RAI BRINDABAN PRASAD Vs. GAYA MUNICIPALITY

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Gaya, for setting aside an order passed by the Sub-Divisional Magistrate of Gaya under Secs.196 and 197 of the Bihar and Orissa Municipal Act, requiring Rai Brindaban Prasad, who was the petitioner before the Sessions Judge, to remove an encroachment, namely a chabutra or platform, constructed by him on Plot No. 11913 belonging to the Gaya Municipality. The proceedings were started at the instance of the Special Officer appointed by the Local Government to take charge of the affairs of the Gaya Municipality during the period of its supersession. The plot is said to be a public passage between a road known as the Halliday road and a tank. The construction of a platform on the plot by the petitioner is not denied.

(2.) Mr. Baldeo Sahay for the petitioner supported the reference on the following grounds. He suggested that the Municipality had not proved its title to Plot No, 11913 on which the platform was situated. In or about the year 1914 the Municipality was survyed under the Calcutta Survey Act which by Section 223-A of the Bengal Municipal Act had been extended to all the Municipalities in this province. In that survey the plot was recorded as belonging to the Municipality, and no suit was brought to challenge that entry within one year as required by Section 22 of the Bengal Survey Act. The result is, that a subsequent suit to challenge the title of the Municipality is barred: Municipal Commissioners of the Gaya Municipality V/s. Musammat Rupkali 18 PLT 466 : 171 Ind. Cas. 45 : AIR 1937 Pat. This ground must, therefore, fail.

(3.) The next ground, which is the basis of the reference by the learned Sessions Judge, is that the matter in dispute had already been decided by the Municipality in the petitioner's favour in the year 1931. It appears that the petitioner had applied to the Sub-Divisional Magistrate for calling for papers in that connection, and that certain papers were produced but not made part of the record. On the Sessions Judge's record I find a report made to the Chairman by a Municipal Commissioner who enquired into the matter in the year 1931. It appears that proceedings had been instituted as the petitioner had left building materials on Plot No. 11913, and it was reported that this plot belonged to the petitioner. There is a note from the office informing the petitioner to that effect, and that no further action was being taken. Even if these documents be accepted at their face value the effect could not have been to pass title to the petitioner. Title could only have been acquired by the petitioner under a proper title-deed or by adverse possession. Neither of these conditions is present in this case. The fact that on a previous occasion the Municipal Commissioners appear to have failed in their responsibilities in the matter is no bar to the action which has been taken by the Special Officer in the present proceedings. I find, therefore, that the Municipality was entitled to have the obstruction removed.