Holding

Section 116(g) vests only the street qua street in the municipality, not the underlying soil, so the State retains ownership and may evict the illegal occupant.

Summary

Ata Mohd applied for a lease of plot 227 adjoining a public road in Gorakhpur. The Municipal Board granted the lease in 1945, which was later approved by the District Magistrate and a KABULIYAT was executed. The State of Uttar Pradesh later cancelled the lease, claiming the land was Nazrul (state) land and that the municipality lacked authority to lease it. The trial court held the land to be a street vested in the municipality under Section 116(g) of the Uttar Pradesh Municipalities Act, but the High Court upheld the municipality's right to lease. The Supreme Court reversed, holding that Section 116(g) confers only a "street qua street" right to the municipality, not ownership of the soil, and therefore the State, as the true owner, could evict the occupant. The appeal was allowed and a decree was granted in favour of the State.

Issues considered

Whether the disputed plot constitutes a "street" under Section 2(23) of the Uttar Pradesh Municipalities Act.
Whether Section 116(g) vests ownership of the land in the municipal board or merely a right to manage the street.
Whether the municipal board had the statutory authority to grant a lease of the land in question.
Whether the State of Uttar Pradesh retained title to the land and could evict the occupant after the lease was cancelled.

Legislation cited

Uttar Pradesh Municipalities Acts. 116(g), s. 118, s. 2(23), s. 6, s. 7

Subjects

municipal authorityleasestreet definitionproperty ownershipevictionUttar Pradesh Municipalities Actstatutory interpretationpublic land

Judgment

1095

STATE OF UTTAR PRADESH A
v.
ATAMOHD.
May 8, 1980
[S. MURTAZA 'FAZAL ALI AND P. S. KAILASAM, JJ.) B

flttar Pradesh Municipalities Act, Sections 2(23) 7, 116 (g) a11d 118-
Scope of.

Tho respondent applied in the year 1939, to the Municipal Board, Gorakh-
I pur for granting to him of a lease of plot No. 227 measuring 45'X20' adjoin- c
-"'- ing Patri along with the road running from Golgarh to Alinagar in Gorakhpur.
The Board declined to grant him the lease. On a second application dat~
10-10-1945, the Municipal Board passed a resolution on 24-11-1945 granting
the lease to the respondent. On 8-3-1S46 the District Magistrate accorded his
approval of the resolution of the Mnnicipality. On 12-4-1946 the respondent
executed a "KABULIYAl"' in favour of the Municipal Board, Gorakhpur. On
23;4-1946 the respondent applied for permission to construct a house and sub- D
mitted a plan for sanction. The plan was sanctioned by thei Municipality oiii
8-5-1946.

On receipt of certain representations on 10-6-1947, the District Magistrate
directed the Chairman of the Municipal Board not to allow the construction till
a decision was taken on the question. On 13-6-1947, the Chairman, Municipal
Board directed the respondent not to proceed with the construction of the house, E
The State Government on being satisfied that the resolution regarding the grant
of the lease was not within the competence of the Municipality, directed the
Commissioner to cancel the lease granted to the respondent, whereupon the res--
pendent was served with a notice on 13-7-1948 cancelliog the lease and calling
upon him to remove the construction and deliver vacant possession within 15
daya of the receipt of the notice. The respondent filed a suit no. 86 of 1948
for an injnnction restraining the Municipal Board from demolishing or otherwise F
interfering with the Construction made by him on the disputed land. The Civil
Judge, GQrakhpur decreed the suit and that has become final.

Thereafter, claiming the land as the Nazarul land belonging to the State,
the appellant-State filed 5uit no. 109 of i949 in the Court of Civil Judge,
Gorakhpur against the re5pondent Ata Mohd. for a mandatory injunction direct-
ing the respondent to remove his material and construction and for a decree for G
possession over the land measuring 45'X20'. The Civil Judge Gorakhpur dis-
mi55ed the suit by judgment and decree dated 3-10-1950. The appellants plain·
·tiff preferred first appeal No. 27 of 1951 to the High Court of Allahabad. The
appeal woo heard by a Bench of two Judges but on a difference of opinion, the
matter was referred to the third Judge. In accordance with the view of the
majority, the appeal preferred by the appellant plaintiff was dismissed by its
'\ judgment dated 25th August, 1965. On a certificate granted by the High Court H
under Art. 135 of the Constitution and also Art. 133(1)(c) of the Constitution,

t the present appeal in this Court was filed by the plaintiff/appellant.
1096 SUPREME COURT REPORTS (1980] 3 S.C.R.

A Allowing the appeal, the Court

HELD : l. The Municipalities in various States were created undel' the res·
pective Municipalities Acts in order to facilitate the efficient administration of
the Municipal areas and to provide lighting, watering and maintaining of publid
streets a.nd places. The duties of the Municipal Boards are specified in S. 6
of the U.P. Municipalities Act. Under S. 118 of the Act, the Municipal Boiird
B is e'mpowered to manage or control any property entrusted to its management
and control. The vesting of the property, in the Municipality is under S. 116
of the Act. S. 116· provides that subject to auy special reserv:>tion made by the
State Government, all property of the nature specified in this section and situated
within the Municipality shall vest in and belong to the Board, and shalli, with
all property which may become vested in the Board, be under its direction,
management and control. While under clause· (f) of S. 116, all lands and
c other property transferred to the Board by the Government by gift, purchase or
otherwise for local public purposes ves! in the Municipality, under Cl. (g), the
streets vest only qua streets and not as absolute property with the Municipality.
In the present case the property falls within the definition of 'Streee wider
section 2(23) of the Act. [1100 A-D, E-F, HJ

2. Though ,the street vested in the Mnnicipal Council under section 116 of
D the U.P. Municipa.l Act, it does no~ transfer to the Municipality the right of the
owner in the site or. soil over which the street exists. Therefore, when! a Street
ceases to be a highway by its being diverted to some other use, the inrerest of
the Corporate body deten,nines. Therefore, what is- vested in the municipality
under sectioo 116(g) is the street qua street and if the Municipality put the
street to any other nser than that for which it was intended, the State as its
Own.er, is entitled to intervene and mafntain an action and to get any persrin in, ·
E illegal occupation evicted. [1102 A, G, 1103 A-BJ -

Municipal Board, Mangalur v. Sri Mahadeoji Maharaj, [1965] ~ S.C.R. 242;
followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1513 of 1970.
(I Appeal by Certificate from the Judgment and decree dated 25th
August, 1965 passed by the Allahabad High Court in first Appeal
No. 27 of 1951.
G. N. Dikshit and S. Markandeya for the Appellant.
Y ogeshwar Prasad, Mr. & Mrs. S. K. Bagga & Mrs. Rimi Chhabra
G for Respondent
The Judgment of the Court was delivered by
KAILASAM, J.-This appeal is preferred by the State of Uttiir
Pradesh by certificate granted by the High Court of Judicature at
Allahabad on 18-5-1970 in Supreme Court Appeal No. 105 of 1966
H against its judgment and decree dated 25th August, 1965 passed by
it in first appeal No. 27 of 1951 dismissing the suit filed by the State
of Uttar Pradesh.

I
·I u.P. STATE v. ATA MOHD (Kaiiasam, J.) 1097

The State of Uttar Pradesh filed suit No. 109 of 1949 in the Court A
of Civil Judge. Gorakhpur against the respondent Ata Mohd. for
a mandatory injunction directing the respondent to remove his mate-
rial and construction and to clear the land and the plot No. 227 in
Mohalla Purdilpur in the City of Gorakhpur and for a decree for posses-
• sion over the land measuring 45'. X 20'. The Civil Judge, Gorakhpur
dismissed the suit by judgment and decree dated 3-10-1950. The plain- R
tiff preferred first appeal No. 27 of 1951 to the lfrgh Coun of Allaha-
bad. The appeal was heard by a Bench of two Judges but on ·a
difference of opinion, the matter was referred to the third Judge. In
aecordauce with the view of the majority, the appeal preferred by the
plaintiff was dismissed by its Judgment dated 25th August, J 965.
On a certificate granted by the High' Court under Art. 135 of the Cons- C
titution and also Art. 133 ( 1 )( c) of the Constitution, the present appeal
in this Conn was filed by the plaintiff/appellant.

The facts of the case are briefly as follows : The plot in dispute
is plot No. 227 measuring 45' x 20' adjoiniog Patri alongwith the

• road running from Golgarh to Alinagar in Gorakhpur. The respon-
dent Ata Mohd applied to the Municipal Board, Gorakhpur for grant
to him oi a lease in the year 1939. The Board dedined to grant him
D

lease. The respondent again applied on 10-10-1945. The Municipal
Board passed a resolution on 24-11-1945 granting to the respondent
the lease and forwarded the resolution to the District Magistrate to
accord his appi;oval who on 8-3-1946 approved the resolution of the E
Municipality. On 12-4-1946, the respondent executed a 'KABULI-
YAT' in favour of the Municipal Board, Gorakhpur. On 23rd
April, 1946, the respondent applied for permission to construct a
house and .submitted a plan for sanction. The plan was sanctioned
by the Municipality on 8th May, 1946. ·
F
On receipt of certain representations on 10-6-1')47, the District
Magistrate directed the Chairman of the Municipal Board not to allow
the construction till a decision was taken on the question. On 13-6-
1947, the Chairman Municipal Board directed the respondent not to
proceed with the construction of the house. The State Government on
being satisfied that the resolution regardirig the grant of the the lease G
was not within the competence of the Municipality, directed the Com-
missioner to cancel the lease granted in favour of the respondent.
The Executive Officer, Municipal Board, issued a notice on 13-7-1948
to the respondent cancelli'llg the lease and called upon him to remove
the construction and deliver vacant possession within l 5 days of the
receipt of the notice. The respondent filed a suit No. 86 of 1948
for. an injunction restraining the Municipal Board from demolishing _1
11-610SCI/80

'.
1098 SUPREME COURT REPORTS [1980] 3 s.C.R.

A I-
or otherwise interfering with the construction. made by him on the
disputed land. The Civil Judge, Gorakhpur, decreed the suit as prayed
fot. The present suit out of which this appeal arises was filed by the -(
State of Uttar Pradesh subsequently in 1949.
In the plaint the State of U. P. submitted that plot No. 227 is •
B Nazrul land and is the property of the Government. It described the •
disputed land as adjoining the Patri of the Munibpal Board running
from Golgarh crossing to Alinagar and situated beyond the limits of
"
..
the road and Patri. Acoording to the Government, the Municipal
Board witho\lt knowing the true position of the land passed the reso-
I.
lution on 24-11-1945 to lease the portion of the land in favour of the
c defendant.

"
In paragraph 10 of the plaint the State of U.P. alleged
that the Government or the Distri>et Magistrate were not originally .._,-'
aware of the land being Nazrul r and of its being dealt with by the
Municipal Board in an objectionable manner and that the Municipal
Board was under the wrong impression and that on realising the true
D state of affairs on instructions of the· Government, the Municipal Board
served a notice cancelling the resolution of the Municipality to lease
the land to the respondent. The Government submitted that it was
•
I
entitled to retain its possession on the ground (1) that it never leased
on( the land to defendant nor did the defendant make the construction
with the plaintiff's permission; (2) that the Municipal Board is not the
owner of the land and has no interest in it and the Municipal Board
did not, in fact, execute any lease in favour of the defendant and that
neither the resolution of the Municipality nor the 'KABULIYAT'
executed by the defendant would confer any right on the respondent,
the respondent in his written statement admitted that the land ig dispute
formed part of the Patri of the public road running from Golgarh to All-
F nagar in the City of Gorakhpnr. He pleaded tha~ there was a. practice
in the Municipal Board, Gorakhpur not to execute a leasei but to obtain
. KABULIYATS"from lessees and that he bona fide believed the Mm:iici-
pal Board is the owner of the plot and asked for permission and acting
f
'
on the permission granted, put up a double storey house costing more
than ten thousand rupees. He further contended that even assuming
G though without admitting that the land in dispute belonged to plainhtt
Government, the Municipal Board is fully authorised to let out
such a land, to him. He further submitted that as the Collector of
Gorakhpur has authorised the lease of the land by the Munidpality
and sanctioned the grant of the lease to the respondent, the Govern-
ment is not entitled to' eject him.
H
From the pleadings, it is clear that the disputed land adjoins Patri
of the ronJ running from Golgarh to Alinagar. It is also admitted
'\ .
U.P. STATE v. ATA MOHD (Kailasam, J.) 1099

that the Municipality did not ex.ecute the lease but the respondent A
executed a 'KABULIYAT' regarding the land. the contention on
behalf of the plaintiff State of Uttar Pradesh is that the land belonged
to the State and the Municipality had no power to lease ilie land.

•.. The Trial Court found that the land in dispute does not belong to
the plaintiff Government but was a "street" and belonged to the B
Municipal Board, Gorakhpur. It also found that though no lease deed
.." was executed by the Municipality as the defendant took po"ession
under the contract and admittedly built up a house, the plai'Iltiff is
estopped from prayi.ng for demolition and for possession of the build-
ing. On appeal, the High Court accepted the findings of the Trial
Cour( that the disputed land is adjoining Patri but as two Judges took C·
the view that land in dispute vested in the Municipality under s. 116
(g) of the Uttar Pradesh Municipal Act, it was the only competent
j authority to sanction the lease in respect of the land and the State
·Government had no right or interest left in the land and could not,
therefore, challenge the validity of the transaction entered into by the
Board in exercise of the power conferred under the Municipalities Act. D
As a result 'of the finding that the State had no right to the property,
it was held that the Government was not entitled to challenge the lease
granted by the Municipal Board. In this view, the appeal preferred
by the State was dismissed."

It may be noted that the· suit filed by the respondent ag,tinst the E
municipality for injunction restraining the Municipal Board from
demolishing or interfering with the constructions made by him was
decreed in O.S. No: 86/1948 and that decree has become final. In
the present suit, the municipality is not a party. Therefore, the con-
tention that the municipality had not leased the site to the respondent
by a document as required by Municipal Act, would be of no avail.
Equally, the plea that it acted beyond the scope of its [!Uthority, is
not available to the municipa'lity. The plea of the State taken before
the High Court, and before us, by Mr. Dixit learned counsel for the
appellant, is that the State is the owner of the property inspite of the
fact it had vested in the municipality as a "street" under S. l l 6(g)
G
of the Act. It was submitted that. when the property is put to ·a diffe-
rent use, it is open to the Government to assert its title and require
· anyone in illegal possession of the property to vacate. There is not
much dispute that the property belonged to the State before the Muni,
cipal Act was passed. The High Court has found that the Sfate was
the owner of the property till the Municipal Act was passed and this H
futding was not challenged before us. The only point on which the
State lost the suit before the High Court was that aft~r the passing

I
1100 SUPREME COURT REPORTS [1980] 3 S.C.R.
'
A of the Uttar Pradesh Municipal Act, the property vested in the Munici-
pality and th.e State ceased ,to be the owner and, therefore, cannot
maintain tbe suit for evicting tbe respondent
The Municipalities in various States were created under the res-
pective Municipalities Acts, in order to facilitate the efficient adminis-
B tration of the Municipal areas and to provide lighting, waterihg and
maintaining of public streets and places. The• duties of the Municipal •
Boards are specified in S.7 of the U. P. Municipalities Act. Under
S. 118 of the Act, the Municipal Board is empowered to manage
or control any property entrusted to its management and control. The
:
vesting of the property, in the Municipality is under S. 116 of the
c Act. S. 116 provides that subject to any special reservation made by
the Stak Government, all property of the nature specified in this sec-
tion and situated within the Municipality shall vest in iind belong to
the Board, and shall, with all property which may become vested in
the Board, be under its direction, management and control. Cl.(g)
relates to vesting of streets and is as follows : -
D

"All public streets and the pavements, stones and other
materials thereof, and also all trees erections, matenal9
implements and things existing or on appertaining to such
streets".
E
It may be noted that while under cl.(f) of S-116 all lands and otbec ---(
property trnnsferred to the board by the Government by gift, purcha'e
or otherwise for local public purposes vest in tbe Municipality, under
cl. (g), the streets vest only qua streets, and not as absolute property
with the Municipality. The word 'street' is defined under S.2 (23) as
F follows:-
Street means any road, bridge, footway, lane square, I
cpurt, alley or passage which .tbe poblic or any portion of the
public, has right to pass along, and includes, on eitber. side,
' the land upto the defined boundary ·
the drains or gutters and
G of any abutting property, notwithstanding the projection
over such land of any verandah or other superstructure".
'
It has been found that the property in dispute is Patri and
is a land which is within tbe defined boundary of the property
abutting into the road. Thus the property in question falls within the
H definition of the word 'street'. The question as to the nature of the right
that vest in the Municipality under S. 116(g) of the Uttar Pradesh
Municipalities Act will have to be considered. This Court in Municipal
U.P. STATE v. ATA MOHD (Kailasam, !.) 1101

Board. Ma11galur v. Sri Mahndeoji Maharaj('), had to consider the. A
nature of the right that vested in the Municipality over the streets,
Sll.bba Rao, J. (as he then was) after considering the decisions of the
Ellglis!1 Courts and the High Courts, summed up the law on this sub-
ject as follows : - •
•
. The inference that the side lands are also included in B
the public way is drawn easil;y as. the said lands are between
.... the metal road and the drains admittedly maintained by the
Municipal Board. Such a public pathway vests in the muni-
cipality, but the Municipality does not own the soil. It has
the exclusive right to manage and control the surface of the
soil and 'so mucil of the S'Oil below and of the space above c
the surface as is necessary to enable it to adequately main-
tain 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 tbe
highway, the owner of the soil i!l general remains the occu- D
pier of it and, therefore, he can maintain an action for tres-
pass against any member of the public who acts in excess of
his rights."
After referring to S.116(g) of the Uttar Pradesh Municipalities Act,
under which a public street vests in a Municipality, the learned Judge E
referred to a decision of a Division Bench of the Madras High Court
in S. Sundaram Ayyar v. The Municipal Council of Madura and the
Secretary of State for India in Council(') where the scope of the vest-
ing under the Madras District Municipalitie~ Act was dealt with. The
learned Judge extracted the head note from the Madras decision obser-
ving that it brought out the gist of the decision. The bead note runs as F
follows:-
"When a street is vested in a Municipal Council, such vesting
does not transfer to the Municipal authority the rights of the
owner in the site or soil over which the street exists. It
does not own the soil from the centre of the earth Wlque G
ad caelum, but it has the exclusive right to manage a!1d
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 adequataly 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." H
i l I [!965] 2 S. C. R. 242.
111 [1902] I. L. R. 25 Mad. 635.

,,.
1102 SUPREME COURT REPORTS [1980] 3 s.c.R.

A The view taken by the Division Bench of the Madras High Court
was that though the street vested in the Municipal Council, it does
not transfer to the Municipality the rights of the owner in the site or
soil over which the street exists. The question has been dealt with at
some detail in the Madras decision and as it has been approved by
this Court, it may be usefully referred to. The High Court while
B obsetving that if the land itself had been acquired by the Municipality,

..
either by purchase or otherwise and roads and drains formecl thereon,
the Municipality would have been the owner of the land 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 highW'<1y will
continue vested, subject only to ·the burden of the highway, in 'the
c State or the respective owners of the land on. either side of the highway
ad medium filum, or in any other person who may have dedicated the
street to the public as the case may be. The Court after pointing
out that the Madras Municipal Act was a modelled after the English
Metropolis Local Management Act, 1855 referred to the Englisll
cases which dealt with the vesting of the street in the Municipality in1 ·
D
observed :
"The conclusion to be drawn from the English case law
is that what i~ vested in urban authorities under statutes
, similar to the District Municipalities Act, is not the land over
which the street is fonned, but the street qua street and that
E the property in the street thus vested in a Municipal Couucil
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 by being excluded by notification of
F Government under section 23 of Act IV of 1884 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."
It is, therefore, clear that when a street ceases to be a highway by its
G being· diverted to some other use, the interest of the corporate body
determiµcs. After referring to the decisions of the Hi>gh Courts in
India, it expressed its concurrence with the decisions in Chairrr.an of
the Naihati Municipality v. Kishori Lal Goswami('), Madhu Sudhun
Kunda v. Pramode Nath Roy(') and Nihal Chand v. Azmat A Ii
Khan(") and concluded that the nature or the right that vested in the
H (I) !LR 13 Cal . 171
<2) !LR 20 Cd. 632
\.l) !LR 7 All. 362
U.P. STATE v. ATA MOHD (Kai/asam, J.) 11 o3

Municipality as regards public streets thyre is no disposal by the Indian A
Legislature of any land or hereditament vested in the Government. What
is vested in the Municipality under S. 116(g) is the street qua street
and if the Municipality put the street to any other user than that for
which it was intended, the State as its owner, is entitled to intervene and
maintain an action and to get any person in illegal occupation evicted .
• We accept the contention of Mr. Dixit, learned counsel for the State of R'
U .P. that the State is the owner and in the circumstances of the case
entitled to maintain action for eviction of the respondent. The view
•.. taken by the High Court is erroneous. The result is that the appeal
by the State is allowed with costs and there will be decree in favour
of the plaintiff as prayed for.

S.R. Appeal allowed.