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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: ATA MOHD.

DATE OF JUDGMENT08/05/1980

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA

CITATION:  1980 AIR 1785            1980 SCR  (3)1095  1980 SCC  (3) 614

ACT:      Uttar Pradesh Municipalities Act, Sections 2(23) 7, 116 (g) and 118-Scope of.

HEADNOTE:      The  respondent  applied  in  the  year  1939,  to  the Municipal Board, Gorakhpur for granting to him of a lease of plot No.  227 measuring  45’X20’ adjoining  Patri along with the road  running from Golgarh to Alinagar in Gorakhpur. The Board  declined   to  grant  him  the  lease.  On  a  second application dated  10-10-1945, the  Municipal Board passed a resolution  on   24-11-1945  granting   the  lease   to  the respondent. On 8-3-1946 the District Magistrate accorded his approval of the resolution of the Municipality. On 12-4-1946 the respondent  executed a  "KABULIYAT"  in  favour  of  the Municipal Board,  Gorakhpur.  On  23-4-1946  the  respondent applied for  permission to construct a house and submitted a plan  for   sanction.  The   plan  was   sanctioned  by  the Municipality on 8-5-1946.      On receipt of certain representations on 10-6-1947, the District Magistrate  directed the  Chairman of the Municipal Board not  to allow the construction till decision was taken on the question. On 13-6-1947, the Chairman, Municipal Board directed the respondent not to proceed with the construction of the  house. The  State Government on being satisfied that the resolution  regarding the  grant of  the lease  was  not within the  competence of  the  Municipality,  directed  the Commissioner to  cancel the lease granted to the respondent, whereupon the  respondent was  served with a notice on 13-7- 1948 cancelling the lease and calling upon him to remove the construction and deliver vacant possession within 15 days of the receipt  of the  notice. The respondent filed a suit no. 86 of 1948 for an injunction restraining the Municipal Board from  demolishing   or  otherwise   interfering   with   the construction made  by him  on the  disputed land.  The Civil Judge, Gorakhpur decreed the suit and that has become final.      Thereafter, claiming  the  land  as  the  Nazarul  land belonging to  the State,  the appellant-State filed suit no. 109 of  1949 in  the Court of Civil Judge, Gorakhpur against the  respondent   Ata  Mohd.   for  a  mandatory  injunction directing  the   respondent  to   remove  his  material  and construction and  for a  decree for possession over the land

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measuring 45’X20’.  The Civil  Judge Gorakhpur dismissed the suit by  judgment and decree dated 3-10-1950. The appellants plaintiff preferred  first appeal No. 27 of 1951 to the High Court of  Allahabad. The  appeal was heard by a Bench of two Judges but  on a  difference  of  opinion,  the  matter  was referred to  the third Judge. In accordance with the view of the  majority,   the  appeal   preferred  by  the  appellant plaintiff was  dismissed by  its judgment dated 25th August, 1965. On  a certificate granted by the High Court under Art. 135 of  the Constitution  and also  Art.  133(1)(c)  of  the Constitution, the  present appeal in this Court was filed by the plaintiff/appellant. 1096      Allowing the appeal, the Court ^      HELD :  1. The  Municipalities in  various States  were created under the respective Municipalities Acts in order to facilitate the  efficient administration  of  the  Municipal areas and  to provide  lighting, watering and maintaining of public streets  and places.  The  duties  of  the  Municipal Boards are specified in S. 6 of the U.P. Municipalities Act. Under S. 118 of the Act, the Municipal Board is empowered to manage or  control any  property entrusted to its management and  control.   The  vesting   of  the   property,  in   the Municipality is  under S.  116 of  the Act.  S. 116 provides that subject  to any  special reservation  made by the State Government, all  property of  the nature  specified in  this section and  situated within  the Municipality shall vest in and belong  to the Board, and shall, with all property which may become  vested in  the Board,  be under  its  direction, management and  control. While  under clause  (f) of S. 116, all lands and other property transferred to the Board by the Government by  gift, purchase  or otherwise for local public purposes vest  in  the  Municipality,  under  Cl.  (g),  the streets vest  only qua  streets and not as absolute property with the  Municipality. In  the present  case  the  property falls within  the definition of ‘Street’ under section 2(23) of the Act. [1100 A-D, E-F, H]      2. Though  the street  vested in  the Municipal Council under section  116 of  the U.P.  Municipal Act,  it does not transfer to  the Municipality  the right of the owner in the site or soil over which the street exists. Therefore, when a street ceases  to be a highway by its being diverted to some other use,  the interest  of the  Corporate body determines. Therefore, what  is vested in the municipality under section 116(g) is  the street qua street and if the Municipality put the street  to any  other user  than that  for which  it was intended, the  State as  its owner, is entitled to intervene and maintain  an action  and to  get any  person in  illegal occupation evicted. [1102 A, G, 1103 A-B]      Municipal Board,  Mangalur v.  Sri  Mahadeoji  Maharaj, [1965] 2 S.C.R. 242; followed.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1513 of 1970.      Appeal by  Certificate from  the  Judgment  and  decree dated 25th  August, 1965  passed by the Allahabad High Court in first Appeal No. 27 of 1951.      G. N. Dikshit and S. Markandeya for the Appellant.      Yogeshwar Prasad,  Mr. &  Mrs. S.  K. Bagga & Mrs. Rani Chhabra for Respondent      The Judgment of the Court was delivered by

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    KAILASAM, J.-This  appeal is  preferred by the State of Uttar Pradesh  by certificate  granted by  the High Court of Judicature at Allahabad on 18-5-1970 in Supreme Court Appeal No. 105  of 1966  against its judgment and decree dated 25th August, 1965  passed by  it in  first appeal  No. 27 of 1951 dismissing the suit filed by the State of Uttar Pradesh. 1097      The State  of Uttar  Pradesh filed suit No. 109 of 1949 in  the   Court  of   Civil  Judge,  Gorakhpur  against  the respondent Ata  Mohd. for  a mandatory  injunction directing the respondent  to remove  his material and construction and to clear  the land and the plot No. 227 in Mohalla Purdilpur in the  City of  Gorakhpur and  for a  decree for possession over  the  land  measuring  45’  X  20’.  The  Civil  Judge, Gorakhpur dismissed the suit by judgment and decree dated 3- 10-1950. The plaintiff preferred first appeal No. 27 of 1951 to the  High Court  of Allahabad.  The appeal was heard by a Bench of  two Judges  but on  a difference  of opinion,  the matter was  referred to  the third Judge. In accordance with the view  of the  majority,  the  appeal  preferred  by  the plaintiff was  dismissed by  its Judgment dated 25th August, 1965. On  a certificate granted by the High Court under Art. 135 of  the Constitution  and also  Art.  133(1)(c)  of  the Constitution, the  present appeal in this Court was filed by the plaintiff/appellant.      The facts of the case are briefly as follows : The plot in dispute  is plot  No. 227  measuring 45’  X 20’ adjoining Patri alongwith the road running from Golgarh to Alinagar in Gorakhpur. The  respondent Ata Mohd applied to the Municipal Board, Gorakhpur  for grant  to him  of a  lease in the year 1939. The  Board declined to grant him lease. The respondent again applied  on 10-10-1945.  The Municipal  Board passed a resolution on  24-11-1945 granting  to  the  respondent  the lease  and   forwarded  the   resolution  to   the  District Magistrate to  accord his  approval who on 8-3-1946 approved the  resolution  of  the  Municipality.  On  12-4-1946,  the respondent executed a ‘KABULIYAT’ in favour of the Municipal Board,  Gorakhpur.  On  23rd  April,  1946,  the  respondent applied for  permission to construct a house and submitted a plan  for   sanction.  The   plan  was   sanctioned  by  the Municipality on 8th May, 1946.      On receipt of certain representations on 10-6-1947, the District Magistrate  directed the  Chairman of the Municipal Board not  to allow  the construction  till a  decision  was taken on  the question. On 13-6-1947, the Chairman Municipal Board directed  the  respondent  not  to  proceed  with  the construction of  the house.  The State  Government on  being satisfied that  the resolution  regarding the  grant of  the lease was  not within  the competence  of the  Municipality, directed the  Commissioner to  cancel the  lease granted  in favour of  the respondent.  The Executive Officer, Municipal Board, issued  a  notice  on  13-7-1948  to  the  respondent cancelling the  lease and  called upon  him  to  remove  the construction and deliver vacant possession within 15 days of the receipt  of the  notice. The respondent filed a suit No. 86 of 1948 for an injunction restraining the Municipal Board from demolishing 1098 or otherwise  interfering with  the construction made by him on the  disputed land.  The Civil  Judge, Gorakhpur, decreed the suit  as prayed  for. The present suit out of which this appeal arises  was filed  by  the  State  of  Uttar  Pradesh subsequently in 1949.      In the  plaint the  State of  U. P. submitted that plot No.  227   is  Nazrul  land  and  is  the  property  of  the

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Government. It  described the disputed land as adjoining the Patri of  the Municipal  Board running from Golgarh crossing to Alinagar  and situated  beyond the limits of the road and Patri. According  to the  Government,  the  Municipal  Board without knowing  the true  position of  the land  passed the resolution on 24-11-1945 to lease the portion of the land in favour of  the defendant.  In paragraph 10 of the plaint the State of  U.P. alleged  that the  Government or the District Magistrate were  not originally  aware  of  the  land  being Nazrul and of its being dealt with by the Municipal Board in an objectionable  manner and  that the  Municipal Board  was under the  wrong impression  and that  on realising the true state of  affairs on  instructions of  the  Government,  the Municipal Board served a notice cancelling the resolution of the Municipality  to lease  the land  to the respondent. The Government submitted  that it  was entitled  to  retain  its possession on  the ground  (1) that  it never leased out the land  to   defendant  nor   did  the   defendant  make   the construction with  the plaintiff’s  permission; (2) that the Municipal Board  is not  the owner  of the  land and  has no interest in  it and  the Municipal  Board did  not, in fact, execute any  lease in  favour  of  the  defendant  and  that neither  the   resolution  of   the  Municipality   nor  the ‘KABULIYAT’ executed by the defendant would confer any right on the  respondent, the  respondent in his written statement admitted that  the land  in dispute formed part of the Patri of the  public road  running from Golgarh to Alinagar in the City of  Gorakhpur. He  pleaded that there was a practice in the Municipal Board, Gorakhpur not to execute a lease but to obtain  KABULIYATS  from  lessees  and  that  he  bona  fide believed the  Municipal Board  is the  owner of the plot and asked for  permission and  acting on the permission granted, put up  a double storey house costing more than ten thousand rupees. He  further  contended  that  even  assuming  though without admitting  that the  land  in  dispute  belonged  to plaintiff  Government,   the  Municipal   Board   is   fully authorised to  let out  such a  land,  to  him.  He  further submitted that  as the Collector of Gorakhpur has authorised the lease of the land by the Municipality and sanctioned the grant of  the lease to the respondent, the Government is not entitled to eject him.      From the  pleadings, it is clear that the disputed land adjoins Patri  of the road running from Golgarh to Alinagar. It is also admitted 1099 that the  Municipality did  not execute  the lease  but  the respondent executed  a ‘KABULIYAT’  regarding the  land. The contention on behalf of the plaintiff State of Uttar Pradesh is that  the land belonged to the State and the Municipality had no power to lease the land.      The Trial Court found that the land in dispute does not belong to  the plaintiff  Government but  was a "street" and belonged to  the Municipal  Board, Gorakhpur.  It also found that though  no lease  deed was executed by the Municipality as the  defendant took  possession under  the  contract  and admittedly built  up a house, the plaintiff is estopped from praying for  demolition and  for possession of the building. On appeal, the High Court accepted the findings of the Trial Court that  the disputed  land is adjoining Patri but as two Judges took  the view  that land  in dispute  vested in  the Municipality under S. 116 (g) of the Uttar Pradesh Municipal Act, it  was the  only competent  authority to  sanction the lease in respect of the land and the State Government had no right or interest left in the land and could not, therefore, challenge the  validity of  the transaction  entered into by

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the Board  in exercise  of the  power  conferred  under  the Municipalities Act.  As a  result of  the finding  that  the State had  no right  to the  property, it  was held that the Government was  not entitled  to challenge the lease granted by the  Municipal Board.  In this view, the appeal preferred by the State was dismissed.      It may  be noted  that the suit filed by the respondent against the  municipality  for  injunction  restraining  the Municipal Board  from demolishing  or interfering  with  the constructions made  by him  was decreed  in O.S. No. 86/1948 and that  decree has  become final. In the present suit, the municipality is  not a party. Therefore, the contention that the municipality  had not  leased the site to the respondent by a  document as  required by Municipal Act, would be of no avail. Equally,  the plea  that it acted beyond the scope of its authority,  is not  available to  the municipality.  The plea of  the State  taken before  the High Court, and before us, by  Mr. Dixit learned counsel for the appellant, is that the State  is the  owner of the property inspite of the fact it had  vested in  the municipality  as a  "street" under S. 116(g) of  the Act.  It was submitted that when the property is put  to a  different use, it is open to the Government to assert its title and require anyone in illegal possession of the property  to vacate.  There is not much dispute that the property belonged  to the State before the Municipal Act was passed. The  High Court  has found  that the  State was  the owner of  the property till the Municipal Act was passed and this finding was not challenged before us. The only point on which the State lost the suit before the High Court was that after the passing 1100 of the  Uttar Pradesh  Municipal Act, the property vested in the Municipality  and the  State ceased to be the owner and, therefore,  cannot   maintain  the  suit  for  evicting  the respondent.      The Municipalities in various States were created under the respective  Municipalities Acts,  in order to facilitate the efficient  administration of  the Municipal areas and to provide lighting, watering and maintaining of public streets and places. The duties of the Municipal Boards are specified in S.7  of the U. P. Municipalities Act. Under S. 118 of the Act, the  Municipal Board  is empowered to manage or control any property  entrusted to  its management  and control. The vesting of the property, in the Municipality is under S. 116 of the  Act. S.  116 provides  that subject  to any  special reservation made  by the  State Government,  all property of the nature specified in this section and situated within the Municipality shall  vest in  and belong  to the  Board,  and shall, with  all property  which may  become vested  in  the Board, be  under  its  direction,  management  and  control. Cl.(g) relates to vesting of streets and is as follows :-           "All public  streets and the pavements, stones and      other materials  thereof, and also all trees erections,      materials  implements   and  things   existing  or   on      appertaining to such streets". It may  be noted  that while under cl.(f) of S.116 all lands and  other   property  transferred   to  the  board  by  the Government by  gift, purchase  or otherwise for local public purposes vest in the Municipality, under cl.(g), the streets vest only  qua streets and not as absolute property with the Municipality. The word ‘street’ is defined under S.2 (23) as follows :-           Street means  any  road,  bridge,  foot-way,  lane      square, court, alley or passage which the public or any      portion of  the public,  has right  to pass  along, and

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    includes, on either side, the drains or gutters and the      land  upto   the  defined   boundary  of  any  abutting      property, notwithstanding the projection over such land      of any verandah or other superstructure". It has  been found that the property in dispute is Patri and is a  land which  is within  the  defined  boundary  of  the property abutting  into  the  road.  Thus  the  property  in question falls  within the  definition of the word ‘street’. The question  as to the nature of the right that vest in the Municipality  under   S.  116(g)   of  the   Uttar   Pradesh Municipalities Act will have to be considered. This Court in Municipal 1101 Board. Mangalur  v. Sri  Mahadeoji Maharaj,  had to consider the nature of the right that vested in the Municipality over the  streets,   Subba  Rao,   J.  (as  he  then  was)  after considering the decisions of the English Courts and the High Courts, summed up the law on this subject as follows :-           The  inference   that  the  side  lands  are  also      included in  the public way is drawn easily as the said      lands  are  between  the  metal  road  and  the  drains      admittedly maintained  by the  Municipal Board.  Such a      public pathway  vests  in  the  municipality,  but  the      Municipality  does   not  own  the  soil.  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.  Subject  to  the  rights  of  the      Municipality and  the public  to pass and repass on the      highway, the  owner of  the soil in general remains the      occupier of  it and,  therefore,  he  can  maintain  an      action for  trespass against  any member  of the public      who acts in excess of his rights." After  referring   to  S.116(g)   of   the   Uttar   Pradesh Municipalities Act,  under which  a public street vests in a Municipality, the  learned Judge referred to a decision of a Division Bench of the Madras High Court in S. Sundaram Ayyar v. The  Municipal Council  of Madura  and the  Secretary  of State for  India in  Council where  the scope of the vesting under the Madras District Municipalities Act was dealt with. The learned  Judge extracted  the head  note from the Madras decision observing  that it  brought out  the  gist  of  the decision. The head note runs as follows :-      "When a  street is  vested in a Municipal Council, such      vesting does  not transfer  to the  Municipal authority      the rights  of the owner in the site or soil over which      the street  exists. It  does not  own the soil from the      centre of  the earth  usque ad  caelum, 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." 1102 The view  taken by  the Division  Bench of  the Madras  High Court was  that though  the street  vested in  the Municipal Council, it does not transfer to the Municipality the rights of the  owner in  the site  or soil  over which  the  street exists. The  question has  been dealt with at some detail in the Madras  decision and  as it  has been  approved by  this

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Court, it  may be usefully referred to. The High Court while observing that  if the  land itself had been acquired by the Municipality, either  by purchase or otherwise and roads and drains formed  thereon, the Municipality would have been the owner of the land but if the street or highway over the land was dedicated  to the  public either  by the State or by the owners of  the land  adjoining  the  highway  will  continue vested, subject  only to  the burden  of the highway, in the State or the respective owners of the land on either side of the highway  ad medium filum, or in any other person who may have dedicated  the street to the public as the case may be. The Court  after pointing  out that the Madras Municipal Act was a modelled after the English Metropolis Local Management Act, 1855 referred to the English cases which dealt with the vesting of the street in the Municipality and observed :-           "The conclusion  to be drawn from the English case      law is  that what  is vested in urban authorities under      statutes similar to the District Municipalities Act, is      not the  land over  which the street is formed, but the      street qua  street and  that the property in the street      thus vested  in a  Municipal  Council  is  not  general      property or  a species  of property known to the Common      Law, but  a special  property created  by  statute  and      vested in  a corporate  body for  public purposes, that      such property as it has in the street continues only so      long as  the street  is a  highway by being excluded by      notification of  Government under  section 23 of Act IV      of 1884  or by being legally stopped up or diverted, or      by the  operation of  the law limitation (assuming that      by such operation the highway can be extinguished), the      interest of the corporate body determines." It is,  therefore, clear  that when  a street ceases to be a highway by  its  being  diverted  to  some  other  use,  the interest of  the corporate  body determines. After referring to the  decisions of  the High Courts in India, it expressed its concurrence  with  the  decisions  in  Chairman  of  the Naihati Municipality  v. Kishori  Lal Goswami,  Madhu Sudhun Kunda v.  Pramode Nath Roy and Nihal Chand v. Azmat Ali Khan and concluded  that the  nature or  the right that vested in the 1103 Municipality as  regards public streets there is no disposal by the Indian Legislature of any land or hereditament vested in the  Government. What is vested in the Municipality under S. 116(g)  is the  street qua street and if the Municipality put the  street to any other user than that for which it was intended, the  State as  its owner, is entitled to intervene and maintain  an action  and to  get any  person in  illegal occupation evicted.  We accept  the contention of Mr. Dixit, learned counsel  for the State of U.P. that the State is the owner and  in the  circumstances of  the  case  entitled  to maintain action  for eviction  of the  respondent. The  view taken by the High Court is erroneous. The result is that the appeal by  the State is allowed with costs and there will be decree in favour of the plaintiff as prayed for. S.R.                                         Appeal allowed. 1104