Decided on November 04,1967

ATMARAM Respondents


- (1.) THIS second appeal arises on the following facts.
(2.) THE plaintiff erected a Pan-thela on one side of a road in Balaghat. This led to Revenue Case No. 15 /A-68 of 60-61, in which the Tahsildar, Balaghat, found that the plaintiff was in unauthorised occupation and ordered him to remove the Pan-thela. This order, which is dated 4-1-1961, was passed under section 248 of the Madhya Pradesh Land Revenue Code, 1959. THE plaintiff then filed the present suit against the State of Madhya Pradesh for a declaration that the order of the Tahsildar is illegal, void and without jurisdiction and cannot be executed against him. THE grounds on which this relief is claimed by him are that he was in authorised occupation having obtained permission from the Municipal Committee, Balaghat, and that, in any case, as the road is within the limits of the Municipal Committee, the Tahsildar had no jurisdiction to take any action under section 248 of the Land Revenue Code, 1959. THE Courts below have held that the plaintiff's occupation of the road is wholly unauthorised but they have further held that as the road is within the limits of the Municipal Committee, Balaghat, the Tahsildar lacked inherent jurisdiction to pass any order under section 248 of the Code. THE plaintiff, on this finding, obtained the declaration as prayed by him from 3rd Civil Judge, Class II, Balaghat, which was confirmed in appeal by the Additional Distript Judge, Balaghat. THE State now appeals to this Court. The only point argued before me is about the jurisdiction of the Tahsildar in passing the order impugned in the suit. The learned counsel appearing for the parties are agreed that the land of the road is owned by the State, and that the road is in the nature of a public street within the area of the Balaghat Municipality. It is also now agreed that the plaintiff is and has always been in unauthorised occu\pation.
(3.) THE question under consideration depends upon the construction of certain provisions of the Central Provinces and Berar Municipalities Act, 1922, which was in force at the time when the Tahsildar passed the order, and the Madhya Pradesh Land Revenue Code of 1959. My attention is first drawn to section 38 of the Municipalities Act. The section declares that the property of the nature specified in clauses (a) to (g) of sub-section (1), if situated within the limits of the Municipality "shall vest in and be under the control of the Committee". One class of property is specified by clause (g) which is as under:- "(g) all public streets, not being open spaces or lands owned (by the Crown), and the pavements, stones and other materials thereof, and also all trees, erections, implements and things provided for such streets." [N. B.- In view of the Adaptation of Laws Order, 1950, the word 'Government' has to be read in place of the word 'Crown'.] Then reference is made to sections 93 and 94, which prohibit encroachments (immovable or movable) upon streets without the written permission of the Committee and authorise the Committee to take action for their removal. After reference to these sections, it is contended by Shri Khare, the learned counsel for the respondent, that the scheme of these sections is to vest all public streets in the Committee and authorise the Committee alone to take action for removal of encroachments upon streets.;

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