Case: State of Uttar Pradesh Vs. Ata Mohd

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 dire cting 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 thethe plaint the State of U. P. submitted that plot No. 227 is Nazrul land and is the property of the 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 plaintiffs 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 Alin agar 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 ejectthe pleadings, it is clear that the disputed land adjoins Patri of the road running from Golgarh to Alin agar. It is also admitted 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 theTrial 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 estopp ed 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 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.

Reasoning: 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 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 theMunicipalities in various States were cr eated 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 andview taken by the Division Bench of the Madras High Court was t hat 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 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 andconclusion to be drawn from the English case law is t hat 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 Mu nicipal 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 bodyis, 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 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.