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B. Govinda Rao Vs. District Collector, Ernakulam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. No. 4036 of 1982-D
Judge
Reported inAIR1983Ker10
ActsKerala Land Conservancy Act, 1958 - Sections 5; Kerala Municipal Corporations Act, 1961 - Sections 210
AppellantB. Govinda Rao
RespondentDistrict Collector, Ernakulam and ors.
Appellant Advocate K.V. Kuriakose and; K. Surendra Mohan, Advs.
Respondent Advocate Adv. General,; M.P.R. Nair,; M.K. Chandramohan Das,;
DispositionPetition allowed
Cases Referred and Caledonian Railway Co. v. North British Railway Co.
Excerpt:
property - easement - section 5 of kerala land conservancy act, 1958 and section 210 of kerala municipal corporations act, 1961 - district collector authorized construction of bunks with view to hand over to disabled persons in accordance with scheme adopted by government - petitioner contended that creation of bunk obstructed front view of his hotel - petitioner challenged construction of bunks on public lands as unlawful - bunk construction in violation of law - bunk is obstruction to use of street qua street - violates public right of user of public street - any member of public offended or injured can approach court and seek appropriate relief - petitioner as owner of adjoining property justified in challenging impugned construction - held, impugned construction liable to be.....ordert. kochu thommen, j.1. ernakulam was once a sleepy little town with well maintained roads having clean side-walks for the pedestrians to walk upon. that was when cochin was cochin and the gardens smiled all along the parks. over the years the city has grown many times in size and population. the roads with gutter everywhere are now crowded with vehicles racing against each other; and the pavements, with pits and holes in the ground and advertisement boards hung dangerously low from the branches of trees, have become far too dangerous for the weary pedestrians to walk upon. many of the roads are poorly lit, if lit at all, and it is a common sight to see rubbles, sand, bricks, drainage pipes, and the like left for months together on the sides of the roads all over the city. with buses,.....
Judgment:
ORDER

T. Kochu Thommen, J.

1. Ernakulam was once a sleepy little town with well maintained roads having clean side-walks for the pedestrians to walk upon. That was when Cochin was Cochin and the gardens smiled all along the parks. Over the years the city has grown many times in size and population. The roads with gutter everywhere are now crowded with vehicles racing against each other; and the pavements, with pits and holes in the ground and advertisement boards hung dangerously low from the branches of trees, have become far too dangerous for the weary pedestrians to walk upon. Many of the roads are poorly lit, if lit at all, and it is a common sight to see rubbles, sand, bricks, drainage pipes, and the like left for months together on the sides of the roads all over the city. With buses, lorries and cars driven recklessly at maddening speed, unmindful of the pedestrians, the public streets in Ernakulam have become far too narrow to control the traffic, and the police in these circumstances look on helplessly. To make matters worse bunks of all kinds, some on wheels and some without wheels', some movables and others fixed, some licenced by the Corporationand many not so licenced, have sprung up all over the city. An enthusiastic young District Collector once decided to enforce the law presumably by recourse to the provisions of the Ker. Land Conservancy Act, 1957 (the 'Conservancy Act'). He ordered - the removal of the bunks from public streets. This was immediately challenged by the bunkowners in various writ proceedings. My learned brother Chandrasekhara Menon J.. after a thorough and lucid exposition of the relevant law, if I may say so with the utmost respect, disposed of the Original petition upholding the jurisdiction of the District Collector, to order the removal of the bunks, whether or not licenced by the Corporation, but subject to notices being issued before action was taken. This is what he stated at the end of his judgment:--

'I think I should here make it clear that it is the duty of the Collector as well as the Corporation to remove the obstruction in the public streets. Whatever be the difficulties that may be caused to petty traders, the members of the public have got a legal right to use the foot-paths in an unobstructed manner. The Corporation and the Revenue authorities have a legal duty to see that such right of the public is maintained .........' (1982 Ker LT 133): (AIR 1982NOC 118) (Ker).

2. The converse is the position in the present case. Here the District Collector has authorised the construction of bunks with a view to handing over the same to disabled persons in accordance with a scheme adopted by the Government. (Exts. R1 and R1 (a)). The bunk in question is the one that was constructed on the side of the Durbar Hall Road in front of the petitioner's hotel very close to the point at which the road joins the Foreshore Road and the Broadway. The bunk is right in front of the petitioner's compound wall at its western and where it touches the adjoining wall of the Kerala State Electricity Board compound. In front of the bunk the Durbar Hall Road takes a turn leaving a little extra space. The petitioner contends that the bunk obstructs the front view of the petitioner's hotel, thereby diminishing its amenities and conveniences. He says that he is aggrieved by the erection of the bunk which covers a portion of the frontage of his hotel. He has pointed out that the bunk has been un-lawfully constructed on public street which is Government property vested in the Corporation of Cochin under Section 210 of the Kerala Municipal Corporations Act, 1961 (the 'Corporations Act'). In the Original petition dated 10th June 1982 the petitioner had averred that the 1st respondent, the District Collector, had no power or authority to sanction the construction of a bunk on the Government land in question. In the counter-affidavit dated 23-6-1982, sworn by the 3rd respondent, the Tahsildar on behalf of himself and the 1st respondent, the District Collector, it is stated that the cabin is located about 33 links away from the border of the main road. There is no specific averment as to the exact nature of the land on which the bunk stands, apart from saying that it is Government porarnboke land. This is significant, because it is clear from the averments in the petition that, the bunk -stands on the side of the Durbar Hall Road. In the rejoinder dated 25-6-1982 filed by the petitioner in answer to 1st and 3rd respondents' counter-affidavit dated 23-6-1982 he specifically stated :--

'6. It is further submitted that the poramboke land in question is vested in the Corporation of Cochin under S. 210 of the Kerala Municipal Corporations Act. The impugned action is unauthorised and illegal for want of sanction of the Corporation also.'

The Corporation of Cochin, the 2nd respondent, in their counter-affidavit dated 28-6-1982 stated:

'3. So far as this respondent is concerned, it is submitted that under Section 210 of the Kerala Municipal Corporations Act, all public streets in the city not reserved under the control of Central or State Government have vested in the Corporation. The Corporation is also empowered under Sec. 230 of the said Act to remove any encroachment in or over any street the control of which is vested in the corporation.'

Although the respondent-Corporation has not specifically and categorically stated that the land on which the bunk stands is property vested in the Corporation, that appears to be the implication of their averment. In any case they have not so far denied the petitioner's contention that Section 210 of the Corporations Act governs the land on which the bunk stands. The Corporation has fur-ther stated that their permission had not been sought before the bunk was constructed. The averment of the petitioner as regards the nature of the Government poramboke has not been denied by any one of the respondents. Although in his rejoinder dated 25-6-1982 the petitioner had specifically referred to Section 210 as having been attracted to the land in question, respondents 1 and 2 did not contradict that statement by filing an affidavit to that effect. In view of the interim order of stay granted by this Court on 11-6-1982 in C. M. P. No. 11511/82, the Government Pleader requested for an early hearing of the O. P. Accordingly the hearing commenced on 6-7-1982. On 7-7-1982 the petitioner moved a petition to implead the State of Kerala as an additional party. Since no additional allegations had been made by the petitioner, the petition was allowed on 7-7-1982 itself. The State is thus imp leaded as respondent No. 7.

3. At the very outset of his arguments the petitioner's counsel Shri K.V. Kuriakose laid much stress on the peti-ioner's contention that the land on which the bunk has been constructed is Government property vested in the Corporation of Cochin in terms of Section 210 of the Corporations Act. He referred to the relevant averments in the Original Petition as well as in the rejoinder and pointed out that the specific allegation of the petitioner on the point, which is a matter within the special knowledge of respondents 1 to 3, has not been denied by any one of them. I then indicated from the Bench that it would be open to the Government or its officers -- particularly respondents 1 and 3 to specifically deny this allegation, if they so desired, and place before me whatever record was available in sup-port of their stand on the point. I am indeed surprised that neither the first nor the third nor the seventh respondent has chosen to file an affidavit on the question of vesting or produce any supporting document, I should have expected them to deny the fact of vesting if that was the truth at the earliest opportunity. No prompting was needed for it. Even in the affidavit sworn by the 1st respondent on 10-7-1982 (filed on 13-7-1982) there is no whisper on the question of vesting. In the circumstances, there cannot be any controversyabout the nature of the property on which the hunk stands. The petitioner's assertion that the bunk has been constructed on Government property duly vested in the Corporation of Cocbin under Section 210 of the Corporations Act stands uncontroverted, and I would therefore proceed on that basis.

4. Further, in the course of the arguments on 9-7-1982, I suggested to the Government pleader that in the light of the various averments, it would be proper if the 1st or the 3rd respondent would file an affidavit on or before 12-7-1982 stating whether or not prior to or during the pendency of the O. P. the bunk has been allowed to be occupied by any disabled persons or other outsiders, and, if so, the names and other particulars of the occupants, so as to enable the petitioner to implead them in the present proceedings. No such affidavit was filed on the 12th or subsequently. No request was made for further time to file any such affidavit. The only affidavit that has been filed is the one which was sworn by the 1st respondent on 10-7-1982 in which he has not stated anything on the point. The 1st respondent has stated that he was out of station when the interim order o this Court was served at his residence on 11-6-1982 and that he did not return till the following day. The 3rd respondent who was admittedly in station at all material times did not bother to file any fresh affidavit.

5. In the affidavit sworn by the 3rd respondent on 23-6-1982, he states :--

'The interim order of this Hon'ble Court was served on the 1st and 3rd respondents only on the afternoon of 11-6-1982. As the 1st respondent was not in station on that date, this respondent immediately on receipt of the copy of the interim order of this Hon'ble Court went to the spot to see that further construction is stopped. It was then found that the construction of the bunk had already been over............ '

The 6th respondent in his affidavit dated 23-6-1982 says that the bunk was donated by the Lions Club to the Government. These averments show that the 3rd respondent did not know that the construction of the bunk donated by the Lions Club to the Government was overuntil the afternoon of 11-6-1982 when he rushed to the spot to stop further construction of the bunk in terms of the interim order. He then found that the construction was over. This shows that until the interim order of this Court was served on the 3rd respondent and until he went to the site no person had been allowed to occupy or had in fact occupied the bunk. If the facts were different, he would have stated so in his affidavit of 23-6-1982 itself or at any rate subsequently, especially because the question began to loom large. The silence of the 1st respondent on this point even in his affidavit of 10-7-1982 is indeed significant. The only presumption that can be reasonably drawn from this significant silence on the part of respondents 1. 3 and 7 on this important point is that neither the Government nor their officers have so far permitted any persons to occupy the bunk and that none has so far occupied it with their knowledge and consent. If, as a mater of fact, any person has actually occupied the bunk during the pendency of this O. p. and subsequent to the interim order of this Court, that occupation would be an invalid and improper act, and any person abetting such occupation would have acted improperly and in total opposition to the disclosure made to this Court by the respondents. I do not however presume such impropriety. I would, on the contrary, presume that the respondents have acted legally, properly and in good faith and with due deference to the directions of this Court. In the absence of any averment to the contrary in any one of the affidavits so far filed by the respondents, I would take it that the bunk has not been allowed to be occupied by any person outside the Government and that therefore all the necessary and proper parties are before this Court.

6. It is stated in the counter-affidavit dated 23-6-1982 sworn by the 3rd respondent on behalf of himself and the 1st respondent, that, in accordance with Exts. R1 and R1 (a) scheme, the 6th respondent representing the Lions Club, Cochin, was allowed by the 1st respondent to construct a bunk on the land in question to be handed over by the Govrment to a disabled person on a rent of Rs. 10/- per month which is to be remitted to the Government. In para 11of the counter-affidavit this is what he says;--

'......the Government Poramboke landis neither assigned nor leased put to any of the private party. The land and thesales cabin put up thereon remains the property of Government, The sales cabin is owned by Government through the instrumentality of the State-owned corporate body by name Kerala State Handicapped Persons Welfare Corporation Limited as envisaged in the scheme. The bunk is given to a physically handicapped person purely on rental arrangement. The beneficiary is liable to surrender the sales cabin at any time when demanded by Government. The terms of the agreement executed by the beneficiary with Government will clearly show that the ownership of the land on (sic. and) sales cabin remains with Government. A pro forma copy of the agreement is produced herewith and marked Ext. R3.'

The recital in Ext. R3 shows that the agreement is to be executed between 'the Governor of Kerala (hereinafter called the 'Government').........' In theschedule to Ext. R3 it is stated that the agreement is to be executed by the Kerala State Handicapped Persons Welfare Corporation, Ltd, on behalf of the Government of Kerala. The averments and Ext. R3 seem to indicate that the bunk remains in the ownership of the Government notwithstanding the intervention of the Government Company. They further show that a sum of Rupees 10/- will be payable to the Government every month as rent by the allottee of the bunk, viz.. the concerned handicapped person. Although it is averred that the poramboke land is 'neither assigned nor leased out' to any private party, there is no doubt that the bunk which is a permanent fixture on the land by means of a concrete foundation is to be leased or licensed to the allottee. Notwithstanding the averments to the contrary, the legal position sought to be created by the transaction does not seem to be in doubt. That part of the land which is absorbed in the structure and covered by it is merged in it. [per, Widgery, L. J. in Petticoat Lane Rentals Ltd v. Secretary of State for the Environment, (1971) 1 WLR 1112, and also in Aston v. Secretaryof Slate for the Environment. 'Cited in Jennings Motors Ltd. v. Secretary of State for the Environment, (19821 2 WLR 131, Dated April 9, 1973]. The land on which the bunk stands as a fixture will be the subject matter of a lease or licence in favour of the allottee, thereby bringing it within the meaning of the word 'assignment' under the Kerala Land Assignment Act, 1960, (the 'Assignment Act'). It is however categorically stated by the Government pleader that no provision of the Assignment Act or the Rules, including Rule 24, has been invoked. He has also categorically stated that the transaction in question does not attract the provisions of the Conservancy 'Act or the Rules,

7. The argument of the Government Pleader, (which was supported and supplemented by the Advocate General who appeared and submitted arguments in the course of the hearing) is to the following effect. The land in question is Government poramboke land. It has not been vested in the Corporation of Cochin. The Government have not leased or created a licence in favour of any private party. They have only allowed the allottee to occupy the bunk on payment of rent of Rs. 10/- per mensem. The Government can do what they like with their own property. The provisions of the Conservancy Act have no application. The petitioner has no locus standi as he is not aggrieved by the presence of a bunk in front of his hotel, for, the bunk stands on Government property. Counsel for the 2nd respondent-Corporation submits that the Corporation has the right to remove any construction on land vested in the Corporation. The bunk stands on a property by the side of the public street. The permission of the Corporation was not sought for the construction of the bunk. The counter-affidavit filed by the 6th respondent, on behalf of the Lions Club, shows that the Club donated the bunk to the Government in response to the 1st respondent's request. The bunk was constructed by the Club at the site pointed out by the Tahsildar, the 3rd respondent. That site was approved by the District Collector, the 1st respondent. The Club proceeded with the installation of the bunk only when the approval was communicated to them in writing by the 3rd respondent.

8. The contention of the Government that the proposed transaction between the Government and the allottee is neither a lease nor a licence is unsustainable in view of the fact that allottee will be in occupation of the land on payment of what is called a rent. If the amount is received by the Government as rent, it would be a transaction of lease. On the other hand if the amount were to be considered as a fee it would be no less than a licence. In either event the bunk being a fixture on a concrete foundation permanently affixed on land, the arrangement falls within the definition of an assignment as defined in the Assignment Act. Whether or not it so falls within the definition of assignment, the occupation of the bunk by a private party win be an occupation within the meaning of the provisions of the Kerala Land Conservancy Act, 1957, and the rules made thereunder.

9. Section 3 of the Conservancy Act provides;--

'3. Property of Government defined.--(1) All public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same, the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated, save in so far as the same are the property of-

(a) Jenmies, Wardgars or holders of Inams or

(b) persons registered in the revenue records as holders of lands in any way subject to the payment of land revenue to the Government; or

(c) any other registered holder of land in proprietary right; or

(d) any person holding land under grant from the Government otherwise than by way of a lease or licence; or

(e) any person claiming through or holding under any of the persons referred to in Clauses (a), (b), (c) or (d), are, and are hereby declared to be the property of Government, except as may be otherwise provided by any law for the time, being in force, subject to all rights of way and other public rights and to the natu-ral and easement rights of other land owners and to all customary rightslegally subsisting.

XX XX XX XX XX'

Section 4 (1) (a) says:

'4. (1) 'Poramboke' defined:-- 'Por-amboke' shall mean and include un-assessed lands which are the property of Government under Section 3 (1) or (2) used or reserved for public purposes or for the communal use of villagers such as

(a) all public roads, streets, lane a, pathways the bridges, ditches, dykes and fences on or beside the same;

XX XX XX XX XX'

An 'occupant' is defined under Section 4 (2) as:--

'Occupant shall mean a person actually in possession or occupation of a land which is the property of Government.' A person occupying a bunk erected on Government property is an occupant Section 5 says;--

'5. Land which is the property of Government not to be occupied without permission.--

(1) From and after the commencement of this Act, it shall not be lawful for any person to occupy a land which is the property of Government, whether a poramboke or not without permission from the Government as maybe empowered, in this behalf.

Explanation.-- For the removal of doubts it is hereby declared that the erection of any wall, fence or buildingor the putting UP of any overhanging structure or projection (whether or a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land.

(2) Notwithstanding anything contained in Sub-section (1), it shall not be lawful for any person to erect or cause to erect any wall, fence or building' or put up or cause to put up any over-hanging structure or projection (whether on a temporary or permanent basis) on or over any land referred to in Sub-section (i) except under and in accordance with the terms and conditions of a licence issuedby; the Government or such officer of the Government as may be empowered by them in this behalf.

(3) Any person desirous, of obtaining a licence referred to in Sub-section (2) mayapply to the Government or to such officer of the Government as may be empowered by them in this behalf for an appropriate licence.

(4) An application under Sub-section (3) shall be in such form and shall contain such particulars and shall be accompanied by such fee, a may be prescribed by rules made under this Act.'

This section shows that the land which is the property of the Government shall not be occupied by any person except in accordance with the terms and conditions of a licence issued by or on behalf of the Government, The Explanation to Section 5 (1) is significant. Erection of any wall, fence or building or overhanging structure is occupation of the land covered by it. The same must be the effect if a person is put in occupation of a structure erected by the owner of the land. The occupant occupies not the structure, but also the land absorbed and merged in it [Per Lord Widgery C. J., (1971) 1 WLR 1112) (supra).] In the present case, even if the structure has been constructed by or on behalf of the Government, its occupant would occupy the land underneath the structure. There is no case that any licence has been issued in terms of Section 5. The definite case of the Government as urged before me by the Government pleader and the Advocate General, is that the Conservancy Act has not been invoked and that it has no application to the facts of this case. Assuming that the Conservancy Act, notwithstanding the Government Pleader's arguments to the contrary, can be construed to apply to the undisputed facts of the case, and assuming further that Exts. Rl and Rl (a) scheme can be so stretched as to consider them as constituting sufficient licence within the meaning of Section 5 (2) -- although there is no such contention on behalf of the State -- even so for the reasons which I shall presently show, the provisions of Section 5 (2) in the present case would not enable the Government or respondents 1 and 3 to construct or authorise the construction of a bunk or put an allottee in possession or occupation thereof. The contention of the Government Pleader that, being a Government property, the Government can (put a private person in occupation andpossession of such property, otherwise than in terms of the Assignment Act or the Conservancy Act or any other law has no substance. Any such argument, in the absence of any evidence of the legislative intent to support it in the relevant enactment, is totally opposed to the principle laid down as early as 1920 in the well known case of Attorney General v. De Keyser's Royal Hotel Ltd. (1920 AC 508). In that case Lord Atkinson rejected the argument urged on behalf of the Government that the Crown was free to rely on the Royal Prerogative and ignore the statutory provisions. Lord Atkinson said:--

'......when such a statute, expressingthe will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance, whichever mode of expression be used, the result intended to be indicated is, I think, the same -- namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.'

In the circumstances, as far as I can see, it is not competent for the State to enter into any transaction evidencing an assignment or permitting an occupation of Government property otherwise than in terms of the relevant enactment,

10. In the present case that question is academic, for, as I stated earlier, the property in question is not available for 'assignment' or for permitting 'occupation' as it has always been a vested property in terms of Section 210 of the Corporations Act. There can be no controversy on this point in the absence of any pleadings to the contrary. There is no averment to the effect that the property in question does not satisfy the definition of a public street. As stated by the petitioner, the land on which the bunk has been erected is Govern-ment poramboke land lying on the side of the roadway and adjacent to the property owned by the petitioner on the south-east and the K. S. E. Board on the south-west. Such property comes within the definition of public street as defined under the Corporations Act. Section 3 (29) of the Corporations Act defines a public street as follows:--

''public street' means any street, road, square, court, alley, passage or riding-path over which the public have a right of way, whether a thorouchfare or not, and includes--

(a) the roadway over any public bridge or causeway;

(b) the foot-way attached 'to any such street, public bridge or causeway; and

(c) the drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, veranda or other structure, which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property is private property or property belonging to the Government;'

This is undoubtedly land lying on the southern side of the roadway (the Durbar Hall Road). This land lies up to the boundaries of the adjacent properties. There is no averment to say that it is not so. It is not stated that there is any other Government property in the area adjacent to which the side land lies. AH that is stated is that the bunk stands about 33 links away from the side of the road. But that fact does not make it any less a property lying on the side of the roadway up to the boundaries of other adjacent properties. In the circumstances, I hold that the bunk has been erected on a 'public street,' as defined under the Corporations Act, That being the position. Section 210 of the Corporations Act is at--tracted. It reads:--

'210. Vesting of public streets and their appurtenances In corporation, All public streets in the city not reservedunder the control of the Central or the State Government, with the pavements, stones and other materials thereof, and all works, materials implements and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts, whethermade at the cost of the municipal fund or otherwise, in along side or under any street, whether public or private and all works, materials, implements and other things appertaining thereto and all trees not being private property growing on public streets or by the side thereof, shall vest in the Corporation.

(2) Any property vested in the corporation under Sub-section (1) may be used by the council for any municipal purpose and as deemed fit by the council.

(3) The Government may, by notification, withdraw any such street sewer, drain, drainage work, tunnel, culvert or tree from the control of the corporation.'

There is no case that the public street in question has been reserved under the control of the Central or the State Government, There is no notification withdrawing the street from the control of the Corporation. In the circumstances, the land in question,, being part of a 'public street' which has not been reserved under the control of the Government or withdrawn from the control of the Corporation, is clearly vested in the Corporation in terms of Section 210. Over such public street neither the Government nor the Corporation has any right to create any obstruction or use it in any fashion other than as a public street. The Government have no competence to create any obstruction on the public street or deal with it in any fashion which interferes with the vested right of the Corporation insofar as the public street as a street is concerned; nor has the Corporation any authority to deal with the street other than as a street. Erection of a bunk on a 'public street' is to put the street to a use other than as a street. To authorise such erection is not only an interference with the use of the street, but an invalid act permitting the street to be used otherwise than as a street. This is one of the principles laid down by this Court in Achuthan v. District Collector (1982 Ker LT 133): (AIR 1982 NOC 118) following the dictum of the Supreme Court in State of U. P. v. Ata Mohd. (1980) 3 SCC 614; (AIR 1980 SC 1785). The street has vested in the Corporation only qua street and not as absolute property. What is vested in the Corporation is not general property or aspecies of property known to the common law, but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the street as a street and not for any other purpose,

As stated in S. Sundaram lyyar v. Municipal Council of Madura, (1902) ILR 25 Mad 635, the Municipal Council

'......does not own the soil from thecentre of the earth usque ad colum, 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,' This observation was quoted with approval by the Supreme Court in (1980) 3 SCC 614: (AIR 1980 SC 1785).

11. Referring to the contention that Section 210 (2) authorised the Corporation to allow construction of bunks on public streets, if the Corporation so decided, this Court said in 1982 Ker LT 133 at 137: (AIR 1982 NOC 118):--

'It was contended on behalf of the petitioners that because of Sub-section (2) of Section 210, which is to the effect that any property vested in the Corporation under Sub-section (1) may be used by the council for any municipal purposes and as deemed fit by the council, the Corporation is entitled to construct bunks by the road side and on the foot-paths and letting out the same is user by the council for a municipal purpose or at least user as deemed fit by the council. In the light of the Supreme Court decision there cannot be any doubt that the property that is vested in a Municipal Council or Corporation is a special Property created by the statute which is vested in it for a public purpose. That such property is with the Municipal Corporation or Council only as long as the street continues as a public way and it determines when the street ceases to be a way when the right of the Corporation ceases. The Corporation cannot use a public street for a purpose other than the purpose for which it has been vested in it. The municipal purpose or purpose deemed fit by the council in Section 210 (2) has to be construed on thebasis of what is vested in the Corporation under Section 210 (1). It cannot be used by the Corporation for any purpose other than as a street......... '

This I see as clear authority for the proposition that even the Corporation is not competent to allow the erection of a bunk or such obstructions on public streets,

12. Although the Government is the owner of the properly, it is property that is vested in the Corporation under Section 210 and the ownership of the Government is thus subject to and qualified' by what is vested in the Corporation. Any use of the property by the Government inconsistently with the right vested in the Corporation is contrary to the legislative grant under Section 210. Respondents 1, 3 and 7 have thus violated the vested right of the Corporation by authorising the construction of the bunk. To have allowed the construction of the bunk, even without seeking the permission of the Corporation, was not only an invalid act, but a highly improper act The Corporation is an authority entrusted by the legislature with the civic responsibility of administering the city in terms of the Corporations Act, To have constructed or authorised the construction of a bunk on a public street vested in the Corporation was to act contrary to the legislative mandate. Any such interference is derogatory to civic administration.

13. Even invoking the provisions of the Conservancy Act and the Rules, the land in question, being vested in the Corporation, cannot be allowed to be occupied by anybody other than the Corporation. This is clear from Section 3 which says:--

'.........and are hereby declared to bethe property of Government, except as may be otherwise provided by any law for the time being in force,.........'

This would imply that the power under Section 5 of the Conservancy Act is limited by any right created under any law for the time being in force. In the present case, the property has always been vested in the civic administration under the relevant enactments in force from time to time.

14. Apart from the question of vesting under Section 210 of the Corporations Act,a public street, in my view, cannot beused for any purpose other than as astreet, it is street dedicated to the public. They have the unhindered right ofpassage over it at all times, subject tothe rules of traffic control. In the absence of an empowering statute, theGovernment as owner of the propertycannot any more than in the case of aprivate owner who has dedicated hisproperty to the public, use'the street otherwise than as a street.

15. The scheme formulated under Exts. R 1 and R1 (a) is for a worthy cause and undoubtedly deserves full public support. The scheme must however be implemented in accordance with the law. The Government have no authority to act contrary to the legislative mandate or grant in favour of the Corporation. The location of the bunks as contemplated under the scheme is stated to be as follows

'Throughout the State. First stage --District Headquarters. Municipal Towns etc. in the vicinity of Railway Stations, Bus Stations, Main road side etc.'

This is a scheme which must be understood and implemented consistently with the law. It only says 'hi the vicinity of .........main road side.' Note the word'vicinity'. The scheme does not say that the location should be on the. main road side. Respondents 1 and 3 misunderstood the scope of the scheme when they allowed the construction of the bunk on the main road side itself. I am told that another bunk has already been constructed and commissioned in terms of the scheme close to the Law College, Erna-kulam. in the 'vicinity' of the 'main road side,' but not on the 'main road side.' it is stated at the bar that it is totally outside it, and yet conveniently accessible to it. If that were the case, it would be perfectly in consonance with the scheme and the law. Like bunks, in accordance with the law, can of course be erected under the scheme. I am personally of the view that the Government must erect as many bunks as the scheme permits and in accordance with the relevant law. But to erect a bunk on the side of the roadway which is 'public street', as defined under the Corporations Act, is to violate the law and to act in excess of what is permitted or warranted under the scheme. Inmy view respondents 1 and 3 have acted in excess of their authority.

16. On the facts of this case it is unnecessary for me to express any final view as to whether or not it is possible to construe the scheme in question (Ext. Rl and R1 (a)) as sufficient licence in terms of Section 5 of the Conservancy Act. Nor is it necessary for me to express a final view as to whether or not it is necessary for the Government to invoke the provisions of the Conservancy Act or the Assignment Act in authorising construction of bunks in terms of the scheme on Government property other than property falling under Section 210 of the Corporations Act. Those questions, interesting and important as they are, do not require to be conclusively answered for the purpose of the present case, although I have expressed my tentative views on them. But I am positively of the view that, in respect of lands vested in the Corporation as 'public streets' in terms of Section 210 read with Section 3 (29) of the Corporations Act, it is not competent either for the Goverment or for the Corporation to permit construction of bunks or like structures which are inconsistent with the use of streets qua streets, except in so far as specific provisions have been made in that behalf under the Act, since in the present case there is no dispute, in the absence of any pleading to the contrary, that the land in question is part of the public street which has vested in the Corporation, the construction of the bunk and its continued existence on the property constitute violations of the legislative mandate contained in Section 210 and other provisions of the Corporations Act.

17. The Government have sufficient power under the Conservancy Act, and the Commissioner of the respondent-Corporation under Section 230 of the Corporations Act, to remove obstructions from public streets. They have not only the power, but a statutory duty to do so.

18. The petitioner is the owner of the property adjacent to which the GOV-ernment land in question lies. The bunk stands in front of the hotel and to that extent the view from the rooms of his hotel is obstructed. Apart from this, as the petitioner's counsel contends, the bunk in so far as it stands in front ofthe compound wall of the hotel would be an obstruction to right of way in the event of the petitioner deciding to open a Rate at that portion of the compound wall. The bunk has been erected in violation of the law. The transgression of the statute has been sanctioned by the Government or its officers. The bunk is an obstruction to the use of the street qua street. It violates the public right of user of the public street. Any one member of the public offended or injured by such transgression of the law by or at the instance of the public authorities, can approach the court and seek appropriate relief. The petitioner as the owner of the adjoining property is aggrieved not only as owner, insofar as the bunk has diminished the amenities of the property, including its visual amenity, but also as a member of the public entitled to protest against transgression of the law by the public authorities. He has, as a citizen, a ratepayer and a tax-payer, the necessary locus standi, being sufficiently aggrieved, to maintain the present action. See the principles stated in Attorney-General, Exrel. McWhirter v. Independent Broadcasting Authority ((1973) QB 629, 649); Regina v. Greater London Council Ex parte. Blackburn ( (1976) 1 WLR 550); Gouriet v. Union of Post Office Workers (1978 AC 435. 495, 513, 518); Arsenal Football Club Ltd. v. Smith (Valuation Officer) (1979 AC 1): Maurice v London County Council ((1964) 2 QB 362): and Caledonian Railway Co. v. North British Railway Co. ( (1881) 6 AC 114, 125).

19. Accordingly I declare that the bunk in question was constructed on land vested in the Corporation of Cochin as a public street, and it is liable in law to be removed forthwith.

20. I further declare that it is the legal duty of respondents 1, 3 and 7 to take immediate steps under the relevant provisions of the Land Conservancy Act or any other law to evict any person found to be in occupation of the bunk and remove the offending structure. I also declare that the 2nd respondent-Corporation is bound to take immediate steps in terms of Section 230 and other provisions of the Corporations Act for the removal of the bunk in question.

21. Accordingly I direct respondents 1 2, 3 and 7 to take immediate steps according to law to remove the bunkfrom the Government property which I have declared to be at all material times vested in the Corporation.

22. In parting with this case I wish to express my personal hope that the bunk which is now ordered to be removed will be located by the Government as urgently as possible in an appropriate place in compliance with the relevant law so that the implementation of the scheme will not be unduly delayed on account of this decision.

23. The O. P. is allowed in the above terms. The parties will bear their respective costs.


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