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1955 DIGILAW 10 (KER)

Philip v. State

1955-01-07

KOSHI, M.S.MENON

body1955
Judgment :- 1. This is an appeal from the order of a Single Judge of this Court dismissing O.P. No. 6 of 1951. The appellant's prayer in that petition was for an appropriate writ or direction quashing the proceedings in the matter of the closing of a road within the limits of the Corporation of Trivandrum under S. 207 of the Trivandrum City Municipal Act, 1116, which reads as follows: "(1) The Commissioner may, subject always to such sanction as may be required under Chap.4, (a) lay out and make new streets; (b) construct bridges and sub-ways; (c) turn, divert, or, with the special sanction of the Council and Our Government, permanently close any public street or part thereof; and (d) widen, open, extend or otherwise improve any public street. (2) Reasonable compensation shall be paid to the owners and occupiers of any land or buildings which are acquired for or affected by any such purposes. (3) In determining such compensation allowance shall be made for any benefit accruing to the owner or occupier concerned from the construction or improvement made by the Commissioner". 2. It is agreed that the road concerned is a public street and that what is intended is a permanent closure of that street. The only point pressed by the learned counsel for the appellant and the only point that arises for consideration is whether the sanction of the Council necessary under S.207(1)(c) of the Act has been obtained or not. 3. The Commissioner submitted a note to the Municipality on 11.12.1124 (Ext. A) which reads as follows: "Government in their G.O. ROC. No. 7018/49/Edn. dated the 19th July 1949 have forwarded copy of letter ROC. 6481/45 dated the 22nd June 1949 from the University Registrar, requesting the remarks of the Corporation within a week, in regard to the closing of the road behind the Women's College (southern portion) in connection with the construction of the new Hostel Extension buildings. The road referred to joins the road in front of the Ross House with the Residency - Althara junction road along the back side of the College premises. The University authorities have acquired some properties to the west of the said road to be added on to the premises of the College in connection with the construction of an extension of the Hostel buildings. The University authorities have acquired some properties to the west of the said road to be added on to the premises of the College in connection with the construction of an extension of the Hostel buildings. It is reported that the southern end of the said road separates the newly acquired lands from the College premises and if it is not closed and added on to the newly acquired lands, it may cause difficulties in putting up the proposed building and will also be a hindrance to the convenient working of the hostel. Under S. 207 of the Act, the Commissioner may subject always to such sanction as may be required under Chap.4(c) turn, direct or with the special sanction of the Council and Our Government permanently close any public street or part thereof. The place was inspected. It is necessary in the circumstances stated by the Registrar, to close the southern portion of the road. This may be sanctioned under S. 207 of the Act and there is no objection in doing this. The Chief Engineer has also expressed the same view". and the minutes of the resolution of the Council on the subject, No.V(4), dated 11.12.1124 (Ext. B) is in the following terms: "Read Commissioner's note re: G.O. ROC. No. 7018/49/Edn. dated 19.7.1949, forwarding copy of letter ROC No. 6481/45 dated 22.6.1949 from the University Registrar regarding closing up of the road behind the Women's College. Mr. B.S. Sankaran Nair moved the following resolution. "Resolved that the Commissioner be requested to arrange for a local inspection of the road along with the Chairman of the W.S. Committee and the Divisional Councillor; "Resolved also that the Commissioner be authorised to send a suitable reply to Government after the above local inspection". Mr. V. Sreedharan Nair seconded the resolution. None opposed the resolution and the Mayor declared the resolution carried". There is a note made by the Commissioner on 19.12.1124 in Ext. B which states: "Inspected. The members are agreeable to the suggestion previously made. Send a reply to Government". and the reply to the Government dated 4.8.1949 (Ext. G) reads: "With reference to G.O. ROC. No. 7018/49/Edn. dated the 14th July 1949, forwarding copy of letter ROC No. 6481/45 dated 22.6.1949 from the University Registrar re: the acquisition of land for the Women's Hostel building. The members are agreeable to the suggestion previously made. Send a reply to Government". and the reply to the Government dated 4.8.1949 (Ext. G) reads: "With reference to G.O. ROC. No. 7018/49/Edn. dated the 14th July 1949, forwarding copy of letter ROC No. 6481/45 dated 22.6.1949 from the University Registrar re: the acquisition of land for the Women's Hostel building. I have the honour to state that the Corporation Council has no objection to close the portion of the road referred to in the Registrar's letter. I request that Government may sanction the closure of the road permanently under S. 207 of the City Municipal Act IV of 1116". 3. In pursuance of the reply the Government passed the following order on 22.12.1949 (Ext. D): "Under sub-s.1(c) of S. 207 of the City Municipal Act. 1116, sanction is accorded to the permanent closing of the lane on the eastern side of the acquired lands and west of the Women's College premises at the southern end and at the point where the acquisition laundry on the North touches the road behind the Women's College premises". This order was read at the meeting of the Council on 21.1.1950 and resolution No. IV(2) - "Resolved that the letter be recorded" - (Ext. E) was passed thereafter. 4. It is impossible to consider the resolution of 11.12.1124 (Ext. B) as the granting of a sanction by the Council. The resolution can at best be considered only as a delegation of the powers of the Council under S.207(c) to a committee thereof consisting of the Chairman of the W.S. Committee and the Divisional Councillor. R.11(1) of Schedule I to the Act indicates the purposes for which committees may be appointed: "The Council may appoint from among its own number committees for the purpose of inquiring into and reporting on any matter which is reserved by this Act for the decision of the Council". The appointment of a committee not for the purpose of inquiring into and reporting on the matter but for taking a final decision and communicating the same to the Government is a delegation that is beyond the powers of the Council and any action taken on the basis of such a delegation should be considered as clearly infructuous. It is equally impossible to construe the resolution of 21.1.1950 (Ext. It is equally impossible to construe the resolution of 21.1.1950 (Ext. E): "that the letter be recorded" as a ratification of the action already taken even if we are prepared to assume that a ratification can do duty for the special sanction necessary under S.207(1)(c) of the Act. 5. It follows that the permanent closing of the public street to which the petitioner objects is without the special sanction of the Council as provided in S. 207 and that this appeal has to be allowed. A writ will issue quashing the proceedings taken on the assumption that the special sanction of the Council has been given and directing that no such action shall be taken in the future on the basis of such an assumption. It is of course unnecessary to state this order will not in any way preclude fresh action in the matter of permanently closing the street after due compliance with the provisions of S.207(1)(c) of the Travancore City Municipal Act, 1116. 6. There will be no order as to costs in this appeal or in O.P. No. 6 of 1951. Allowed.