TMI Blog1980 (5) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, 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 the plaintiff/appellant. The facts of the case are briefly as follows : The plot in dispute is plot No. 227 measuring 45' X 20' adjoining Patri alongwith the road running from Golgarh to Alinagar in Gorakhpur. The respondent Ata Mohd applied to the Municipal Board, Gorakhpur for grant to him of a lease in the year 1939. The Board declined to grant him lease. The respondent again applied on 10-10-1945. The Municipal Board passed a resolution on 24-11-1945 granting to the respondent the lease and forwarded the resolution to the District Magistrate to accord his approval who on 8-3-1946 approved t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plaintiff's 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 Alinagar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of its authority, is not available to the municipality. The plea of the State taken before the High Court, and before us, by Mr. Dixit learned counsel for the appellant, is that the State is the owner of the property inspite of the fact it had vested in the municipality as a street under S. 116(g) of the Act. It was submitted that when the property is put to a different use, it is open to the Government to assert its title and require anyone in illegal possession of the property to vacate. There is not much dispute that the property belonged to the State before the Municipal Act was passed. 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 the respondent. The Municipalities in various States were created under the respective Municipalities Acts, in order to facilitate the efficient administration of the Munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal 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 trespassers. 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 an action for trespass against any member of the public who acts in excess of his rights. After referring to S.116(g) of the Uttar Pradesh Municipalities Act, under which a public street vests in a Municipality, the learned Judge referred to a decision of a Division Bench of the Madras High Court in S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in a Municipal 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 body determines. It is, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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