K. Gourikutty Amma v. State of Travancore-Cochin — 1957 DIGILAW 330 (KER)

Judgment :- 1. The petitioner was permitted by the Trivandrum City Corporation to erect a Bunk near the Central Station, Trivandrum. She was later permitted by a memo Ext. A dated 4-5-1951 to make a garden 6 feet wide around it. Proceedings under the Land Conservancy Act were taken against the petitioner by the 2nd Respondent the Tahsildar of Trivandrum and these culminated in the demolition and removal of the Bunk and eviction of the petitioner from the site. These proceedings are sought to be quashed by this Original Petition. The 1st Respondent is the State of Travancore-Cochin, the 2nd Respondent is the Tahsildar, Trivandrum, the 3rd Respondent is Shri. K. Ananthan Pillai, Commissioner of the Corporation & the 4th Respondent is the District Collector, Trivandrum. The grounds relied on by the petitioner are: (1) That ownership of the site belonged to the Corporation and not the Government. (2) That even if the site belonged to the Government the proceedings taken by the 2nd Respondent are bad for non-compliance with the provisions of the Land Conservancy Art, and (3) That the action taken against the petitioner was malafide. The prayers in the petition are for the issue of a writ of certiorari or other appropriate directions to the Respondents quashing all proceedings taken for evicting the petitioner from the above-said plot by demolishing and removing the shop building and other structures put up by her and also for issuing a writ of prohibition or other appropriate directions restraining the Respondents from interfering with her possession and enjoyment of the above-said plot by putting up necessary structures in the place of the shop building illegally demolished and removed by the Respondents. 2. On behalf of Respondents 1, 2 and 4 the 2nd Respondent has filed a counter-affidavit denying the averments in the petitioner's affidavit. The 3rd Respondent has also filed a counter-affidavit. 3. The facts which led to the filing of this petition may be briefly stated. On 14-5-1954 the Commissioner of the Corporation sent a notice Ext. B to the petitioner directing her to remove the bunk within two months. The notice further stated that on failure to do so, action under the City Municipal Act would be taken. No further action appears to have been taken by the Corporation. On 14-5-1954 the Commissioner of the Corporation sent a notice Ext. B to the petitioner directing her to remove the bunk within two months. The notice further stated that on failure to do so, action under the City Municipal Act would be taken. No further action appears to have been taken by the Corporation. However a case under the Land Conservancy Act for unauthorised entry into Government land was taken by the 2nd Respondent against Raghavan Pillai who was actually conducting trade at the bunk and the petitioner, Raghavan Pillai was the 1st defendant and the petitioner the 2nd defendant. On 6-4-1955, the 2nd Respondent sent a notice Ext. C to the petitioner informing her that she had trespassed on Government Poramboke land and calling upon her to show cause why action under the Land Conservancy Act should not be taken. The petitioner appeared before the 2nd Respondent and after obtaining an adjournment filed a petition on 18-4-1955 stating that her entry into the land was with the permission of the City Corporation, that she was not then aware that the land belonged to Government and that she was willing to pay such fine and assessment as would be imposed by the 2nd Respondent. She also prayed that the land be given to her on lease. The 2nd Respondent passed an order dated 6-5-1955 which reads as follows: "The 1st defendant is not found guilty and he is therefore exonerated. The 2nd defendant is guilty under S.6 of the Act and she is fined Rs. 25. Prohibitory assessment at double the rate and back arrears for the period of occupation will be realised. Take steps for the lease of the land in consultation with the P. W. D.". A notice Ext. D communicating the decision was sent to the petitioner on 6-5-1955. She paid a portion of the fine and other dues on 13-9-55. In the meanwhile the Public Works Department and the Director of State Transport wrote to the Tahsildar urging removal of the Bunk as it caused obstruction to traffic. The question of granting a lease was therefore dropped and the Tahsildar commenced proceedings for eviction. It is seen from the records submitted by counsel for Respondents 1, 2 and 4 that a notice was issued to the petitioner on 22-11-1955 asking her to vacate the site within 7 days. The question of granting a lease was therefore dropped and the Tahsildar commenced proceedings for eviction. It is seen from the records submitted by counsel for Respondents 1, 2 and 4 that a notice was issued to the petitioner on 22-11-1955 asking her to vacate the site within 7 days. The petitioner denies receipt of the said notice but it is seen from the records that she refused to accept it and that it was therefore affixed to the building where she was residing. As the notice was not complied with another notice appears to have been sent to her on 30-11-1955 intimating that she would be evicted at 9 A. M. on 1-12-1955 This notice was also served by affixture as the petitioner refused to accept the same. Receipt of this notice is also denied by the petitioner. On 1-12-1955 another notice was issued to Raghavan Pillai who was in charge of the Bunk informing him that eviction would take place at 9 A.M. that day. This appears to have been served at 9 A.M. by affixing a copy to the Bunk as Raghavan Pillai refused to accept it. The actual eviction took place at 9 A. M. An inventory of the articles was prepared and the Bunk was demolished and removed from the site. The original petition was filed on 12-12-1955 to quash these proceedings. 4. The first point urged on behalf of the petitioner is that the 2nd Respondent had no jurisdiction to take proceedings under the Land Conservancy Act as the land in question belonged to the City Corporation and not the Government. This argument is based on S.205 of the Trivandrum City Municipal Act, IV of 1116 which provides as follows. "All public streets in the City not reserved under the control of Our Government, & the side drains, pavements, stones and other materials thereof, and all erections, materials, implements and other things provided for such "streets and all trees, not being private property, growing thereon or by the side there shall vest in the Corporation" The petitioner's case is that the site in question is part of a public street which has not been reserved under the control of the Government and that ownership of the street vested in the Corporation. Lengthy arguments were addressed on the interpretation of the words "shall vest in the Corporation" All the English decisions cited before me were considered by the Supreme Court in The Fruit and Vegetable Merchants' Union v. Delhi Improvement Trust (A. I. R.1957 S. C. 344) and it is therefore unnecessary to refer to those derisions in this order. After pointing out the use of the word "vest" in different statutes it was held: "It would thus appear that the word 'vest' has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title or it may vest in possession or it may vest in a limited sense as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly S.45 49 and 54 and 54 A when they speak of a certain building or street or square or other land vesting in a Municipality or other local body or in a trust do not necessarily mean that ownership has passed to any of them". High Courts in India have also laid down the law in the same terms. In Sundaram Ayyar v. Municipal Council of Madura (25 Mad. 635) Bhashyam Ayyangar, J. after an elaborate discussion of English precedents 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 a statute and vested in a corporate body for public purpose". Gunendra Mohan Ghosh v. The Corporation of Calcutta (44 Cal. 689) is another decision in which the same view was held. It was pointed out that the dictum laid down by Bhashyam Ayyangar J.; was in conformity with what has been recognised as settled law in England and America. The High Court of Lahore followed Bhashyam Ayyangar, J's view in Municipal Committee of Multan v. Tahlia Ram and another (A.I.R.1923 Lah. It was pointed out that the dictum laid down by Bhashyam Ayyangar J.; was in conformity with what has been recognised as settled law in England and America. The High Court of Lahore followed Bhashyam Ayyangar, J's view in Municipal Committee of Multan v. Tahlia Ram and another (A.I.R.1923 Lah. 272) It may also be pointed out that the petitioner did not raise such a point before the Tahsildar. She accepted the position that the site belonged to the Government and expressed her willingness to pay such penalty as may be imposed for unauthorised occupation of the site. She further prayed that the site be leased to her. Following the decisions cited above I hold that vesting of the street vested in the Corporation such property and such property only as is necessary for the control, protection and maintenance of the street as a street and that the Tahsildar has jurisdiction to take action under the Land Conservancy Act. 5. The second point is that the provisions of the Land Conservancy Act were not complied with by the 2nd Respondent. It was argued that the first notice Ext. A issued by the 2nd Respondent was defective inasmuch as it was sent under the repealed Land Conservancy Act IV of 1091 and not under the Travancore-Cochin Land Conservancy Act XIX of 1951 which was in force on the date of initiation of the proceedings. I do not consider this a fatal defect. The relevant provisions in the two Acts were similar and the notice gave a correct statement of the nature of the act committed by the petitioner and the action proposed to be taken against her. That the petitioner was not misled by the reference to the repealed Act is clear from the statement filed by her before the 2nd Respondent. She did not point out in the written statement filed by her this defect in the notice but on the other hand admitted the charge against her and expressed willingness to comply with such order as may be passed. Under the Land Conservancy Art she had a right of appeal from the 2nd Respondent's decision but she did not choose to exercise that either. She even complied with the order by paying a portion of the fine and other dues. In these circumstances the alleged defect is not substantial. Another ground relied on was that the notice Ext. Under the Land Conservancy Art she had a right of appeal from the 2nd Respondent's decision but she did not choose to exercise that either. She even complied with the order by paying a portion of the fine and other dues. In these circumstances the alleged defect is not substantial. Another ground relied on was that the notice Ext. D regarding the decision did not contain a demand for surrender of possession. The 2nd Respondent's order no doubt provided for taking steps for leasing the land in consultation with the Public Works Department. It was only after such consultation and the receipt of a communication from the Director of State Transport that the 2nd Respondent decided to evict the petitioner. Notice of such eviction was issued and was served by affixture. Eviction was effected only after the expiry of the period mentioned in the notice. This ground also must therefore fail. It was also argued on behalf of the petitioner that S.10 of the Travancore-Cochin Land Conservancy Act did not contemplate eviction with the aid of the Police and that what was provided was that a notice to vacate within a reasonable time should be given and that in case of obstruction, the obstructor should be sent to the civil prison. Notice to vacate within 7 days was given to the petitioner and it does not appear that there was any obstruction at the time of eviction so that there was no need to send anybody to the civil prison. I do not find any defect in the eviction proceedings. 6. The last point urged was that action taken against the petitioner was malafide. It is stated in the petitioner's affidavit that the petitioner's husband who is a member of the City Corporation strongly criticised the 3rd Respondent at meetings of the Corporation and that he was therefore actuated by malice. Eviction proceedings were taken in this case not by the 3rd Respondent but the 2nd Respondent. The petitioner has no case that the 2nd Respondent was actuated by malice against her or her husband The decision of the 2nd Respondent was that there was unauthorised entry into Government land and the decision was not only not questioned but was acquiesced in by the petitioner. The finding regarding unauthorised entry justified the eviction proceedings. The petitioner has no case that the 2nd Respondent was actuated by malice against her or her husband The decision of the 2nd Respondent was that there was unauthorised entry into Government land and the decision was not only not questioned but was acquiesced in by the petitioner. The finding regarding unauthorised entry justified the eviction proceedings. In effecting eviction the 2nd Respondent was acting in exercise of a legal right and no question of mala-fides can arise. 7. It follows from the conclusions reached above that the petitioner is not entitled to any relief. The original petition is therefore dismissed. The petitioner will pay the costs of respondents 1 to 4 including Advocate's fees of Rs. 100. Only one set of costs is allowed for Respondents 1, 2 and 4. Dismissed.