P L D 1955 Lahore 459 (PLP)

KAIKAUS, J.--‑In November, 1949, the Sialkot Municipal Committee served notices on Ahmad Din and Siraj Din under section 175, Punjab Municipal Act, to remove a verandah in Tahsil Bazar which is an encroachment on a public street within the municipal area to the extent of 19 ' x 6'. This verandah was originally the joint ownership of Ahmad Din and Siraj Din but had been partitioned so that they were owners of separate portions at the time when the notices were served. The notices offered a compensation of Rs. 82‑13‑0 to each of the two persons mentioned above. It was stated in the notices that the building had been constructed with the sanction of the Municipal Committee. A period of six weeks was allowed for the demolition arid it was stated that in case of default the Municipal Committee would itself demolish the building. On the 23rd of December, 1949, Ahmad Din and Siraj Din filed separate suits for permanent injunctions against the Municipal Committee restraining the Municipal Committee from demolishing the construction. In these suits the notices were impeached as invalid on the following grounds:‑ (1) That the structures were not on street but on land owned by the plaintiffs. (2) Sanction once given was not liable to be revoked. (3) The Municipal Committee was estopped on account of the previous sanction. (4) The previous sanction had been granted not under section 172 but under section 193, and therefore proceedings could not be taken under section

175. The suits were consolidated as they raised identical issues The learned Civil judge who heard the suits dismissed them ; but on appeals the learned District Judge remanded the suits to the trial Court after framing certain issues. There were appeals against the remand orders to the High Court and the High Court made certain amendments in the issues framed by the learned District judge but otherwise dismissed the appeals On remand the learned Civil judge reached the conclusion that the land beneath the structures was owned by the Government and not by the plaintiffs. On the other points mentioned above also he found against the plaintiffs and dis missed the suits The learned District Judge dismissed the appeals filed by the plaintiffs and Ahmad Din and Siraj Din have filed second appeals to this Court. The appeal of Ahmad Din is 166 of 1953 and the appeal of Siraj Din is 251 of 1953 Both these appeals will be disposed of by this order. I will take up the four points mentioned above one by one. On the first point there is a finding of fact by the two lower Courts which is not open to challenge in second appeal except on a ground which may in law vitiate the finding. No such ground has been put forward. There is, however, one matter to be considered and that is this : should this land be considered a street even now ? Here I may refer in brief to the history of the land under‑Death the structure. It appears from the khasra paimaish of 1872 that this land was part of a road the owner of which was shown as "Sarkar." In 1926 four walls were built on this land and the adjoining land which is owned by the plaintiffs, without permission of the Municipal Committee. At this notices were issued under sections 172 and 195 of the Punjab Municipal Act. The plaintiffs appear to have moved the Municipal Committee for a reconsideration of the notices. The matter was reconsidered and the notice under section 172 was withdrawn while the notice under section 195 was maintained. It does not appear what was the result of the issue of notice under section 195, and the next event which we know of is an application put in by the plain tiffs in 1930 for being allowed to build on the land. The Chairman of the Municipal Committee made a report on this application that the applicants wanted to encroach on munici pal land. The Sanitary Sub‑Committee recommended that the application be rejected. However, by a resolution dated the 22nd of April, 1930 (Exh. P. C.) the application was accepted. Learned counsel for the appellants urges that as the site in question is no longer used as a street no notice under section 175 could have been issued. A look at the wording of section 175 of the Municipal Act will show that this argu ment is untenable. Section 175 runs "The committee may, subject to the payment of reasonable compensation, by notice, require the owner or occupier of any building within a period of not less than six weeks, to be specified in such notice, to remove or alter any balcony, projection, structure or verandah, erected with the sanction of the committee, overhanging, projecting into or encroach ing on any street or into or on any drain, sewer or aqueduct therein:' It is clear that we are only concerned with the original condi tion of the place which has been allowed to be encroached upon. If at the time when the encroachment was allowed by the municipal committee the place in question was a street f a notice under section 175 can be issued. Learned counsel for the appellants relies in this connection on Jagadhri Muni cipality v. Joti Pershad (A I R 1940 Lah.261). In that case the municipal committee had leased a portion of the public street for the cons truction of a chabutra. Subsequently, the municipal committee issued a notice of demolition under section 175 Punjab Muni cipal Act and a suit was filed impeaching that notice. Bhide, J., after reference to the definition of a street, held that as the place was no longer a street a notice under section 175 was incompetent. The distinction between that case and the present is that the land had in that case been leased by the municiple committee for a use other than as a street. Bhide, J. evidently proceeded on the assumption that there was a valid lease of the site for such a use and according to the principle, which I will presently state, the judgment is correct though it does not cover the present case. An unlawful conversion of a street or a portion thereof to a use other than a street cannot, apart from the question of adverse possession with which I am not here concerned, affect the powers of the municipal committee to take such action as the law enables it to take in respect of a street and such conver sion may be overlooked when determining whether it is a street or not. So far as lawful conversions are concerned, if the municipal committee simply permits an encroachment on a street that does not change the nature of the site upon which encroachment is allowed. If, however, the municipal committee leases out any portion of the land (and the lease is valid the land will not be a part of a street as long as the lease lasts, for a lease is a transfer of property and during its continuance the lessee has a right to occupy it. In such a case the municipal committee shall have to take steps to terminate the lease (if it is legally possible) and it is only at the termination of the lease that the land will reassume its character of a street, provided, of course, that the street, a part of which was leased, continues to exist. I may point out here that the powers of a municipal committee in respect of streets are limited and it cannot lease out any street except in accordance with section 169 of the Municipal Act, according to which a street or a portion thereof may be leased out if it is no longer required for use as a street. On the question as to whether the sanction was liable to be revoked there is little to be said in favour of the appel lants. The question of revocation really does not arise. Section 175 applies to a case where there has been encroach ment on a street with the sanction of the municipal committee. In such cases the municipal committee is entitled to issue a notice of ejectment on payment of compensation. As regards the third point learned counsel is unable to refer to any authority which may estop the municipal committee from pleading that the land beneath the structure is a street. It cannot be said in the present case that the municipal committee made any mis‑reprsentation of facts which would debar it from repudiating that representation. All that can be said is that the municipal committee accepted the claim of the applicants that it was not municipal land. That 'is only an admission which does not create an estoppel. I may point out here that the municipal committee was not entitled to allow the plaintiffs to convert the land permanently to their own use. The position of the municipal committee in respect of the property that vests in it is that of a trustee. It cannot exceed its powers‑under the Act and it is also bound to exercise its powers under the Act for the protection of the public. If the municipal committee, honestly believing that this land belonged not to them but to an applicant for building, allowed the application for building that cannot possibly affect the rights of the public in the street which has been allowed to be encroached upon. If, on the other hand, some municipal commissioners were to act mala fide and, knowing full well that the land beneath the structure did not belong to the applicant but was part of a street, allowed the applicant to build on it, the public would have a stronger case and the mala fide action of the municipal commissioner could not be allowed to adversely affect their interests. So in either case the applicant cannot benefit by a wrong resolution allowing him to build on a street. I may here point out that there is provided in section 175 a kind of a safeguard for any loss that may he caused to a person to whom permission has been granted. The section provides for reasonable compensation. It is always open to a person to whom a notice has been issued to show that the compensation offered is not reasonable and that a greater injury has been inflicted upon him than would be compensated by the amount offered. An ingenious argument has been put forward in connection with point No.

4. So far as section 175 is concerned it is urged that it does not apply because that section refers only to a sanction which has been granted on the assumption that the structure is being allowed on a street. It is urged that in this case the sanction was granted under section 193 as if the land belonged to the plaintiffs. If I were to accept this argument, it would mean that the building would be without sanction, so far as section 175 is concerned. But it would also be without sanction for the purpose of section 172 in accord ance with which the municipal committee may issue a notice for demolition of any encroachment on a street which is without sanction (provided that if the notice is issued more than three years after the encroachment, reasonable com pensation is offered). Learned counsel argues that it cannot be said in the present case that the encroachment was without permission within the meaning of section

172. Shortly stated, the contention is that whereas the present structure is without sanction so far as section 175 is concerned, it is with sanction so far as section 172 is concerned. According to learned counsel whenever the municipal committee, without knowing that a structure is being built on a street, allows that structure to be raised, the municipal committee would have no remedy by issue of a notice of demolition and could only file a civil suit. I am unable t9 accept that the permissions referred to in sections 172 and 175 have different meanings. These two sections are complementary and the permissions referred to in both must be interpreted in the same sense. These two sections taken together provide that if there is an encroachment on a street without permission of the muni cipal committee, the latter shall have jurisdiction to get it demolished, provided that three years have not passed, in which case it shall offer compensation and if there is an encroachment with permission, the municipal committee shall have the power to issue a notice of demolition but it must at the same time offer compensation. Assuming that in the present case the encroachment was without sanction, the notice would have to be under section 172 and as a period of more than three years had elapsed it would offer compensation. In the present case notices were issued under section 172 as well as section

175. The notice under section 172 did not offer compensation. Assuming that those notices are not valid and that, as I have said above, I should regard it as a building without sanction, I would still regard the notice under section 175 valid, although it should he under section

172. I do not attach any great importance to the mention of section 175 instead of section 172, they being connected sections. All that is needed is that the person who has built should be offered compensation for the structure which he built without permission more than three years before. The mere reference to a wrong section would not invalidate in a case where the sections are so co‑related. There is no doubt that it is rather hard on the plaintiffs that the structure in question which is part of a house which was built more than 25 years ago should be demolished. I find that the road on this point is even now 34 feet wide. It also appears from the evidence that the road has been encroached upon pot only by the plaintiffs but by other persons too against whom no action has been taken. As the width of the road is still adequate, I asked learned counsel for the municipal committee why they did not accept some compensation instead of getting the structure demolished. He said that as the land was found to belong to the Government and not to the municipal committee, it is only the Government who could accept com pensation in lieu of demolition. He referred me to a notifica tion by the Government that in cases where Government land had been encroached upon, the parties should approach the Government who could on receipt of compensation allow the encroachment to stand. I think the proper course for the plaintiffs is to apply to the Government with a prayer for acceptance of compensation for the land underneath the structure. These appeals are without force and are dismissed with costs. A. H. Appeal dismissed.