DISTRICT BOARD SALEM Vs. S K HANUMANTHA RAO
HIGH COURT OF MADRAS
DISTRICT BOARD, SALEM, BY ITS PRESIDENT
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Venkatarama Ayyar, J. -
(1.) This revision arises out of a suit instituted by the District Board, Salem, for recovery of a sum of Rs. 135 being the value of a tamarind tree cut and carried away by the defendants. The claim made in the plaint was that the tree in question stood on a public street which had vested in the District Board and it, therefore, belonged to them. Defendants 1 and 3 pleaded that the tree stood on their patta lands and that it belonged to them; that even if it stood on the public street the Government and not the. District Board was the owner thereof and that, therefore, the plaintiff had no right of action. The learned District Munsif held that the tree stood not on the patta lands of defendants 1 and 3 but on a public street which had vested in the District Board. He also held that the tree was an ancient one and was in existence before the highway vested in the District Board, that there was no proof as to who planted it, that it must, therefore, be taken to he of spontaneous growth and that the vesting of the highway in the District Board in 1930 had not the effect of vesting the tree in the Board and that, therefore, the Government and not the Board was the owner thereof. The District Munsif further "held that while on the one hand the defendants had failed to establish title to the tree by adverse possession the plaintiff had also failed to establish actual possession thereof. In the result he dismissed the suit. Against this decision the District Board prefers the present revision and contends that the finding of the lower Court both on the question of title and of possession is erroneous.
(2.) On the question of title Mr. S. Ramachandra Aiyar, the learned advocate for the petitioner argned that on a true construction of the relevant provisions of the Madras Local Boards Act, (Act 14 of 1920) what vested in the District Board was not merely the public road but also the trees standing thereon. Section 60 provides that all public roads in any district shall vest in the district board and Section 3 Sub-clause (18) defines a public road as including
"lands whether covered or not by any pavement, veranda or other structure which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to Government." 'The argument for the petitioner is that "land" will include all trees growing thereon and that, there fore, when the land vests' in the Board the trees standing thereon also must vest in them-It is also urged that the provisions of the statute recognise that the Board may have title to the trees other than those planted by them and reliance is placed on Section 112 (1) (ii) wherein the Board is authorised to spend funds for "the preservation of trees planted by or belonging to the local board"; Section 163-A (2) which enacts a prohibition against any person felling, removing, destroying or demaging '"any tree vesting in or belonging to a local board": and Section 202 (5) which confers on the Distric' Board power to make by-laws
"for the protection of avenues and trees planter by or belonging to local boards and of grass am other appurtenances of public roads."
(3.) Whatever one might think of it if the matter were res integra', it is so far concluded by authority that it could no longer be said to be open to argument The question has been considered England in a number of cases arising under Section 149, Public Health Act. In -- 'Coverdale v. Chartton', (1879) 4 Q. B. D. 104 (A) the point for decision. was whether the local authority was entitled to lease a right of pasturage over grass growing on public streets. The larger contention in support of the right to lease was that the vesting of the street carried with it full ownership of the land. In rejecting this contention, Bramwell L. J. observed,
"The word 'vest' may have two meanings; it may mean that a man acquires the property 'usque ad coelum' and to the centre of the earth but I do not think that to be its meaning here ...... The Legislature might have used the expression "Transferred or conveyed', but they have used the word 'vest'. The meaning I should like to put upon it is, that the street vests in the Local Board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street; ...... ...... The meaning I put upon the word 'vest' is, the space and the street itself, so far as it is ordinarily used in the way that streets are used, shall vest in the local board." After referring to the provision that any person who causes injury to the tree shall pay compensation to the local authority, which corresponds to Section 163-A, Local Boards Act, the learned Judge observes
"Does that mean that the local board have a property in the tree and in the soil? I doubt very much whether that ought to be the construction put upon the enactment, but if it is. It goes a long way to show that the local board tad such a property as they claim in this herbage. Even if it does not, ii it will not apply to the tree which although surrounded by the street could be said in one sense to be no part of it, for the public had no right to pass over where the tree stood; and if it does not apply to a tree now in existence, but only to the trees the local board may plant or become otherwise entitled to, why even then it would show that they must nave some property in the soil and its produce; that would assist the contention in favour of the plaintiff," In the result it was held that the vesting of the street carried with it the right to grass and herb growing thereon.;
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