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PETITIONER: THIRUNAGAR PANCHAYAT

       Vs.

RESPONDENT: MADURAI CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY

DATE OF JUDGMENT: 31/03/1966

BENCH:

ACT: Madras Village Panchayats Act (10 of 1950). s. 58-Scope of.

HEADNOTE: The  respondent-Society  formed a housing colony,  laid  out public  roads and set apart public common places for  parks. play-grounds,  schools, library, hospital and club  for  the benefit of the members of the colony.  The respondent passed a resolution for handing over the roads and the other common places to the appellant-Panchayat, but later, passed another resolution cancelling it.  The appellant, thereupon, filed a suit  for  an  injunction restraining  the  respondent  from obstructing  the appellant in the exercise of its  statutory duties  in  relation to the roads and other  common  places. The  High  Court, on appeal, held that the streets  and  the roads in the colony alone would vest in the appellant  under the  Madras  Village  Panchayats  Act,  1950  and  that,  an injunction  could be granted only with respect to them,  but not,   with  respect  to  the  other  amenities  which   the respondent had provided for the residents of the colony. In appeal to this Court, it was contended that the amenities excluded would also vest in the appellant under s. 58 of the Act,  especially  because  they had been  dedicated  to  the public. HELD:The  scope of the section must be confined to  communal property  and  income  of the Panchayat  which,  by  custom, belong to the villagers in common, or, has been administered for  their  benefit as a matter of custom.   Therefore,  the section cannot be extended to amenities such as parks, play- grounds  etc. provided by the respondent for the benefit  of the members of the colony; and dedication is not a  relevant circumstance in considering its scope and meaning. [121 E-F; 122 A-B].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 374 of 1965. Appeal  by special leave from the judgment and decree  dated August 9, 1963 of the Madras High Court in L.P.A. No. 45  of 1962. A.   V.  Narayanaswami Iyer and S. Venkatakrishnan, for  the appellant. A.   K.  Sen,  N.  Natesan  and R.  Ganpathy  Iyer  for  the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the  judgment  and  decree of the Madras  High  Court  dated August 9, 1963 in Letters Patent Appeal No. 45 of 1962.

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119 The  suit  which is the subject-matter of  this  appeal  was filed  by  the Tirunagar Panchayat, hereinafter  called  the ’Panchayat’,   against   the  Madurai   Co-operative   House Construction  Society (hereinafter called the ’Society’)  in the District Munsif’s Court of Tirumangalam.  The  Tirunagar Colony has been formed by the Society.  The Colony  consists of about 300 houses and its total population exceeds  1,500. At  its inception the colony was within the jurisdiction  of the  Tirupparakundram Panchayat.  On February 21,  1955  the Tirunagar  colony was excluded from  Tirupparankundram  Pan- chayat  and  was  declared as a  separate  village  and  was constituted  as  a  separate Panchayat  known  as  Tirunagar Panchayat.   In the formation of the colony the Society  has laid out and set apart and formed public roads, parks,  play grounds and other public common places.  There was a  change in the Board of Directors of the. defendant-Society and as a consequence  of this change the Society passed a  resolution on July 23, 1956 cancelling its previous resolution  handing over  the roads, streets and scavenging arrangements to  the Panchayat.  The Panchayat therefore filed a suit-O.S. 38  of 1957, in the District Munsif’s Court of Tirumengalam for  an injunction  restraining  the Society and its  servants  from obstructing  and  interfering with its  lawful  exercise  of statutory  duties  relating  to the  roads  and  streets  in Tirunagar  and  cleaning of latrines,  public  and  private, lighting  the houses and roads and making  arrangements  for the  civic needs of the village of Tirunagar.   The  Society contested  the suit on the ground that the  constitution  of the  Panchayat was illegal as the provisions of  the  Madras Village Panchayats Act (Madras Act 10 of 1950),  hereinafter to  be  called the ’Act’, had not been complied  with.   The Society also contended that the public cannot use the  roads or streets as a matter of right, that the entire colony  was a  closed  one  and no outsider except the  members  of  the Society  had  the  right to enter the colony  and  that  the Parks,  central oval, play grounds and open spaces were  the exclusive properties of the Society.  The contentions of the Society  were  all  over-ruled  by the  trial  court  and  a permanent injunction was granted to the plaintiff-Panchayat, as prayed for.  The decision of the trial court was affirmed by the Subordinate Judge of Madurai in  A.S.  92  of   1958. The Society took the matter in Second Appeal to   the   High Court.  The appeal was partly allowed by Ramakrishnan,J. who held  that the streets and roads in Tirunagar  colony  alone would  vest in the Panchayat and that the injunction  passed by  the  lower appellate court should be  confined  only  to streets  and roads in the colony and should not be  extended to any other place like the parks, oval park, play  grounds, schools, library or club and such other amenities which  the Society  had provided for the residents of the colony.   The decision of Ramakrishnan, J. was affirmed by the High  Court in  Letters Patent Appeal and the injunction granted by  the lower  courts was accordingly Confined to roads and  streets and  the  cleaning of public and private latrines,  and  the decree  of  the  lower courts was set aside so  far  as  the injunction related to the parks. play grounds, bus-stand and other public places. 120 The  question presented for determination in this appeal  is whether there is a statutory vesting in the panchayat of the parks,  play  grounds, schools, libraries and  other  public places  which  the  Society provided  for  its  members  and whether the Panchayat is entitled to a permanent  injunction restraining  the  Society  and its servants  in  the  manner

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decreed by the trial court. On behalf of the appellant reference was made to ss. 56  and 58  of  the Act relating to vesting of the property  in  the Panchayat.  Section 56 of the Act reads as follows:               "56.  (1)  All  public roads  in  any  village               (other than district roads and roads which are               classified  by the Government as  national  or               State  highways), shall vest in the  panchayat               together  with all payments, stones and  other               materials  thereof, all works,  materials  and               other  things provided therefore, all  sewers,               drains,  drawings works tunnels and  culverts,               whether made at the cost of the panchayat fund               or  otherwise,  in, alongside  or  under  such               roads,  and  all works, materials  and  things               appertaining thereto.               Section 58 is to the following effect:               "Any  property  or  income  which  by   custom               belongs  to, or has been administered for               the  benefit of, the villagers in  common,  or               the   holders  in  common  of   village   land               generally   or  of  lands  of   a   particular               description  or  of lands under  a  particular               source   of  irrigation  shall  vest  in   the               panchayat  and be administered by it  for  the               benefit   of   the   villagers   or    holders               aforesaid." The  rules framed under the Co-operative Societies  Act  for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools,  markets,  theatres,  hospitals,  clubs,  religious places  etc.  should be made in the layout.   Reference  was made, on behalf of the appellant, to the layout plan Ex.  A- 44  for the Tirunagar Housing colony.  There is evidence  in this  case  that the Government had assigned  to  the  House Building  Society free of cost an area of about 5 acres  for the proposed public amenities like schools, markets etc.  It was  submitted  on behalf of the appellant that  the  parks, play  grounds,  hospitals,  schools etc.  of  the  Tirunagar Housing  Colony would vest in the Panchayat under s.  58  of the Act.  We do not consider that there is any justification for  this  argument.   Under s. 56 of the  Act  all  ’public roads’  in any village shall vest in the Panchayat  together with all, pavements, stones and other materials thereof, all sewers,  drains,  drainage  works,  tunnels  and   culverts, whether made at the cost of the panchayat fund or otherwise. Under  s.  2(20)  of the Act a ‘  public  road’  means  "any street,  road,  square, court, alley,  passage,  cart-track, footpath or riding-path, over which the public have a  121 right  of way".  Section 58 of the Act provides for  vesting of the communal property in the panchayat.  By this  section the  legislature  has provided that any property  or  income which  by custom belongs to the villagers in common, or  the holders in common of village land generally or of lands of a particular  description  shall vest in the  panchayat.   The legislature  has further provided in this section  that  any property or income which by custom has been administered for the  benefit  of the villagers in common or the  holders  in common of village land generally or of lands of a particular description shall vest in the panchayat and be  administered by  it  for  the benefit of the  villagers  or  the  holders aforesaid.  In enacting s. 58 of the Act the legislature has made  a  provision for vesting of two kinds of  property  or income:  (1) property or income which by custom  belongs  to

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the villagers in common or the holders in common of  village land generally or of lands of a particular description,  and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description.  Having regard to the grammatical structure and the  context,  we  are of opinion that  the  expression  "by custom"  qualifies  not only the property  or  income  which belongs to the villagers but also property and income  which has  been administered for the benefit of the  villagers  in common.  It is manifest that s. 58 provides for the  vesting of  such  property and income to which  the  villagers  have acquired  title  as  a matter of custom or  which  has  been administered for the benefit of the villagers as a matter of custom.   It was argued on behalf of the appellant  that  if parks or play grounds or markets had been. dedicated to  the public the Panchayat would acquire title to such  properties under s. 58 of the Act.  We do not think that dedication  is a relevant circumstance in considering the scope and meaning of  s. 58 of the Act.  In the enactment of this section  the legislature  did riot contemplate that parks, play  grounds, schools or temple or hospital dedicated to the public should vest in the panchayat merely by the fact of such dedication. What is required by s. 58 for the’ purpose of vesting is the proof  of  custom by which the villagers in  common  acquire title  to any property or income.  Vesting of  rights  takes place  under s. 58 if there is proof of customary  right  of administration of any property or income for the benefit  of the villagers in common.  Unless therefore there is proof of customary  right,  the Panchayat cannot claim title  to  the property  or  income ad ministered for the  benefit  of  the villagers  in  common.  For example, the  Society  may  have established  a library or a social club or a school for  the benefit of its members Again, a private individual may  have created  a trust for the provision of amenities like  parks, play grounds and hospitals for the residents of the village. In  a  case of this description the legal ownership  of  the Society  or of the trustees will not vest in  the  Panchayat because of the provisions of s. 58 of the Act.  It cannot be supposed  that  such  a  startling  and  unjust  result  was contemplated by the, 122 legislature  in enacting s. 58.  We are accordingly  of  the opinion that the scope of s. 58 of the Act must be  confined to  communal property and income of the panchayat  which  by custom  belongs  to  the villagers in  common  or  has  been administered  for their benefit as a matter of  custom,  and the  scope  of that section cannot be  extended  to  include parks,  play  grounds,  hospitals,  libraries  and   schools provided  by the Society for the benefit of the  members  of the Tirunagar colony. For  these reasons we hold that the judgment and  decree  of the  High Court in Letters Patent Appeal No. 45 of  1962  is correct and this appeal must be dismissed with costs. Appeal dismissed.                             123