B GOVINDA RAO Vs. DISTRICT COLLECTOR

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 Cochi n 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: "i think I should here make it clear that it is the duty of the Collector as well as the Corporation to remove the obstructions in the public streets. Whatever be the difficulties that may be caused to petty traders, the members of the public have got a legal right to use the foot-paths in an unobstructed manner. The Corporation and the Revenue authorities have a legal duty to see that such right of the public is maintained " (1982 KLT. p. 133)

(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. RI and RI (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. 21o 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: "6. It is further submitted that the poramboke land in question is vested in the Corporation of Cochin under S. 210 of the Kerala municipal Corporations Act. THE impugned action is unauthorised and illegal for want of sanction of the Corporation also. " THE Corporation of Cochin, the 2nd respondent, in their counter-affidavit dated 28-6-1982 stated: "3. So far as this respondent is concerned, it is submitted that under S. 210 of the Kerala Municipal Corporations Act, all public streets in the city not reserved under the control of Central or State government have vested in the Corporation. THE Corporation is also empowered under S. 230 of the said Act to remove any encroachment in or over any street the control of which is vested in the Corporation. " Although the respondent-Corporation has not specifically and categorically stated that the land on which the bunk stands is property vested in the Corporation, that appears to be the implication of their averment. In any case they have not so far denied the petitioner's contention that S. 210 of the Corporations Act governs the land on which the bunk stands. THE Corporation has further stated that their permission had not been sought before the bunk was constructed. THE averment of the petitioner as regards the nature of the Government poramboke has not been denied by any one of the respondents. Although in his rejoinder dated 25-6-1982 the petitioner had specifically referred to S. 210 as having been attracted to the land in question, respondents 1 and 2 did not contradict that statement by filing an affidavit to that effect. In view of the interim order of stay granted by this Court on 11-6-1982 in C. M. P. No. 11511/82, the Government Pleader requested for an early hearing of the O. P Accordingly the hearing commenced on 6-7-1982. On 7-7-1982 the petitioner moved a petition to implead the State of Kerala as an additional party. Since no additional allegations had been made by the petitioner, the petition was allowed on 7-7-1982 itself. THE State is thus impleaded as respondent No. 7.

(3.) IN the affidavit sworn by the 3rd respondent on 23-6-1982, he states: "the interim order of this Hon'ble Court was served on the 1st and 3rd respondents only on the afternoon of 11-6-1982. As the 1st respondent was not in station on that date, this respondent immediately on receipt of the copy of the interim order of this Hon'ble court went to the spot to see that further construction is stopped, It was then found that the construction of the bunk had already been over" (emphasis supplied) The 6th respondent in his affidavit dated 23-6-1982 says that the bunk was donated by the Lions Club to the Government. These averments show that the 3rd respondent did not know that the construction of the bunk donated by the Lions Club to the Government was over until the afternoon of 11-6-1982 when he rushed to the spot to stop further construction of the bunk in terms of the interim order. He then found that the construction was over. This shows that until the interim order of this Court was served on the 3rd respondent and until be went to the site, no person bad been allowed to occupy or had in fact occupied the bunk. If the facts were different, he would have stated so in bis affidavit of 23-6-1982 itself or at any rate subsequently, especially because the question began to loom large. The silence of the 1st respondent on this point even in his affidavit of 10-7-1982 is indeed significant. The only presumption that can be reasonably drawn from this significant silence on the part of respondents 1, 3 and 7 on this important point is that neither the Government nor their officers have so far permitted any persons to occupy the bunk and that none has so far occupied it with their knowledge and consent. If, as a matter of fact, any person has actually occupied the bunk during the pendency of this O P. and subsequent to the interim order of this Court, that occupation would be an invalid and improper act, and any person abetting such occupation would have acted improperly and in total opposition to the disclosures made to this Court by the respondents. I do not however presume such impropriety. I would, on the contrary, presume that the respondents have acted legally, properly and in good faith and with due deference to the directions of this Court. IN the absence of any averment to the contrary in any one of the affidavits so far filed by the respondents, I would take it that the bunk has not been allowed to be occupied by any person outside the Government and that therefore all the necessary and proper parties are before this Court.