# [1966] Supp. 1 S.C.R. 118

- **Citation:** [1966] Supp. 1 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 1966-03-31
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1966-supp-1-s-c-r-118-3788
- **Pages:** 5

## Headnote

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TillRUNAGAR PANCHAYAT
v .
. MADURAI· CO-OPERATIVE" HOUSE
CONSTRUCTION
·
SOCIETY
. March 31, 1966
. (K. SUBBA RAO AND V. RAMASWAMI, JJ.]
Madras Village Panchayats Act (10 of 1950). s. 5~Scope of.
The respondent-Society formed a housing colony, laid out pub-.
lie roads and set apart public common places for parks, play-grounds,
schools, library, hospital and club for . the benefit of. the :members of
the colony. The respondent passed a resolution for handing over
the roads arid the other common places to the appellant-Panchayat,
but later, passed another resolution· cancelling it. The appellant,
thereupon, filed a suit for an injunction restraining· the respondent
from obstructing the appellant in the exercise of its statutory. duties
in relation to the roads and other common places. The High Court, on
appeal, held that the streets and. the roads in the colony alone
would vest in the zppellant under the Madras Village Panchayats
Act, 1950 and that.· an injunction could be granted only with respect to them, but not, with respect to the other amenities which the
respondent had provided for the residents of the colony. . ·
In appeal to this Court, it· was ·contended· that th~ amenities
excluded would also vest in the appellant under s .. 58 "of the Act,
especially because they had been dedicated to the public.
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HELD: The scope of the section must be confined to communal
property and income of the Panchayat which, by custom, belong to
the villagers in common, or, has been administered for their benefit
as a matter of custom. Therefore, the section cannot be extended to
amenities such as parks, play-grounds etc. provided by the respondent for the benefit of the members of the colony; and dedication
is not a relevant_ circumstance in considering its scope and mean·
ing. [121 E-F; 122 A-BJ. · •
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OVIL APPELLATE JURISDICTION: Civil. Appeal No .. 374 of
1965: .. ··· ... · •..
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. Appeal by special' leave from the j~dgment and de~ree dated
August 9, 1963 of the Madras High Court in LP.A. No. 45 of 1962.
.
.
-
.
A. V. Narayanaswami Iyer and S. Venkatakrishnan, for the
appellant.
A. K. Sen, N. Natesan and R. Ganpathy Iyer for the respond·
ent.

## Text

JJS
'.
TillRUNAGAR PANCHAYAT
v .
. MADURAI· CO-OPERATIVE" HOUSE
CONSTRUCTION
·
SOCIETY
. March 31, 1966
. (K. SUBBA RAO AND V. RAMASWAMI, JJ.]
Madras Village Panchayats Act (10 of 1950). s. 5~Scope of.
The respondent-Society formed a housing colony, laid out pub-.
lie roads and set apart public common places for parks, play-grounds,
schools, library, hospital and club for . the benefit of. the :members of
the colony. The respondent passed a resolution for handing over
the roads arid the other common places to the appellant-Panchayat,
but later, passed another resolution· cancelling it. The appellant,
thereupon, filed a suit for an injunction restraining· the respondent
from obstructing the appellant in the exercise of its statutory. duties
in relation to the roads and other common places. The High Court, on
appeal, held that the streets and. the roads in the colony alone
would vest in the zppellant under the Madras Village Panchayats
Act, 1950 and that.· an injunction could be granted only with respect to them, but not, with respect to the other amenities which the
respondent had provided for the residents of the colony. . ·
In appeal to this Court, it· was ·contended· that th~ amenities
excluded would also vest in the appellant under s .. 58 "of the Act,
especially because they had been dedicated to the public.
I
.
-
. -
•.
HELD: The scope of the section must be confined to communal
property and income of the Panchayat which, by custom, belong to
the villagers in common, or, has been administered for their benefit
as a matter of custom. Therefore, the section cannot be extended to
amenities such as parks, play-grounds etc. provided by the respondent for the benefit of the members of the colony; and dedication
is not a relevant_ circumstance in considering its scope and mean·
ing. [121 E-F; 122 A-BJ. · •
·
· .
·
OVIL APPELLATE JURISDICTION: Civil. Appeal No .. 374 of
1965: .. ··· ... · •..
i
·
..
·
· .
. Appeal by special' leave from the j~dgment and de~ree dated
August 9, 1963 of the Madras High Court in LP.A. No. 45 of 1962.
.
.
-
.
A. V. Narayanaswami Iyer and S. Venkatakrishnan, for the
appellant.
A. K. Sen, N. Natesan and R. Ganpathy Iyer for the respond·
ent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from
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the judgment and decree of the Madras High Court dated August 9,
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1963 in Letters Patent Appeal No. 45 of 1962.
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THIRUNAGAR PANCHAYAT v. COOP. HOUSE SOCY. (Ramaswami, J.)
119
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The suit which is the subject-matter of this appeal was filed by
the Tirunagar Panchayat, hereinafter called the 'Panchayat', against
the Madurai Co-operative House Construction Society (hereinafter
called the 'Society') in the District Munsif's Court of Tirumangalam. The Tirunagar Colony has been formed by the Society. The
Colony consists of about 300 houses and its total population exB
ceeds J ,500. At its inception the colony was within the jurisdiction
of the Tirupparakundram Panchayat. On February 21, 1955 the
Tirunagar colony was excluded from
Tirupparankundram Panchayat and was declared as a separate village and was constituted
as a separate Panchayat known as Tirunagar Panchayat. In the formation of the colony the Society has laid out and set apart and formed public roads, parks, play grounds and other public common
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places. There was a change in the Board of Directctrs of the defendant-Society and as a consequence of this change the Society
passed a resolution on July 23, 1956 cancelling its previous resolution handing over the roads, streets and scavenging arrangements
to the Panchayat. The Panchayat therefore filed a suit-0.S. 38 of
1957, in the District Munsif's Court of Tirumengalam for an injunction restraining the Society and its servants from obstructing
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and int~dedr:ig with its lawful exercise of statutory duties relating
to the roads and streets in Tirumgar and cleaning of latrines, public and private, lighting the houses and roads and making arrangements for the civic needs of the village of Tirunagar. The Society
contested the suit on the ground that the constitution of the Pan·
chayat was illegal as the provisions of the Madras Village Panchayats Act (Madras Act 10 of 1950), hereinafter to be called the
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'Act', had not been complied with. The Society also contended that
the public cannot use the roads or streets as a matter of right, that
the entire colony was a closed one and no outsider except the members of the Society had the right to enter the colony and that the
Parks, central oval, play grounds and open spaces were the exclusive properties of the Society. The contentions of the Society were
all over-ruled by the trial court and a permanent injunction was
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granted to the plaintiff-Panchayat, as prayed for. The decision of
the trial court was affirmed by the Subordinate Judge of Madurai
in A.S. 92 of 1958. The Society took the matter in Second Appeal
to the High Court. The appeal was partly allowed by Ramakrishnan,
J. who held that the streets and roads in Tirunagar colony alone
would vest in the Panchayat and that the injunction passed by the
lower appellate court should be confined only to streets and roads
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in the colony and should not be extended to any other place like
the parks, oval park, play grounds, schools, library or club and such
other amenities which the Society had provided for the residents
of the colony. The decision cf Ramakrishnan, J. was affirmed by
the High Court in Letters Patent Appeal and the injunction granted
by the lower courts was accordingly confined to roads and streets
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and the cleaning of public and private latrines, and the decree of
the lower courts was set aside so far as the injunction relat,d to
the parks. play grounds, bus-stand and other public places.
L/S5SCI-!O
120
St:PRE~K COt'RT REPORTS
[J 966] SUPI'.S.O .II,
The question presented for determination in this appeal is
whether there is a statutory vesting in the panchayat of the parks,
play grounds, schools, libraries and other public places which the
Society provided for its members and whether the Panchayat is
entitled to a permanent injunction restraining the Society and its
servants in the manner decreed by the trial court.
On behalf of the appellant reference was made toss. 56 and 58
of the Act relating to vesting of the property in the Panchayat.
Section 56 of the Act reads as follows: -
"56. (!) All public roads in any village (other than
district roads and roads which are classified by the Government as national or State highways), shall vest in the panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefore, all sewers. drains, drawings 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.
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Section 58 is to the following effect: -
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"Any property or income which by custom belongs
to, or has been administered for the benefit of, the villagers
in common, or the holders in common of village land
generally or of lands of a particular description or of
lands under a particular source of irrigation shall vest in
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the panchayat and be admini,tered by it for the benefit of
the villagers or holders aforesaid."
The rules framed under the Co-operative Societies Act for the
formation of House Building Societies required that when an area
is set apart for a residential colony provisions for schools, markets,
theatres. hospitals, clubs, religious places etc. should be made in
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the layout. Reference was made, on behalf of the appellant, to the
layout plan Ex. A-44 for the Tirunagar Housing colony. There is
evidence in this case that the Government had assigned to the House
Bui~ding Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc. It was submitted
cm behalf bf the appellant that the parks. play grounds. hospitals,
schools etc. of the Tirunagar Housing Colony would vest in the PanG
chayat under s. 58 of the Act. We do not consider that there is any
justification for this argument. Under s. 56 of the Act all 'public
roads' in any village shall vest in the Panchayat together with al!
pavements, stones and other materials thereof. all sewers, drains.
drainage works, tunnels and culvert,, whether made at the cost of
the panchayat fund or otherwise. Under s. 2(20) of the Act a
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'public road' means "any street, road, square, court, alley. passage,
cart-track, footpath or riding-path, over which the public have a
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THIRUNAGAR PANCHAYAT v. COOP. HOUSE SOOY. (Ramaswami, J.)
121
right of way". Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature
has provided that any property or income which by custom belongs
to the villagers in common, or the holders in common of village land
generally or of lands of a particular description shall ves~ in the
panchayat. The legislature has further provided m this section that
any property or income which by custom has been ad~inistered for
the benefit of the villagers in common or the holders m common of
village land generally or of lands of a particular description shall
vest in the panchayat and be administered by it for the benefit of
the villagers or the holders aforesaid. In enacting s. 58 of the Act
the legislature has made a provision for vesting of two kinds of property or income: (]) property or income which by custom belongs
to the villagers in common or the holders in common of village land
generally or of lands of a particular description, and (2) property or
income which has been administered by custom for the benefit of
the villagers in common or the holders in common ocf village land
generally or of lands of a parficular description. Having regard to
the grammatical structure and the context, we are of opinion that
the expression "by custom" qualifies not only the property or income which belongs to the villagers but also property and income
which has been administered for the benefit of the villagers in common. It is manifest that s. 58 provides for the vesting of such property and income to which the viliagers have acquired title as a
matter of custom or which has been administered for the benefit
of the villagers as a matter of custom. It was argued on behalf of
the appellant that if parks or play grounds or markets had been
dedicated to the public the Panchayat would acquire title to such
properties under s. 58 of the Act. We do not think that dedication
is a relevant circumstance in considering the scope and meaning of
s. 58 of the Act. In the enactment of this section the legislature did
not contemplate that parks, play grounds, schools or temple or
hospital dedicated to the public should vest in the pan cha ya t merely
by the fact of such dedication. What is required by s. 58 for the·
purpose of vesting is the proof of custom by which the villagers in
common acquire title to any property or income. Vesting of rights
takes place under s. 58 if there is proof of customary right Qlf administration of any property or income for the benefit of the villagers
in common. Unless therefore there is proof of customary right, the
Panchayat cannot claim title to the property or income ad
ministered for the benefit of the villagers in common.
For
example, the Society may have established a library or a
social club or a school for the benefit of its members
Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the
residents of the village. In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat
because of the provisions of s. 58 of the Act. It cannot be supposed
that such a startling and unjust result was contemplated by the
L/S5SCI-IO(a)
122
s1:rRl'lllB C'Ol;HI' J\F.POIUS
[1966) ScPP s.C.R.
legislature in enacting s. 58. We are accordingly of the opinion that
the scope of s. 58 of the Act must be confined to communal property
and income of the panchayat which by custom belongs to the
villagers in common or has been administered for their benefit as
a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools
provided by the Society for the benefit of the members of the Tirunagar colony.
For these reasons we hold that the judgment and decree of the
High Court in Letters Patent Appeal No. 45 of 1962 is correct and
this appeal must be dismissed with costs.
Appeal dismissed.
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