JUDGMENT
1. In all these Original Petitions what is questioned is the action initiated by the District Collector with the concurrence of the Executive Engineer, National Highway, Ernakulam, Executive Engineer, P.W.D (B&R), Ernakulam and the Commissioner of Police to demolish the bunks by the road side in the Cochin Corporation where petty traders are carrying on their trades. Some bunks have already been demolished. Some of the bunks are constructed by the Cochin Corporation at its expense and granted to the respective licensees. Some with no such licences are functioning for the last few years. The Revenue and the Corporation passively allowed the bunk owners to carry on the trade in the footpaths and in the road side. In one case, the petitioners are the duly appointed agents of the Kerala Live Stock Development and Milk Marketing Board Ltd., who have put up Milma Kiosk or Stalls by the road side in Sites allotted by the Corporation, which also received licence fees in respect of the same. The petitioners would contend that the demolition of the bunks is violative of Arts. 14, 19 and 21 of the Constitution. The decision to remove the bunks and the action initiated thereon is alleged to be contrary to the rule of law and all canons of natural justice. According to them, they have invested large sums of money for conducting their business in the bunks. To take action of demolition upsetting the planned lives of the petitioners without any kind of notice, is arbitrary and illegal. They also contend that as regards bunks constructed by the Corporation that the Corporation itself has taken a decision as per Ext. P12 that prior notice is required for any kind of removal of inconvenience is a very vital pointer to the fact that the matter is very serious affecting the livelihood of the licensees. As regards Milma Stalls, bunks are situated in the sites with the permission from the Corporation of Cochin and the G.C.D.A on payment of rent. They contend that they cannot be summarily evicted without notice.
2. In the submission made by the learned Addl. Advocate General on behalf of the District Collector and on behalf of the others, who are respondents in the various O.Ps it was pointed out that the decision to remove the bunks was taken at a Conference of the District Officials and of the Mayor, the Deputy Mayor and some other members of the Corporation. It was being felt that these bunks, as they are situated in public roads, were creating great nuisance to the public. They were a hindrance to the travelling public in regard to the use of the roads.
3. In considering the questions raised before me in these cases, one has to be well aware of the law relating to public streets or loads situated within the Corporation limits. There is an excellent discussion on this aspect of the law in the well-known treatise on the Law of Municipal Corporations in British India by P. Duraiswami Aiyangar, though unfortunately, this book has no later edition to its revised second edition of 1924. The learned author states there (at page 485):—
“In India, however, all the Acts creating Muncipal Corporations define the word “street” and some of them also contain definitions of ‘public street’ and ‘private street’. Regard has therefore to be bad to the statutory definitions contained in the enactments, whenever any necessity arises for construing them. All streets are highways, although all highways are not streets. The franchise of every highway belongs to the sovereign as a trustee for the public; and all the public streets are for the public use, and the use is nonetheless for the public at large, a distinguished from the municipality. The Legislature of the State has full and paramount authority over all public ways; and by virtue of this authority, it alone can authorise acts to be done in and upon them, or legalise obstructions therein, which would otherwise be nuisances. It may determine when, where, and how streets and other public highways shall be opened, graduated, improved and regulated; and although a street is used by the public for purposes of travel and traffic, the state may determine and declare the manner of the use of particular streets, excluding traffic from some, and allowing railroads or street cars upon them, or their use by telegraph and telephone companies, water and gas companies, etc., as it deems best. The legislature, instead of exercising this authority directly has delegated to the municipal corporations some of the powers it admittedly possesses. The powers of supervision control and regulation which the Corporations possess are derived entirely from the Acts creating them and delegating them with these powers; and what in any particular case the power of any particular corporation is must be judged entirely from the enactment relating to it.
The solum of roads and streets belongs to the person or persons who expressly dedicates or is presumed to have dedicated the land forming the road or street. There is no authority for the proposition that all land within the limits of a Municipal Town must, in the absence of evidence to the contrary be taken to belong to the Municipal Committee. Lord Mansfield thus states the law as to highways: “The King has nothing but the passage for himself and his people; but the freehold and all profits belong to the owner of the soil.” …… …… …… ……
All the Acts provide for the vesting of public streets in the municipalities concerned. The statutory vesting of streets in a Municipality has not the effect of vesting in the Municipality the ownership of the land over which the streets are formed. If the land itself had been acquired by the Municipality either by purchase or otherwise and streets formed thereon, the ownership of the streets would be in the Municipality. But if the street or highway over the land was dedicated to the public either by the State or by the owners of the land adjoining the highway or by other person or persons, the ownership in the soil of the street or the highway will continue vested, subject only to the burden of the highway, in the State or the respective owners of the land on either side of the highway, ad medium filum, or in any other Person or persons who may have dedicated the street to the public as the case may be.”
4. The right, title and interest vested in the Municipality in respect of public streets has been examined at length by Bhashyam Ayyangar, J. in Sundaram Ayyar v. The Municipal Council of Madras (ILR. 25 Madras 635). Bhashyam Ayyangar, J., speaking for the court, after exhaustively surveying the case law in the matter both in England and in India said that what is vested in urban authorities under the statutes similar to the District Municipalities Act, is not the land over which the street is formed, but the street qua street and that the property in the street thus vested in a Municipal Council is not general property or a species of property known to the Common Law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway and that when it ceases to be a highway, by being excluded by notification of Government or by being legally stopped up or diverted, or by the operation of the law of limitation (assuming that by such operation the highway can be extinguished), the interest of the corporate body determines; and that the clauses directing or authorising the corporate body to sell, have reference only to property absolutely vested in it, but as to property in which its interest ceases it has nothing to sell. Duraiswami Aiyangar, in his book after referring to this case states that when a street is vested in a Municipality, such vesting does not transfer to the Municipality the rights of the owner in the site or soil over which the street exists. The Municipality does not own the soil from the centre of the earth usque ad coelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street.
5. This decision of Justice Bhashyam Ayyangar has been accepted in The Municipal Board, Manglaur v. Mahadeoji Maharaj (AIR. 1965 SC. 1147). Subba Rao, J. speaking for the court briefly stated the law on the subject.
“Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included to the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.”
6. The Municipality in such cases has the right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights. The learned Judge said that two results will flow from this legal position (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as a pathway, (2) it cannot be said that the putting up of the structures is necessary for the maintenance or the user of the road as a public highway. The court said that these acts are unauthorised acts of the Municipality.
7. Justice Bhashyam Ayyangar's observations in (1902) ILR. 25 Madras 635 were noted by the Supreme Court in State Of U.P v. Ata Mohd... (1980) 3 SCC 614 : AIR. 1980 SC. 1785 and it was pointed out that it is clear that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines.
8. We might also note in this connection that the proper use of a highway is for passing and repassing and user for any other purpose may amount to a trespass. The right to use public road is a common law right which every member of the publichas; the Municipal Committee cannot be allowed to take away this right at its pure discretion in the absence of any statutory provision leaving, in very clear terms, the private right of citizens entirely to the discretion of the Municipality. The public have a right to use every part of public street and not merely the metalled portion in the centre. See Bashingappa Parappa Chedachal v. Dharmappa Basappa Chedachal (12 Bom. L.R 586); Vibudapriya v. Esoof Sohih (11 CWN 585) and Johri Mal v. Dhani Ram (A.I.R 1942 Lah. 28).
9. In Sudhir Kumar Banerjee v. Commissioner, Corporation of Calcutta (65 Cal. W.N 133) it has been pointed out that members of the public using the foot-paths have a legal right of unobstructed user thereof, and there is a legal liability on the part of the municipal and police authorities to see that such a right as being maintained; if these authorities fail to perform their statutory duties, High Court has a right to issue a writ of mandamus. As Wilis, J. pointed out in Ex. parte Lewis (1888) 21 QBD 191 it is “A Right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance”
10. Now, let us look into the statutory provision in the Kerala Municipal Corporations Act. I would first refer to the definition of the word ‘public street’ occurring in S. 3(29).
“‘public street’ means any street, road, square, court alley passage or ridingpath over which the public have a right of way, whether a thoroughfare or not, and includes
(a) the roadway over any public bridge or causeway;
(b) the foot-way attached to any such street, public bridge or causeway; and
(c) the drains attached to any such street, public bridge or cause-way and the land, 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 the Government.”
11. S. 210 is of consequence here.
“210. Vesting of public streets and their appurtenances in corporation:—
(1) All public streets in the city not reserved under the control of the Central or the State Government, with the pavements, stones and other materials thereof, and all works, materials, implements and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the municipal fund or otherwise, in, along-side or under any street, whether public or private and all works, materials, implements and other things appertaining thereto and all trees not being private, property growing on public streets or by the side thereof, shall vest in the corporation.
(2) Any property vested in the corporation under sub-section (1) may be used by the council for any municipal purpose and as deemed fit by the council.
(3) The Government may, by notification, withdraw any such street, sewer, drain, drainage work, tunnel, culvert or tree from the control of the corporation.”
12. It was contended on behalf of the petitioners that because of sub-section (2) of Section 210, which is to the effect that any property vested in the Corporation under sub-section (1) may be used by the council for any municipal purposes and as deemed fit by the council, the Corporation is entitled to construct bunks by the road side and on the foot-paths and letting out the same is user by the council for a municipal purpose or at least user as deemed fit by the council. In the light of the Supreme Court decision, there cannot be any doubt that the property that is vested in a Municipal Council or Corporation is a special property created by the statute which is vested in it for a public purpose. That such property is with the Municipal Corporation or Council only as long as the street continues as a public way and it determines when the street ceases to be a way when the right of the Corporation ceases. The Corporation cannot use a public street for a purpose other than the purpose for which it has been vested in it. The municipal purpose or purpose as deemed fit by the council in section 210(2) has to be construed on the basis of what is vested in the Corporation under Section 210(1). It cannot be used by the Corporation for any purpose other than as a street I do not see how the decision in (1980) 3 SCC 614 which on the basis of the meaning of the word vesting as used in the Municipalities Act has said that when a street ceases to be a highway by its being diverted to some other use, the interest of the corporate body determines, would entitle the Municipality to use the property for any other purpose. There is no disposal by the legislature here which would entitle the Corporation to use a street for a different purpose than that for which it was vested in the Corporation.
13. The petitioners sought support for their position in the decision of Poti, J. as he then was, in K. Sukumaran v. Executive Engineer, National Highway (1974 K.L.T 272). In that case, the petitioners who were persons engaged in the business of displaying advertisements and publicity materials on boards and other suitable media were paying advertisement tax in respect of the advertisements displayed by them within the limits of the Cochin Corporation. The places in which such advertisements were exhibited were notified by the petitioners to the Corporation in advance and it is said that the previous approval was also being obtained from the Corporation. They approached this Court when the advertisement boards which were erected on the sides of important road junctions were removed at the instance of the Executive Fngineer, National Highway, Cochin Division The Court pointed out that the National Highways passing through the Cochin Corporation is, no doubt, a public street. It was not contended that it is otherwise. Such public streets include the foot-way attached to the highway and it is in this that the petitioners are said to have erected advertisement boards. The core of the controversy in that case was whether the National Highway passing through the Cochin Corporation vests in the State Government or whether it vests in the Corporation. The stand taken by the State Government in another case was that it is vested in the Corporation. The Executive Engineer, National Highways, in the case concerned has sought to distinguish the subject-matter in that case by stating that was a matter arising under the Kerala Municipalities Act, 1960 and the petitioner cannot take advantage of that. Poti, J., pointed out that it is apparent from S. 210 of the Kerala Municipal Corporations Act that unless it is shown that any public street in the Cochin city is reserved under the control of the Central or State Government, that part of the National Highway passing through the Cochin Corporation would vest in the Corporation and any property vested in the Corporation may be used by the Council for any municipal purpose. The Government has power to withdraw any public street from the control of the Corporation by notification. Therefore, unless shown otherwise, the court will have to assume that public streets within the limits of the Corporation vest in the Corporation and it is the Corporation which is competent to deal with it.
14. It might be further noted that as regards National Highways, Government have issued a notification SRO. No. 651/74 dated 13th August, 1974 (Justice Poti's decision has been rendered on 19th November, 1973) which states that in exercise of the powers conferred by sub-section (3) of S. 210 of the Kerala Municipal Corporations Act, 1961 (30 of 1961) the Government of Kerala withdraw such portions of the Public Streets within the cities declared as National Highways and those being maintained by the State Public Works Department and the sewers, drains, drainage works, tunnels, culverts and trees in, alongside or under such streets from the control of the Municipal Corporations in the State.
15. In Mytheen Mohammed v. Board of Revenue (1974 KLT. 134) my learned brother Vadakkel, J. has considered the application of the Land Conservancy Act in regard to roads vesting in Panchayats under S. 62 of the Panchayats Act. His Lordship pointed out there it is doubtful whether S. 3(2) of the Land Conservancy Act can be called in aid by respondents after sub-section (1A) of S. 62 was introduced in the Panchayats Act by Act 22 of 1967. It is a rule of interpretation of statutes to avoid as far as possible, the application of the principle: “later laws abrogate prior contrary laws.” Therefore, the attempt should be to reconcile the two provisions. If both the provisions can be enforced concurrently, an unauthorised occupier is liable to be proceeded against both by the Panchayat as well as by the Government simultaneously one under the Panchayats Act and the Rules thereunder, and the other under the Land Conservancy Act. The provisions can be reconciled by reading S. 3(2) of the Land Conservancy Act, subject to Ss. 62(1A) of the Panchayats Act. So read the Government canstep in invoking the provisions of the Land Conservancy Act only with the concurrence of the Panchayat.
16. In considering the application of this decision, it would be useful to note S. 62 and 62(1A) of the Panchayats Act.
62. “Vesting of public roads in Panchayats.—
(1) All public roads in any Panchayat area other than roads classified as National Highways. State Highways, or district roads, shall stand transferred to, and vest, in the Panchayat together with all pavemets, stones and other materials thereof, all works, materials, and other things provided therefor, all sewers drains, drainage works, tunnels and culverts, whether made at the cost of the Panchayat fund or otherwise in alongside or under such roads, and all works, materials and things appertaining thereto.
(1A) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to public roads and other properties, materials, and things vested in the Panchayat under sub-s. (1) or sub-s. (3) shall, from the date of such vesting, be the rights and liabilities of the Panchayat.”
17. There there is a transfer to the Panchayat and not the mere vesting. It further provides that all the rights and liabilities in relation to public roads and other properties from the date of such vesting shall be the rights and liabilities of the Panchayat.
18. More interesting, as far as the present cases are concerned, is the decision of a Division Bench reported in the same volume of the KLT. 1974 KLT. 200 (Darragh Smail & Co. v. Corporation of Cochin). There the Division Bench was considering the question whether the provisions of the Municipal Corporations Act, 1961 conflict with the provisions of S. 29 of the Major Port Trusts Act, 1963. Justice Nambiar, speaking for the court pointed out that the expression ‘vests’ used in Municipal Statutes has received judicial interpretation and it has been ruled that the scope and ambit of the term should be gathered from the context and purpose of the statute, and consistent with these, the vesting may only be for the purpose of administration for the benefit of the villagers or others. If this be the import and the significance of the term vests occurring in the two statutes, namely, the Port Trusts Act and the Municipal Corporations Act, there is no clash between the provisions of the two statutes if roads and public streets are vested in the Port Trust for the limited purpose of administering the port as envisaged by the Port Trusts Act, and in the Corporation for purpose of municipal administration.
19. In this view, I have no doubt that the Government has got the right to remove the obstructions in public streets even though they may be vested in the Corporation. The Corporation has taken no steps for the same. Under S. 3 of the Land Conservancy Act, the property of the Government is defined. There it is stated ‘all public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same, the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels……etc. will be Government lands. Explanation IV to that Section states that lands belonging to the Government of any other State, in India or the Kerala State Electricity Board or to a University established by law or to a corporation owned or controlled by the Government of Kerala or to a municipal corporation shall be deemed to be the property of Government within the meaning of this section. All unassessed lands within the limits of private estates used or reserved for public purposes or for the communal use of villagers, and all public roads and streets vested in any local authority shall, for the purpose of the Land Conservancy Act, be deemed to be the property of Government.
20. Then the question is in what manner the Collector, acting under the Land Conservancy Act, could evict any encroacher, even though he may be the licensee of the Corporation. S. 11(2) is the relevant provision which reads as follows:—
“11(2) Mode of eviction.—An eviction under this section shall be made in the following manner, namely:—
By serving a notice on a person reputed to be in occupation or his agent requiring, him within such time as the Collector may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person the Collector, shall hold a summary enquiry into the facts of the case and if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person, and on his appearance may send him with a warrant in the Form of the Schedule for imprisonment in the Civil Jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance:
Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under Ss. 183, 186 and 188 of the Indian Penal Code in respect of the same facts.”
21. It might be noted here that sub-section (3) of S. II states that notwithstanding anything contained in sub-section (2) where the Collector is of opinion in any case falling under sub-section (1) that it is expedient in the public interest to take urgent action without following the procedure laid down in sub-section (2) be may, after recording his reasons for so doing, issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice and if the land is not vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances may justify. Therefore, the Collector can certainly take action under sub-section (3).
22. Now, we should consider the question how far the Collector has followed the statutory requirements in the actions impugned. There is no doubt and it is not controverted that there has not been any compliance with sub-section (3) of S. 11. One can understand the urgent necessity in the matter, on the basis of which the Collector acted finding that the roads are crowded by unauthorised bunks and bunks licensed by the Municipal Corporation, which itself was an unauthorised act of the Corporation. But, whatever be the urgency, every authority will have to act in accordance with law and the court should but step in if there has been violation of law. Therefore, while holding that the actions initiated now are not in accordance with law, and also quashing the proceedings and prohibiting the Collector to further proceed on the basis of the actions now initiated, I think the court should give guidelines to the officers as to in what manner these bunks should be removed.
23. Here, I would classify the bunks into two groups; (1) Unauthorised construction without any permission from the Municipal Corporation or from the other authorities and (2) that had come up on the basis of the authorisation by the Corporation or bunks put up by the Corporation and leased out or licensed out to traders. By licensing what is meant is licensing out the bunks and not issual of licence for carrying on the trade. In both the cases, I would make it clear that the Collector has got the right to remove the bunks. But, in the case of the bunks which are constructed by Corporation and leased out or licensed out to petty traders or the sites leased or licensed out for putting up the bunks, the approach should be different. In the first of these cases, the Collector should give a reasonable notice to the unauthorised bunk owners to remove the bunks from the places concerned. It will amount to a nuisance and clearly wrong to use the public streets which will include pathway and foot-paths as sites for putting up bunks. Reasonable notice, I would say in the circumstances, should be at least 14 days' notice. With such notice Collector can act under S. II(3) of the Kerala Land Conservancy Act. It was pointed out that it would be difficult to serve notice personally to many of the bunk owners as there are no written records as to who all own the bunks. In such circumstances, the notice may be issued by affixing a copy of the notice on the bunks fixing a date for vacating the place which should be beyond two weeks from the date of such affixture on the bunks concerned and also publishing the same in at least two dailies having wide circulation in the city. Notices published in the dailies need not be individual notices in respect of each bunk. The bunks may be specified by stating bunks in such and such sectors of the city or in particular roads and the owners of the bunks should be directed to remove them within the period notified; only if the bunk owners do not act in the matter and do not remove bunks force should be used. As regards the bunks put up with the help of the Corporation or bunks constructed by the Corporation, I think the Collector should discuss the matter with the authorised representatives of the Corporation and a period decided at the conference for the removal of the bunks. No doubt, in cases where it is felt interest of justice requires some alternate sites be given, altercate sites can be fixed up at the conference and time allowed for removal of the bunks to that place. This will also apply to the Milma Stalls.
24. I think I should here make it clear that it is the duty of the Collector as well as the Corporation to remove the obstruction 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. Where it is possible to give alternate sites, certainly the deserving among the petty traders selected on a proper basis should be given the same. This is a case where the Corporation and the Government officers have to act in co-operation for public good.
25. O.Ps are allowed as indicated above. There will be no order as to costs. Carbon copy of the judgment would be given to the parties on usual terms. After the judgment was delivered in these cases, the Addl. Advocate General pointed out that many of the bunk owners have taken up the matter in original suits in various civil courts and temporary injunction obtained regarding the removal of the bunks. I am sure, the civil courts before which the cases are pending will certainly take note of the law as declared by this court, in disposing of the applications for injunction or in finally deciding the suits. The subordinate courts are bound to follow the law as laid down by the High Court unless the same has been overruled by a larger bench of this court or by the Supreme Court. Therefore, there need not be any apprehension about the matter.
26. Issue carbon copy to the parties on usual terms.