B GOVINDA RAO Vs. DISTRICT COLLECTORERNAKULAM

JUDGEMENT

(1.) Ernakulam was once a sleepy little town with well maintained roads having clean side-walks for the pedestrians to walk upon. That was when Cochin was Cochin and the gardens smiled all along the parks. Over the years the city has grown many times in size and population. The roads with gutter everywhere are now crowded with vehicles racing against each other; and the pavements, with pits and holes in the ground and advertisement boards hung dangerously low from the branches of trees, have become far too dangerous for the weary pedestrians to walk upon. Many of the roads are poorly lit, if lit at all, and it is a common sight to see rubbles, sand, bricks, drainage pipes, and the like left for months together on the sides of the roads all over the city. With buses, lorries and cars driven recklessly at maddening speed, unmindful of the pedestrians, the public streets in Ernakulam have become far too narrow to control the traffic, and the police in these circumstances look on helplessly. To make matters worse bunks of all kinds, some on wheels and some without wheels; some movables and others fixed; some licenced by the Corporation and many not so licenced, have sprung up all over the city. An enthusiastic young District Collector once decided to enforce the law presumably by recourse to the provisions of the Kerala Land Conservancy Act, 1957 (the "Conservancy Act"). He ordered the removal of the bunks from public streets, This was immediately challenged by the bunk-owners in various writ proceedings. My learned brother Chandrasekhara Menon J., after a thorough and lucid exposition of the relevant law, if I may say so with the utmost respect, disposed of the Original Petitions upholding the jurisdiction of the District Collector to order the removal of the bunks, whether or not licenced by the Corporation, but subject to notices being issued before action was taken. This is what he stated at the end of his judgment:

(2.) The converse is the position in the present case Here the District Collector has authorised the construction of bunks with a view to handing over the same to disabled persons in accordance with a scheme adopted by the Government (Exts. R1 and R1(a)). The bunk in question is the one that was constructed on the side of the Durbar Hall Road in front of the petitioner's hotel very close to the point at which the road joins the Foreshore Road and the Broadway. The bunk is right in front of the petitioner's compound wall at its western end where it touches the adjoining wall of the Kerala State Electricity Board compound. In front of the bunk the Durbar Hall Road takes a turn leaving a little extra space The petitioner contends that the bunk obstructs the front view of the petitioner's hotel, thereby diminishing its amenities and conveniences H says that be is aggrieved by the erection of the bunk which covers a portion of the frontage of his hotel. He has pointed out that the bunk has been unlawfully constructed on public street which is Government property vested in the Corporation of Cochin under S.2lO of the Kerala Municipal Corporations Act, 1961 (the "Corporations Act") In the Original Petition dated 10th June, 1982 the petitioner had averred that the 1st respondent, the District Collector, had no power or authority to sanction the construction of a bunk on the Government land in question. In the counter affidavit dated 23-6-1982, sworn by the 3rd respondent, the Tahsildar on behalf of himself and the Ist respondent, the District Collector, it is stated that the cabin is located about 33 links away from the border of the main road. There is no specific averment as to the exact nature of the land on which the bunk stands, apart from saying that it is Government poramboke land. This is significant, because it is clear from the averments in the petition that the bunk stands on the side of the Durbar Hall Road. In the rejoinder dated 25-6-1982 filed by the petitioner in answer to Ist and 3rd respondent's counter affidavit dated 23-6-1982 he specifically stated:

(3.) At the very outset of his arguments the petitioner's counsel Shri K. V. Kuriakose laid much stress on the petitioner's contention that the land on which the bunk has been constructed is Government property vested in the Corporation of Cochin in terms of S.210 of the Corporations Act. He referred to the relevant averments in the Original Petition as well as in the rejoinder and pointed out that the specific allegation of the petitioner on the point, which is a matter within the special knowledge of respondents 1 to 3, has not been denied by any one of them. I then indicated from the Bench that it would be open to the Government or its officers particularly respondents 1 and 3 to specifically deny this allegation, if they so desired, and place before me whatever record was available in support of their stand on the point. I am indeed surprised that neither the first nor the third nor the seventh respondent has chosen to file an affidavit on the question of vesting or produce any supporting document. I should have expected them to deny the fact of vesting if that was the truth, at the earliest opportunity. No prompting was needed for it. Even in the affidavit sworn by the 1st respondent on 10-7-1982 (filed on 13-7-1982) there is no whisper on the question of vesting. In the circumstances, there cannot be any controversy about the nature of the property on which the bunk stands. The petitioner's assertion that the bunk has been constructed on Government property duly vested in the Corporation of Cochin under S.210 of the Corporations Act stands uncontroverted, and f would therefore proceed on that basis.