1. These two civil rules under Article 226 of the Constitution raisecommon questions of law and they relate to the land of the same C. S. plot So they were heard together and the came judgment and order will cover both of them.
2. The brief narration of Civil Rule No. 292/78 is that land of dag No. 707 (old 760) of Nowgong town measuring 2B-4K. 4L. belonged to Nowgong Local Board of which the Board leased out to the petitioner 12 lechas of land at a fixed rent of Rs. 90/- per month in 1955 and a patta wag executed in that behalf. The petitioner constructed a permanent house in which he resided and carried on business in textile. The house which has been serving the purposes of both residence and textile business of the petitioner falls within Nowgong Municipal Board and the house was constructed with the permission of the Municipal authority. The Municipality also entered the holding of the petitioner in its assessment records. In 1929 the Nowgong Local Board leased out 15 lechas of land to late Abdul Kadar, a pleader of Nowgong with effect from 27-2-1929 under dag No. 707. This land is adjacent to the land which was leased out to the petitioner as aforesaid, Abdul, Kader constructed houses on his land and in 1959 the petitioner took lease of 6 lechas of land of Abdul Kader together with a bouse on it at Rs. 88/-per month. The petitioner annexed this land to the land previously taken lease of from the Nowgong Local Board. Subsequently the land measuring 6 lechas taken from Abdul Kader was purchased by the petitioner. Thus the petitioner came to possess 18 lechas of land with buildings thereon.
3. On 24-4-1962 respondent No. 2, Deputy Commissioner, Nowgong served a notice under Rule 18 (21/18 (3) of the Assam Land & Revenue Regulation (for short, the Regulation) by starting misc. case No. 299 ordering the petitioner to vacate 18 lechas of land under dag No. 760 (707) but later the proceeding was dropped. On 28-9-1965 one officer on behalf of the Deputy Commissioner issued another notice to the petitioner under Rule 18 (2) of the Regulation in misc. case No. 264 of 1965-66 asking to vacate 18 lechag of land being a part of dag No. 760 of Nowgong Town Kisam. This proceeding too was dropped. Then the petitioner received another notice Issued by some officer on behalf of the Deputy Commissioner on 23-7-1974 under Rule 18 (2) of the Regulation directing him to vacate 6-1/2 lechas of land under dag no. 707 of Nowgong Town Kisam in misc. case No. 27/74-75. On the petitioner raising objection against the notice of eviction, the same was stayed. Subsequently the District Veterinary Officer attempted to take forcible possession of the 6-1/2 lechas of land together with another land measuring 1/2 lecha belonging to some other person on 19-1-1973. The petitioner and the said other person protested and in a proceeding under Section 145 Cr. p. C. (MR Case No. 36 of 1973), the Chief Judicial Magistrate, Nowgong declared possession of the land in favour of the petitioner and the said other person. The order of the learned Magistrate was upheld in a revision by the Sessions Judge. Thereafter the in-charge Deputy Commissioner, Nowgong issued a notice being No. NRS. 66/66/266 dt. 28-8-1978 to the petitioner ordering him to vacate a plot of land measuring 6.5 lechas covered under dag No. 707 (Tha) of Nowgong Town Kisam, Mouza Town which was allotted to the Veterinary Department. It was also intimated to the petitioner that the Government had the de-sire to settle with the petitioner 11.5 lechas of land under dag No. 707 on payment of premium @ Rs. 200/- per cent of the market value fixed at Rs. 50,000/- per bigha, vide Government letter No. RSS 94/72/182 dated 20-7-78. It was also informed to him that failing compliance with the order of vacation, he will be forcibly evicted and that settlement of land said above with the petitioner will also be affected.
4. The petitioner challenges the aforesaid order of eviction on the basis of his fundamental and legal rights attached to the property under notice on the grounds tbat the Nowgong Local Board as owner of the land settled a part of the land under dag No. 707 to the petitioner and another part appertaining to the same dag to late Abdul Kader from whom the petitioner subsequently derived right to the property that ultimately the land vested in Howgong Mahkuma Farishad as successor-in-interest, that the lands are still property Of the Mahkuma Parishad under which the petitioner holds his lease-hold right and that the Mahkuma Parishad was not divested of the title to the land and also that it never vested in the Government. The Government, according to the petitioner, being not owner of the land on 28-8-1978 or at any time before or after it could not issue any notice under Rule 18 of the Regulation. Therefore the authority of the Government to issue the impugned notice has been challenge ed as illegal and beyond jurisdiction,
5. The short facts of Civil Rule No. 267/80 are as follows: The Nowgong Local Board leased out 15 lechas of land to late Abdul Kader, a pleader of Nowgong with effect from 27-2-1929 under dag No 707. Abdul Kader constructed some houses on a part of the land measuring 9 lechas out of those 15 lechag. On the death of Abdul Kader his legal heirs effected a family settlement regarding 15 lechas of land inherited by them whereby the houses said above fell to the share of legal heir Abu Jafar Mahmed Ataul Haque as described under Schedule 5 of the deed of family settlement (Annex. 'B'). Later Abu Jafar sold out the said house standing on 9 lechas of land under dag No. 707 (old dag 607) of Nowgong Town to the petitioner on 25-6-1976 by a registered deed of sale at a price of Rs. 3,000/- (Annex. 'C'), Before the sale, the house was rented out to Pushrai Agarwalla who sublet the same house to Shri Mangilal Agarwalla, respondent No. 5 who after the aforesaid sale of the house to the petitioner continued to occupy the house as a monthly tenant under the petitioner. On knowing that the Government was about to settle the land with respondent No. 5, the petitioner prayed- to the Government for settling the land with him if the Govt. had any right to settle the land,
6. It is stated that Nowgong Local Board was original owner of land and that after the Assam Panchayat Act 1959 came into force as Nowgong Mah-kuma Parishad was constituted under this Act, all assets previously belonging to the Local Board including the land dag No. 707 of Nowgong Town Kisam were made over by the Deputy Commissioner, Nowgong to the Mahkuma Parishad on the order of the State Government and that since then all the as-sets of erstwhile Local Board vested in the Nowgong Mahkuma Parishad. It is stated by the petitioner that he was heard by the Secretary, Revenue. Govt. of Assam in connection with proposed settlement of land under dag No. 707 and that the petitioner raised objection to such settlement alleging that the Government had no authority to settle the land inasmuch as he purchased the land from the legal heir of original lease holder Maulabi Abdul Kader. Subsequently he came to know from respondent No. 5 that the land purchased by the petitioner was settled by the Government in favour of respondent No. 5. Therefore the petitioner challenges the order of settlement issued by Government in favour of respondent No. 5 as illegal and without jurisdiction. 7. The principal contention raised in these two Rules is that the Government being not owner of the land has no authority to issue any notice of eviction or to make a fresh settlement of the land to anybody as against the persons who derived their title in the land from the Local Board later succeeded by Mahkuma Parishad which happens to be the superior land holder with regard to the lands. Learned counsel for the petitioners Mr. Choudhury argued that the lands vested in the Local Board constituted under the Assam Local Self Government Act 1953 (for short Act of 1953), He pointed out that every Local Board so constituted was a body corporate and a juristic person and that as such it was not a Department of the Government and that it could own and possess landed property vested in it on its own right (Sec. 19 of the Act of 1953). He further referred to Sec, 36 of the Act of 1953 which reads :--
'36 From and, after the establishment of a Local Board all roads, bridges, channels, buildings, tanks and other property movable or immovable held by or under the control of the Local Board existing when this Act comes into force shall, for the purposes of this Act put under the control and administration of the Board if this is already vested in any Panchayat under the Assam Rural Panchayat Act 1948.'
Admittedly the lands under dag No. 707 measuring 2B-4K-4L of town Nowgong Kisam of Town Mouza having been originally Sarkari land was allotted to the Local Board. In 1959 the Assam Panchayat Act came into force and the Nowgong Mahkuma Parishad was duly constituted under the Act whereupon all the assets of the Local Board including the land of dag No. 707 of the Nowgong Town Kisam were made over to the Mahkuma Parishad by the Deputy Commissioner. Nowgong on the order of the Government and the land of dag No. 707 along with other properties and assets vested in the Nowgong Mahkuma Parishad. As the Assam Panchayati Raj Act of 1972 came into being, it was provided under Section 158 of the Act that during the period between the commencement of the Panchayati Raj Act and the constitution of the Mahkuma Parishad under the Act, the Deputy Commissioner shall hold the assets of the Mahkuma Parishad, in trust for the Mahkuma Parishad to be constituted under the Panchayati Rai Act and that the Deputy Commissioner will hand over the assets and properties thus held in trust by him to the Mahkuma Parishad, in pursuance of which the Deputy Commissioner did the same. It is argued that since the vesting of the properties including the disputed property in the Mahkuma Parishad, no law has been enacted whereby Mahkuma Parishad has been divested of title to the properties with the result that these properties vested in the Government. Learned counsel for the petitioners cited Shri Ngurohiezao Angami v. Sub-Divisional Officer, Dimapur, Nagaland, AIR 1971 Assam & Naga 74 wherein it is laid down that in view of Articles 21 and 31 and the Principle of Rule of Law, Government cannot evict persons in possession of Government land either as tenants or as trespasser by using force except by authority of law. Learned counsel for the petitioners referred to Sections 163 and 165 of the Assam Panchayat Act 1959 as amended upto 1967. Section 163 of this Act reads :--
'163 (1) The State Government by notification may declare that with effect from such date and in respect of such area or areas as may be specified in the notification, the Assam Local Self Government Act, 1953 shall be deemed to be repealed. The Local Boards existing at the time of the notification within the area or areas so specified thereupon ceases to exist provided that the said repeal shall not affect the validity or invalidity in anything done under the said enactment.....'
Section 165 of the Act reads :
'155 (1). From the date the Assam Local Self Government Act 1953 repealed under Sub-section (1) of Section 163 of this Act all the assets including the Local Board Fund belonging to any local Board shall vest in the Deputy Commissioner or the Sub-Divisional Officer as the case may be who shall hold the assets in trust and perform and exercise all such duties and powers as assigned to the Board under the Act repealed until these are made over in accordance with the order of the State Government or such officer or officers as the State may appoint in this behalf, to the Mahkuma Parishad or to the Anchalik pan-chayat or to the ad hoc Mahkuma Parishad Committee or to the ad-hoc Anchalik Panchayat Committee or to the Gaon Panchayat established under this Act in the area over which the Local Board, to whom the assets belonged had jurisdiction.'
Learned counsel Shri Choudhury argued that by dint of Section 165 of the Assam Panchayat Act, 1959, the Deputy Commissioner on repeal of the Assam Local Self Government Act, 1953 held the assets of the Local Board as trustee and that this did never mean vesting of the properties of the erstwhile Local Board in the State Government. The function of Deputy commissioner under Section 165 is a distinct statutory function apart from his normal work as a Deputy Commissioner or as a Sub-divisional Officer under the Government. He also argued that the right acquired bv the petitioners from the erstwhile Local Board with regard to the disputed lands was not affected by the abolition of the Local Board under the repealed provisions under Section 166 of the Assam Panchayat Act 1959. Mr. Choudhury also referred to Section 158 and Proviso (a) to Section 158 of the Assam Panchayati Rai Act 1972 which provides for repeal and savings. The proviso (a) reads as follows :--
'(a) The said repeal shall not affect the validity or invalidity of anything already done under this enactment.....'
Again proviso (e) of Section 158 of Assam Panchayati Raj Act 1972 is as follows :--
'(e) All assets and liabilities including the funds which are vested in a Mahkuma Parishad constituted under the provisions of Assam Panchayat Act 1959 (Assam Act XXIV of 1959) shall vest in the Dy. Commissioner or sub-divisional officer as the case may be and shall be held by him in trust until it can be made over to the Mahkuma Parishad constituted for the same area under the provision of this Act.'
8. The submission of Mr. Choudhury is that when the land once vested in the institution of the Panchayati Raj, the Government has no authority to take any action of either settlement of or eviction from the land in absence of a law or rule authorising such action on the part of the Government. On the other hand the contentions of the learned Government Advocate are that the land of Civil Rule No. 292/78 was allotted to the Local Board by the Government for the purpose of utilisation of it by the Veterinary Department and that as soon as such requirement no longer existed there the land automatically reverted to the Government being the superior owner of the land. Annex. III to the affidavit in opposition is the Chita in respect of the land under dag No. 707 which shows the Government as owner of the land. This relates to the year 1978. In the remarks column of the Chita it is stated that the Local Board Veterinary dispensary has to be taken as out of possession. He further pointed out that the Deputy Commissioner or the Sub-divisional Officer as the case may be held the lands of Local Boards as per provisions of the law in that behalf in trust for making over these lands to the successor institution of local self Government only to the extent of those lands which fell outside the domain of municipalities. Admittedly the lands in these cases are within the jurisdiction of local municipality. The land was let out by the Local Board to late Abdul Kader for one year only, No doubt the petitioners are paying Municipal Taxes, but payment of Municipal Taxes or revenue does not by itself confer any right or title on the payer with regard to the land. Annex. 'G' shows that the Government proposes to settle 11.5 lechas of land under dag No. 707 with the petitioner in consideration of which he was to vacate the land measuring 6.5 Lechas under dag No. 707.
9. As regards the land of Civil Rule 267/80 Annex. 'A' shows that the land under dag no. 707 was leased out to Abdul Kader for a year at a monthly rental of Rs. 8/- up to 31-1-1930. It was a condition of the lease that the lessee was to execute a Kabulyat but there is no proof that such a Kabulyat was ever executed. Hence the lease did not get perfected. Next it is found that the impugned settlement order was passed on behalf of Government after hearing the petitioner. It is also to be noted that it having been a lease to Abdul Kader for a year only, it cannot be comprehended how the legal heir of Abdul Kader could transfer the land by way of sale to the petitioner.
10. The position is that the lands of the two cases fall within the Municipal area and that the Municipality has control over these lands. When a land is vested in a municipal council, the right of the Government to the land does not cease to exist. Under the Municipal Act, the municipality has only the powers of direction, management and control of the land within its domain. The term 'vest' is used in varying senses. It mav be vesting of title or vesting of possession or vesting for a limited purpose (The Fruit and Vegetable Merchants' Union v. Delhi Improvement Trust. AIR 1957 SC 344). Learned Government Advocate cited State of U. P. v. Ata Mahmed, AIR 1980 SC 1785, in which the decision of a Division Bench of the Madras High Court in S. Sundaram Ayyar v. Municipal Council of Madura in Council, (1902) ILR 25 Mad 635 was quoted with approval which runs 'when a street is vested in a Municipal Council such vesting does not transfer to the Municipal authority rights of the owner in the site or the soil over which the street exists. It does not own the soil from the centre of the earth usque ad coelum but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. In the Supreme Court case (Supra) it was further held that the view taken by the Division Bench of Madras High Court was that though the street vested in the Municipal Council it has not transferred to the municipality the rights of the owner in the site or soil over which the street exists and that if the Municipality put the street to any other user than that for which it was intended, the State as its owner, was entitled to intervene and maintain an action and get any person in illegal occupation evicted,
10A. In Civil Rule 428 of 1972 of this Court wherein judgment was passed on 4-12-1974 a Division Bench consisting of the Hon'ble the Chief Justice Mr. M. C. Pathak and Hon'ble Mr. Justice D, Pathak (as he then was) held 'It is quite clear that the Assam Panchayati Raj Act, 1972 does not expend to any area which has been or hereafter may be included in a town committee. Hence any area which has been or may be in-cluded in a town committee, a Mahkuma Parishad has no jurisdiction to settle any hut or bazar therein'.
Section 1 of the Assam Panchayati Raj Act, 1972 reads as follows :--
'1. (i) This Act may be called the Panchayati Raj Act, 1972.
(2) It extends to all the villages and the tea garden areas in the whole of the State of Assam excepting the autonomous districts under the VIth Schedule of the Constitution of India and any area which has been or hereafter may be included in a municipality or a town committee or a cantonment as constituted under the Assam Municipal Act, 1956 (Assam Act XV of 1957) and Cantonment Act 1924 (Act II of 1924) respectively or by any other Act.'
The Assam Panchayati Raj Act, 1973 came into force with effect from 7-5-73. Therefore the legal position with regard to the land within the municipal area is that the Government retains its ownership though the municipality may possess it for specified purposes and that if the land be not utilized for the purpose for which it was allotted, it reverts to the Government being owner of the land. This being so, the Government has every right to evict a trespasser or unauthorised occupant of the land which is not private property of anybody and which lies within the municipal area or to settle any such land to anybody.
11. It is therefore found that under Rule 18 of the Regulation, the Deputy Commissioner has the authority to eject any person from the land over which no person has acquired the rights of a proprietor, land-holder or settlement-holder. Here in the present Rules, the petitioners have not acquired any right of a proprietor, land-holder or settlement holder with regard to the lands in question. We find that the petitioners are not entitled to any relief as prayed for. The petitions have to be rejected.
12. The result is that the petitions are rejected The Rule is discharged with respect of each of the cases. There is no order as to costs. The stay order granted by this Court on 29-8-80 stands vacated.
D. Pathak, Acting C.J.
13. I agree.