The case of the petitioner as projected in this Court is that he has been carrying on his business on the land which admittedly belongs to the Municipal Corporation, Gwalior. Its dimension, as noticed above, is 2 ft. x 23 ft. His case is that he is paying 'Rent' and as such relationship between him and the Corporation is that of a landlord and tenant and he cannot be evicted in summary manner. The contention cannot be accepted. In the matter of disposal of Corporation property the provisions which are applicable are contained in Section 80 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred as the Act). The mode of executing contracts is provided in Sections 73 and 74 of the Act. Section 80 of the Act contains a legislature mandate to not to permit encroachment on streets, Nazul lands, drains, public places, irrigation channels etc. On a question being put to the counsel for "the petitioner, Shri Roman fairly conceded that his client is not in possession of any written instrument in terms of Section 73 or 74 or Section 80 of the Act. Under these circumstances, even if he was paying some amount which has been shown as 'rent' by the Corporation, it cannot confer the status of a tenant on the petitioner plain-tiff. This question was considered by the Supreme Court in H.S. Rikhy v. New Delhi Municipality, MANU/SC/0340/1961 : AIR 1962 SC 554. The Apex Court observed as under (at p. 558 of AIR) :--
"6. The use of the word 'rent' is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the general sense, without importing the legal significance aforesaid, of compensation for use and occupation. 'Rent' in the legal sense can only be reserved on a demise of Immovable property. Reference may be made in this connection to paragraphs 1193 and 1194 of Halsbury's Laws of England (Third Edition, Vol. 23) at pages 536-537. Hence the use of term 'rent' cannot preclude the landlord from pleading that there was no relationship of landlord and tenant. The question must, therefore, depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant."
Further the question as to whether relationship of landlord and tenant can be brought into existence orally was also examined in the above case. The observations made by the Supreme Court in this regard are found in para 8 and may be noticed as under (MANU/SC/0340/1961: AIR 1962 SC 554 at 559) :--
"8. Now, in" order that the transfer of the property in question should be binding on the' Committee, it was essential that it should have been made by an instrument in writing executed by the President or the vice-President and at least two other members of the Committee, and the execution by them should have been effected by the Secretary. If these conditions are not fulfilled, the contract of transfer shall not be binding on the Committee. But it has been contended on behalf of the appellants that the non-compliance with the provisions aforesaid of Section 47, would not render the contract of transfer of property void but only avoidable. In other words, where the acting's of the parties have given effect to the transactions, as in the instant cases, by delivery of possession of the property by the Committee and payment of rent by the appellants, the absence of formalities would not" render the transactions of no legal effect. But it has to be noted that it was not contended on behalf of the appellants that the provisions of Section 47(3) of the Municipal Act are not mandatory and are merely directory. Such an argument was not and could not have been advanced because it is settled law that the provisions of a Statute in those peremptory terms could not but be construed as mandatory."
On the basis of the law laid down by the Supreme Court of India, I am of the view that merely because the Municipal Corporation has been issuing some receipts in which payment is shown as rent would not confer on the plaintiff/petitioner a status of a tenant.
Madhya Pradesh High Court
Banarasidas And Anr. vs Ramkrishna And Ors. on 24 May, 1994
Equivalent citations: AIR 1995 MP 147
1. A suit bearing CO.S. No. 7A of 1994 is pending in the Court of Vllth Civil Judge Class 11, Gwalior. In this suit an application under Order 39, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) was filed. This was to the effect that the plaintiff may not be dispossessed from a piece of land admeasuring 2 ft. x 23 ft. This piece of land is located at a place known as Jiyajee Chowk in Gwalior. It was alleged that the Municipal Corporation Gwalior is threatening to demolish the structure which is admittedly raised on a drain by the side of a public street. There is some dispute regarding the nature of the structure so raised. According to Shri Roman, learned counsel for the petitioner, this structure was of permanent, nature. This position is disputed by the' counsel for the Municipal Corporation and also by the respondents-defendants Nos. 1 to 5.
2. In the application under Order 39, Rule 1 of the Code interim injunction to the effect that the plaintiff shall not be dispossessed or the structure raised by him shall not be removed was granted by the trial Court. This injunction order was however vacated on 18th April 1994. An appeal was preferred against this order and the IVth Additional Judge to the Court of District Judge, Gwalior, who vide his order dated 18-4-1994 dismissed the appeal in limine without calling for the records. The present revision petition has now been filed in this Court challenging the orders of the courts below.
3. It may be seen that the position as it obtains today is that the structure raised by the plaintiff/petitioner no longer exists. This was demolished on 19th April, 1994, that is, immediately after the trial Court vacated the injunction order. The petitioner/plaintiff accordingly submits that he is entitled to restoration and for this he invokes the principles applicable to matters arising under Section 144 of the Code.
4. All the parties are duly represented.
5. The case of the petitioner as projected in this Court is that he has been carrying on his business on the land which admittedly belongs to the Municipal Corporation, Gwalior. Its dimension, as noticed above, is 2 ft. x 23 ft. His case is that he is paying 'Rent'and as such relationship between him and the Corporation is that of a landlord and tenant and he cannot be evicted in summary manner. The contention cannot be accepted. In the matter of disposal of Corporation property the provisions which are applicable are contained in Section 80 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred as the Act). The mode of executing contracts is provided in Sections 73 and 74 of the Act. Section 80 of the Act contains a legislature mandate to not to permit encroachment on streets, Nazul lands, drains, public places, irrigation channels etc. On a question being put to the counsel for "the petitioner, Shri Roman fairly conceded that his client is not in possession of any written instrument in terms of Section 73 or 74 or Section 80 of the Act. Under these circumstances, even if he was paying some amount which has been shown as 'rent' by the Corporation, it cannot confer the status of a tenant on the petitioner plain-tiff. This question was considered by the Supreme Court in H.S. Rikhy v. New Delhi Municipality, AIR 1962 SC 554. The Apex Court observed as under (at p. 558 of AIR) :--
"6. The use of the word 'rent' is not conclusive of the matter. It may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the general sense, without importing the legal significance aforesaid, of compensation for use and occupation. 'Rent' in the legal sense can only be reserved on a demise of immoveable property. Reference may be made in this connection to paragraphs 1193 and 1194 of Halsbury's Laws of England (Third Edition, Vol. 23) at pages 536-537. Hence the use of term 'rent' cannot preclude the landlord from pleading that there was no relationship of landlord and tenant. The question must, therefore, depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant."
Further the question as to whether relationship of landlord and tenant can be brought into existence orally was also examined in the above case. The observations made by the Supreme Court in this regard are found in para 8 and may be noticed as under (AIR 1962 SC 554 at 559) :--
"8. Now, in" order that the transfer of the property in question should be binding on the' Committee, it was essential that it should have been made by an instrument in writing executed by the President or the vice-President and at least two other members of the Committee, and the execution by them should have been effected by the Secretary. If these conditions are not fulfilled, the contract of transfer shall not be binding on the Committee. But it has been contended on behalf of the appellants that the non-compliance with the provisions aforesaid of Section 47, would not render the contract of transfer of property void but only avoidable. In other words, where the acting's of the parties have given effect to the transactions, as in the instant cases, by delivery of possession of the property by the Committee and payment of rent by the appellants, the absence of formalities would not" render the transactions of no legal effect. But it has to be noted that it was not contended on behalf of the appellants that the provisions of Section 47(3) of the Municipal Act are not mandatory and are merely directory. Such an argument was not and could not have been advanced because it is settled law that the provisions of a Statute in those peremptory terms could not but be construed as mandatory."
On the basis of the law laid down by the Supreme Court of India, I am of the view that merely because the Municipal Corporation has been issuing some receipts in which payment is shown as rent would not confer on the plaintiff/petitioner a status of a tenant.
6A. The question as to whether plaintiff/ petitioner can carry on business by raising some construction on a drain abutting a public street may be examined. It is settled proposition of law that public streets are meant to be used by public and Corporation has no power to let out these in a manner which cause obstacles in the enjoyment or movement of public in any manner.
7. This question was considered by the Supreme Court in the case of Municipal Board Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147. The Supreme Court was of the view that Municipal Corporation cannot permit structure to be raised in a manner which may cause hindrances to the public at large. The Supreme Court also took note of the fact that drains, pavements adjoining public streets are part of public steets. The Supreme Court further took note of English and Indian decisions on the subject, as under (at pp. 1148-49 of AIR):--
"7. At this stage it is necessary to notice briefly the relevant aspect of the law of highways. In "Pratt and Mackenzies Law of Highways", 20th Edn., at p. 4 it is stated :
"Subject to the right of the, public to pass and repass on the highway, the owner of the soil in general remains the occupier of it, and as such may maintain trespass against any member of the public who acts in excess of his right."
In Halsbury's Laws of England, 3rd Edn. Vol. 19, at p. 49, rules of presumption and proof of dedication are stated thus:
"The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but no conclusive evidence) from which a Court or Jury may infer a dedication by the owner."
The learned author proceeds to observe at p.
>55;
"A dedication may also be inferred when a highway authority has used a strip of land adjoining an admitted highway for the deposit of stones or by cutting grips, or has, as of right and without permission, piped in and levelled the site of a road-side ditch."
In Harvey v. Truro Rural Council(1903) 2 Ch 638 at pp. 643-644, Joyce, J., makes the following interesting observations which are relevant to the present enquiry:
"In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the entire of it as the highway, and are not confined to the part which may be mettalled or kept in order for the more convenient use of carriages and foot-passengers."
Adverting to the open strips of land oh the sides of the road, the learned Judge observed :
"....... as Lord Tenterden observed in Rex v.
Wright (1832) 3 B & Ad. 681 (683) : 37 RR 520. "The space at the sides" (that is of the hard road) is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound:"
These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road. Suhrawardy, J., in Anukul Chandra v. Dacca Dt. Board, AIR 1928 Cal 485 at pp. 486, 487, after considering the relevant English decisions on the subject, summarized the English view thus :
"The expression 'road' or 'highway has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands."
The learned Judge applied the English view to the construction of the words "public street or road" in section 146A of the Limitation Act, and stated:
"I am of the opinion that "road" in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road."
So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri, ILR 37 All 9 at p. 11: AIR 1914 Ail 341, at p, 342, defined 'road' so as to include the lands. Therein it was observed:
"...... in our opinion all the ground, whether mettalled or not, over which the public had a right of way, is just as much the public road as the mettelled part. The Court would be entitled to draw the inference that any lave over which the public from time immemorial had been accustomed to travel was a public street, or road, and the mere fact that a special part of it was mettalled for the greater convenience of the traffic would not render the unmettalled portion on each side any the less a public road or street."
That a public street vests in a Municipality admits no doubt. Under Section 116(g) of the U.P. Municipalities Act, 1916 (U.P. Act II of 1916), "all-public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets" vest in and belong to the Municipal Board. A Division Bench of the Madras High Court in S. Sundaram Ayyar v. Municipal Council of Madras, (1962) ILR 25 Mad 635, dealt with the scope of such vesting under the Madras District Municipalities Act, 1884. The head-note therein brings out the gist of the decision, and it reads :
"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."
It was thereafter concluded as under (AIR 1965 SCI 147 at p. 1149):
"8. The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the purpose of maintenance of the road. In the case of pathyway used for a long time by the public, its topographical and permanent landmarks' and the manner and mode of its maintenance ususally indicate the extent of the use." .
"9. In the present case it is not disputed that the mettalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Munici-
pal 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 trespassars. 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 and action for trespass against any member of the public who acts in excess of his rights."
8. Not only pavements but verandahs in front of the shops are part of streets and public streets. Reference may be made to a decision given by the Supreme Court in the case of M/s. Gobind Pershad v. New Delhi Municipal Committee, AIR 1993 SC23I3. In this case verandahs in Connaught Circus in New Delhi were held to be part of public streets. In para 12 of the judgment it was observed as under:
"12. We see no ground to differ with the concurrent findings of the courts below and hold that the appellant has dedicated the Verandah in dispute to the public-use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of Section 3(13)(a) of the Act. The appellant has thus surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, veran-dah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner has no right at all times to prevent the public from using the same. When the owner of the property has, by his own volition permitted his property to be converted into" a "street", then he has no right to claim any compensation when the same property is made "public street" under Section 171(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control, the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the committee to step in and exercise its powers under Section 17(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street" for the better enjoyment of the public right in the said street. We hold that when a "street" is declared as "public street" the owner of the property comprising the said "street", has no right to claim compensation."
Thus not only pavements, verandahs, drains but all open spaces in front of shops which are accessible to vest in the Municipal Corporation. This vesting is for the purpose streets are used as streets and are accessible to public without any obstruction. The term 'vest' was considered by the Supreme Court in Fruit &; Vegetable Merchants Union v. The Delhi Improvement Trust AIR1957 SC 344. In para 16 it was said:
"16. In the case of Coverdale v. Charlton, (1878) 4 QBD 104 the Court of Appeal on a consideration of the provisions of the Public Health Act, 1875 (38 & 39 Vict C. 55) with particular reference to Section 149, has made the following observations at p. 116:
"What then is the meaning of the word 'vest' in this section? The legislature might have used the expression 'transferred' or 'conveyed', but they have used the word 'vest'. The meaning should like to put upon it is that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street."
It was further said :
"18. In the case of Finchley Electric Light Co. v. Finchley Urban District Council, (1903) I Ch 437, adverting to the provisions of Section 149 of the Public Health Act, 1975 (supra) Romer, L.J. has made the following Observations at pp. 443 and 444:
"Now that section has received by this time an authoritative interpretation by a long series of cases.- It was not by that' Section intended to vest in the urban authority what I may call the futl' rights in fee over the street, as if that street was owned by an ordinary owner in fee having the fullest rights both as to the soil below and as to the air above. It is settled that the section in question was only intended to vest in the urban authority so much of the actual soil of the street as might be necessary for the control, protection, and maintenance of the street as a highway for public use. For the proposition it is sufficient to refer to what was said by Lord Halsbury L.C. and by Lord Herschell in Tunbridge Wells Corporation v. Baird, (1896) AC 434 ....... That section has nothing to do with title; it is not considering a question of title. No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority....."
It was ultimately concluded in para 19 as under:
"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."
Thus even if the Municipal Corporation may not be the owner of the street in the legal sense it may yet vest in it.
9. The position of law is that the Municipal Corporation is under a statutory obligation to see that public streets are not encroached upon by anybody. In case encroachment is made, then the same should be got removed at the earliest possible. The Municipal Corporation cannot put up or permit putting up any structure which may interfere in the right of public to pass and repass on a public street, pavements etc. etc. It would be useful to refer to a decision of the Supreme Court inK. Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi, AIR 1974 SC2177 where the Supreme Court went to the extent of saying that "if under pretence of any authority which the law gives to the Municipality it goes beyond the line of its authority and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Court." In the above case directions were given by the Court to demolish an illegal construction of a Cinema building which was built in residential area. It was observed as under at page 218;
"27............. Where the Municipality acts in excess of the powers conferred by the Act or abuses these powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by any authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. King, (1899) 1 QB 444)."
"28. An illegal construction of a Cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in the residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash order passed by Municipalities in such cases."
It was further observed:
"30. ..... An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel, the Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selborne in Maddison v. Alderson, (1883) 8 App Cas 467 said that Courts of equity would not permit the statute to be made an instrument of fraud."
10. An argument was raised that the Corporation has acted contrary to the provisions of M. P. Municipal Corporation Act in the matter of removing of the encroachment and as such it be directed to restore the plaintiff/petitioner to the same position he was on the date of demolition. He is claiming extension of the principles contained in Section 44 of the Code of Civil Procedure, 1908. He has relied upon a decision of this Court in Municipal Council Mandseshwar v. Ramesh Mangilal Fangu, 1984 MPLJ 633. It may be seen that in the above case interim order was in existence and a direction was given to the defendant to restore the possession of the property. As there was no injunction in operation, no direction can be given in this case. Independently of that I have come to a conclusion that the plaintiff/petitioner had no right to continue on the public street. The Corporation acted in accordance with law removing the encroachment. Even otherwise no direction can be given as it would result in resuscitating a situation which would be in breach of statutory provision. A reference may be made to a decision of the Supreme Court in Venkateswara Rao v. Govt. of A.P., AIR.1966 SC 828, wherein it was observed:
"If the High Court had quashed the said order, it would have restored an illegal order."
In the circumstances the prayer made by the plaintiff/petitioner that he is entitled to same relief as could be granted under Section 114 of the Code of Civil Procedure, 1908 is without any merit.
11. -Encroachment on public streets and public places is every day happening. It would be apt to remind the Corporation that it occupies a status of trustees and it would be useful to refer to what was said in Attorney General v. Corporation of Sutherland, (1876) 2 Ch D 634. It was observed that the position of Municipal Corporation in 'regard to public parks, gardens, squares and streets was that of a trustee and Corporation would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by law. It is hoped that Corporation would show the same alertness in the matter of removing encroachments as it has shown in this case.
12. This petition is without any merit. It is dismissed but there would be no order as to costs.
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