C HANUMANTHAPPA Vs. BELLARY CITY MUNICIPALITY

JUDGEMENT

(1.) This second appeal by the plaintiff in OS.No. 1136 of 1965 on the file of the Principal Munsiff, Bellary, is directed against an affirming judgment and decree made by the Civil Judge, Bellary, in RA.No.66/68. The said appeal had been preferred by the present appellant against the judgment and decree of the Principal Munsiff, dismissing his suit for injunction. The material facts are as follows: S.No.640 2 is a Government poromboke land and a part of it forms the road margin of Bellary-Ananthapur Road, situated within the limits of Bellary Municipality, the respondent herein. The appellant has put up a wooden 'Bunk' on a portion of the said road margin and been running a beedi shop therein. The respondent called upon him to execute a lease deed in respect of the space occupied by the 'Bunk' on 3-11-1965, whereupon he applied for the grant of the necessary licence on 1-3-1965. The respondent by a resolution dt.30-9-1965 granted permission for the lease of the space occupied by the 'Bunk' on certain terms. On Being communicated with the said decision, the appellant paid Rs.50 towards the arrears of rent in part payment'. It may be noted here that it is averred in the plaint that he took all the steps in this regard attributed to him under presure. Subsequently, he has filed the suit, which has given rise to the present appeal, for injunction. His case principally is that the Municipality has no vested right in a Government 'Poromboke' land as the same should be deemed to have been reserved by the Government. It is, however, not disputed that the 'Bunk' is situated on a 'road margin'. In short the case is that the Government alone was competent to evict him. The case on behalf of the Municipality is that although the road margin is a Government Poromboke, it had a right to regulate such leases by virtue of a notification issued by the erst while Madras State in exercise of the powers conferred on it under the relevant provisions of the Madras District Municipalities Act, 1920. The Notification in question is GO.No.2428 L and M dt. 18-5-1934. Incidentally, reliance was also placed on the provisions of S.81 of the Mysore Municipalities Act, 1964. The trial Court dismissed the suit, holding, inter alia, that the Municipality had the legal right to regulate the lease of land forming road margins. On appeal, the said decision was affirmed by the learned Civil Judge, Bellary. Hence, this Second Appeal by the plaintiff.

(2.) On behalf of the appellant, Sri B. Ramachandra Rao, learned Advocate, contends thus: S. 81(2) (f) of the Mysore Municipalities Act, 1954, hereinafter referred to as the Act, has no application to the case. It is applicable only if the land is shown to have been vested in the Municipality and not otherwise. Since the land admittedly is a Government Poromboke, being a survey number, it must be deemed to have been reserved within the meaning of the provisions of S.81 (2) (f) of the Act. This position is in no way altered by the Notification of 18-5-1934 on which reliance has been placed on behalf of the Municipality. Lastly, the Municipality's control is confined to the street proper and not to the road margin.

(3.) On behalf of the respondent-Municipality, Sri K. A. Swami, the learned Counsel, contended that the road margin is part of the street and it is clearly vested in the Municipality by virtue of the operation of statute, namely S. 61 of the Madras District Municipalities Act. Such vesting is clearly saved by the provisions of S.382 of the Mysore Municipalities Act. It is further his argument that the Notification of 18-5-1934, which is also saved by S. 382 aforementioned, clearly indicates that the then Government of Madras had clearly recognised this position, both as regards the road and road margin, and had sought to further regulate the powers to lease such road margins, exercisable by the Municipalities.