by the Commissioners under clauses (a), (b), (c) or (d) or by the State Government;
(f) subject to the provisions of any rule made by the State Government prescribing the conditions on which the land may be acquired for the Commissioners, obtain through the State Government the acquisition of any land, along with the buildings thereon, which they consider necessary for the
purposes of any scheme or work undertaken or projected in exercise of the powers conferred by the preceding clauses including purposes of recoupment of the cost of any such scheme or work; and
(g) subject to the provisions of any rule made by the State Government, prescribing the conditions on which land vested in the Commissioners may be transferred, lease, sell or otherwise dispose of any land acquired for the Commissioners under clause (f) or any buildings erected thereon or any land used by the Commissioners for a public street, and in doing so impose any condition as to the description of any building to be erected thereon, as to the period within which such building shall be completed, as to the removal of any building existing thereon and as to any other matter that they deem fit.”
12. Again, S. 222 or the Bengal Municipal Act, 1932, which is quoted below, gives right to the Commissioners of a Municipality to dispose of by sale or lease the site of so much of a parmanently closed public street, square or garden as is no longer required :–
“222. Power to Commissioners to dispose of so much of a permanently closed street, square or garden as is not required.–(1) When any public street, or part thereof or any public square or garden is permanently closed u/S.221, the Commissioners, in pursuance of a decision arrived at a meeting, may sell or lease the site of so much of the roadway and foot-path as is no longer required, or the site of the square or garden, as the case may be, making due compensation to, or providing means of access for, any person who may suffer damage by such closing.
(2) In determining such compensation allowance shall be made for any benefit accruing to the same premises or any adjacent premises belonging to the same owner from the construction or improvement of any other public street, square or garden at or about the same time that the public street, square or garden on account of which the compensation is paid is closed.”
13. A Municipality is the owner of public
streets but such ownership cannot be equated to the ownership of a private individual in respect of his own property. The Municipality is a creature of Statute and it has to discharge certain statutory functions. It cannot deal with its properties as it thinks best in any manner destructive of the purposes of the Bengal Municipal Act, 1932. In a public street, the public have a right of way, a right of user as pedestrian or otherwise which they are entitled to exercise without obstruction. If a public thoroughfare is blocked or closed, for which a person living in the locality and using the road or street frequently cannot pass through the same because of such closure, blockade or obstruction, he can certainly move the Constitutional Writ jurisdiction of the High Court for directing the concerned authorities to perform their statutory duties by removing such closure or blockade or obstruction, as the case may be, on the public road or street. At the same time if it appears that the Municipal authority has closed a portion of a public road or street, may be permanently, considering the same as no longer required for the purposes of the Bengal Municipal Act 1932 and transfers such closed portion to a third party may for the transferee’s commercial purpose, after securing alternative and adequate public pathway and without affecting the public interest in any way, such act of the Municipality cannot be termed as illegal being opposed to public policy.
14. As referred to above, S.221 of the Bengal Municipal Act, 1932 gives right to the Commissioners of a Municipality to temporarily or permanently close any public street and u/S.222 of the said Act the Commissioners have the power to sell or lease the site of such closed street or roadway. Now, the word site has neither been defined in the Bengal Municipal Act, 1932 nor in the General Clauses Act, and in the absence of such definition, the dictionary definitions may be looked into. As per the Shorter Oxford English Dictionary, Vol. Two (3rd Ed.), at page 1903, the word “site” means inter alia a plot, or number of plots, of land intended or suitable for building. According to the Compact 1971 Edition of the Oxford
English Dictionary Vol. II at page 113 the word ‘site’ has also the same meaning inter alia i.e., also, in mod. use, a plot, or number of plots, of land intended or suitable for building purposes.
15. The word ‘land’ has been given only an inclusive definition in the Bengal Municipal Act, 1932, as would appear from clause (27) of S. 3 of the said Act, which is quoted below:–
“(27) ‘land’ includes benefits arising out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.”
16. According to the Shorter Oxford English Dictionary, Vol. One (3rd Ed.) at page 1103, ‘land’ means inter alia the solid portion of the earth’s surface, ground or soil, specially as having a particular use for particular properties; a part of the earth’s surface, ground or territory as public or private property. Accordingly, when a portion of a public street is closed by the Municipality such closed portion loses its original identity of public street and it becomes a ‘site’ or ‘land’ which can be transferred to a third party by the Municipality as per the provisions of S. 102 and S.222 of the Bengal Municipal Act, 1932. Moreover, this also appears to be the intention of the legislature inasmuch as, had it been the intention of the legislature to consider the closed portion of a public street or a road as a public street or road still after its such closure, it would have described as such in the said S. 222 instead of describing as the site of such closed public street or road which means that the legislature in its wisdom also thought it fit not to consider the closed portion of a public road or street any longer as public road or street after its such closure otherwise the word ‘site’ would not have been used in such section.
17. Reference may also be made to S. 353 of the Calcutta Municipal Corporation Act, 1980, which gives right to the Municipal Commissioner to permanently close the whole or any part of a public street and to dispose of the site of such street or the portion thereof as land. The said section is quoted below:–
“S. 353. Permanent closure of public street and disposal of land. (1) The Municipal Commissioner may, with the previous sanction of the Corporation permanently close the whole or any part of a public street;
Provided that no public street shall be permanently closed except in accordance with a resolution carried at a meeting of the Corporation and approved by the State
Government.
(2) Whenever any public street or a part thereof is permanently closed under sub-sec. (1), the site of such street or of the portion thereof may be disposed of as land vesting in the Corporation.”
18. From the above section it is clear that the site of the closed portion of a public street after such closure loses its original identity and becomes land and so also under the Bengal Municipal Act, 1932 whenever a portion of any public street is closed permanently, it loses its original identity and such portion for the purpose of transfer u/ S. 222 of the said Act becomes site impliedly meaning thereby land.
19. Secondly, transfer of land or site by the Municipality is subject to the prior approval of the State Government as envisaged in cl. (b)(ii) of sub-sec. (1) of S. 102 of the Bengal Municipal Act, 1932 and it is also controlled by the provisions of S. 103 of the said Act as has been held by this Court in the case of Jitendra Nath Mukherjee v. Baduria Municipality, and it is well settled that the Statutory authority with powers and functions circumscribed by the Statute, is to act according to such powers not otherwise. The limits of the powers of a Commissioner of a Municipality under the aforesaid S. 102 and the manner in which it is to be done, has been clarified by S.K. Dutta, J., in the decision of Commr. for Basirhat Municipality v. Anukul Chandra Das, as follows:–
“Section 102 of the Act gives power to the Commissioners also to deal with or dispose of any land which is not necessary for the purposes of the Act. The Commissioners by
this provision have been given power to deal with or dispose of the land in such a manner provided therein which they may not otherwise be entitled to do being a body corporate formed under a Statutory with powers and functions circumscribed by the Statute.”
20. Although it is the contention of Mr. Banerjee, learned Counsel, appearing on behalf of the petitioners that the Government’s approval or sanction as envisaged in cl. (b)(ii) of sub-sec. (1) of S. 102 of the Bengal Municipal Act, 1932 was accorded in the present case after the petitioners obtained the present Civil Order and not prior to the disputed transfer, as per the mandatory provisions of the said cl. (b)(ii), nothing is produced before this Court to show that the deed of exchange or transfer in respect of the disputed portion of Sagar Dutta Ghat Road or the disputed bathing ghat was executed by the respondent Nos. 1 and 2 in favour of the respondent No. 3 prior to the sanction or permission obtained from the State Government in the matter and such being the position, it cannot be said that the respondent Nos. 1 and 2 in the present case had acted in contravention of the statutory provisions of law.
21. It has already been observed hereinbefore that a Municipality is the owner of public street but such ownership cannot be equated to the ownership of a private individual in respect of its own property; the Municipality is the creature of a statute and it has to discharge certain statutory functions and it cannot deal with its properties as it thinks best in any manner destructive of the purposes of the Bengal Municipal Act, 1932. S. 222 of the said Act also gives a restrictive right to the Commissioners of a Municipality to dispose of by way of sale or lease the site of a closed portion of a public street as is no longer required for the purpose of the Act only after making due compensation to or providing means of access for any person who may suffer damage by such closing. The decision to transfer by way of exchange the disputed portion of the Sagore Dutta Ghat Road by the respondent Nos. 1 and 2, as would appear, from the entire course of
events as may be gathered from the writ petition and the affidavits, was taken by the respondent Nos. 1 and 2 after long negotiation and considering relevant factors. Such decision of the Municipality was taken only after the respondent No. 3 had agreed to make alternative suitable arrangement for making access to the bank of the River Hooghly by the people of the locality by constructing a new road and a bathing ghat and it has already made such constructions which are not far off from the disputed portion and are in fact better, and has given an undertaking to maintain the said properties properly at its own costs, the ownership of which, however, would remain with the Municipality.
22. Public has a right of way through a public road or street which undoubtedly cannot be taken away so easily without making adequate alternative arrangements for providing means of access for the public, who may suffer for taking away such right by the State or a Public authority. In the present case, as the disputed portion of the Sagore Dutta Ghat Road and the bathing ghat had become so dilapidated according to the municipality that the same had become unfit for public user any more. The respondent No. 3 has obtained the said dilapidated portion of the disputed road from the Municipality by way of exchange only after constructing a new and much wider metalled road with proper lighting arrangements not far off from the disputed road and has also constructed a new bathing ghat at the end of the said newly constructed road, on the bank of the river Hooghly for public user and has also entered into an arrangement with the Municipality and in fact has given an undertaking to maintain the same at its own costs. Such facts would amply prove that the Municipality has closed down a portion of a public road after making adequate alternative arrangements or providing means of access to the general public for going to the River Hooghly and to take bath therein and the question of depriving the public of using a public road or street and also a public bathing ghat by the Municipality without providing adequate alternative arrangements or means
of access for the public, in the present case, therefore, does not arise at all.
23. Again, upon a consideration of the entire facts and circumstances and the averments made in the writ application and the affidavits, it cannot be said that impugned decision taken by the Municipality was not for any public interest. The records would show that the Municipality accepted the proposal of the respondent No. 3 company for exchange or transfer of the disputed land as it thought it rightly, that by amalgamating the two units of the respondent No. 3 by utilizing the exchanged or transferred land the said respondent would expend in future which would also open the possibility of more future employment which fact can also not be denied or ignored. Moreover, as the disputed dilapidated portion of the existing road had become totally unfit for the public use and had become the happy hunting ground of the local rowdies, creating law and order problem in the locality, as would appear from the facts of the case, the transfer of the disputed portion of the existing road and the bathing ghat to the respondent No. 3 by the Municipality in lieu of the new road and the new bathing ghat and the temple already constructed by the respondent No. 3 and assured to be maintained by the said respondent, would also relieve the public in general of all such hazards and such act of the Municipality cannot be termed as opposed to public policy or violation of any statutory provisions of law nor it can be said to have been done by the Municipality in excess of its statutory powers and/or obligations.
24. Since the decisions cited at the Bar are distinguishable on facts I need not make any discussion of the same in details.
25. The writ application is thus dismissed without any order as to costs. All interim orders stand vacated.
26. The oral prayer made on behalf of the petitioners to stay the operation of this order is refused.
27. Application dismissed.