K. Gourikutty Amma v. State of Travancore-Cochin — 1999 DIGILAW 2346 (MAD)

Order 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. Exhibit A, dated 4th May, 1951, to make a garden 6 feet wide around it. Proceedings under the Land Conservancy Act were taken against the petitioner by the second 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 first respondent is the State of Travancore-Cochin, the second respondent is the Tahsildar, Trivandrum, the third respondent is Shri K. Ananthan Pillai, Commissioner of the Corporation and the fourth 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 second respondent are bad for non-compliance with the provisions of the Land Conservancy Act, and (3) That the action taken against the petitioner was mala fide. 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. On behalf of respondents 1, 2 and 4, the second respondent has filed a counter-affidavit denying the averments in the petitioner’s affidavit. The third respondent has also filed a counter-affidavit. The facts which led to the filing of this petition may be briefly stated. On 14th May, 1954, the Commissioner of the Corporation sent a notice Exhibit 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 14th May, 1954, the Commissioner of the Corporation sent a notice Exhibit 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 second respondent against Raghavan Pillai who was actually conducting trade at the bunk and the petitioner. Raghavan Pillai was the first defendant and the petitioner the second defendant. On 6th April, 1955, the second respondent sent a notice Exhibit 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 second respondent and after obtaining an adjournment filed a petition on 18th April, 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 second respondent. She also prayed that the land be given to her on lease. The second respondent passed an order, dated 6th May, 1955, which reads as follows: “The first defendant is not found guilty and he is therefore exonerated. The second defendant is guilty under section 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 Public Works Department”. A notice Exhibit D communicating the decision was sent to the petitioner on 6th May, 1955. She paid a portion of the fine and other dues on 13th September, 1955. 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. She paid a portion of the fine and other dues on 13th September, 1955. 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 22nd November, 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 30th November, 1955, intimating that she would be evicted at 9 A.M. on 1st December, 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 1st December, 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 12th December, 1955 to quash these proceedings. The first point urged on behalf of the petitioner is that the second 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. The original petition was filed on 12th December, 1955 to quash these proceedings. The first point urged on behalf of the petitioner is that the second 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 section 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, and 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 New Delhi1, and it is therefore unnecessary to refer to those decisions 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 any title or it may vest any 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 sections 45-49 and 54-54(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 lot necessarily mean that ownership has passed to any of them”. High Courts in India have also laid down the law in the same terms. High Courts in India have also laid down the law in the same terms. In Sundaram Ayyar v. Municipal Council of Madura2, 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 Calcutta3, 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. Tahilia Ram and another4. 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 the 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 had jurisdiction to take action under the Land Conservancy Act. The second point is that the provisions of the Land Conservancy Act were not complied with by the second respondent. It was argued that the first notice Exhibit A issued by the second 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. 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 second 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 Act she had a right of appeal from the second 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 Exhibit D regarding the decision did not contain a demand for surrender of possession. The second 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 second 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 section 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. The last point urged was that action taken against the petitioner was mala fide. I do not find any defect in the eviction proceedings. The last point urged was that action taken against the petitioner was mala fide. It is stated in the petitioner’s affidavit that the petitioner’s husband who is a member of the City Corporation strongly criticised the third respondent at meetings of the Corporation and that he was therefore actuated by malice. Eviction proceedings Were taken in this case not by the third respondent but the second respondent. The petitioner has no case that the second respondent was actuated by malice against her or her husband. The decision of the second respondent was drat 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 second respondent was acting in exercise of a legal right and no question of mala fides can arise. 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. M.C.M. ----- Petition dismissed.