Encroachment on public road-power of municipal council to remove encroachment

 It is apparent that
their individual grievance cannot be compared with public injury
and in absence of even a prima facie right in their favour, they
are not entitled to grant of temporary injunction. Insistence upon
observance of "due procedure" by these Respondents is totally

unwarranted. Even if all plaint allegations are presumed to be
true, the same fall short to make out any case of legal injury in
unsustainable.

Appellate court ought to have noticed that an
action to be binding on body corporate like Petitioner or to
operate to the prejudice of general public must be stated and
shown to be in accordance with provisions of Municipal Act. The
Appellate Court was duty bound to notice this aspect and ought
not to have confused possession only as conferring any legal right
upon Respondents. Resolution of Municipal Council or any of its
members or its chief officer cannot make their action binding
unless and until it is in accordance with provisions mentioned
above. Procuring of some trading licence or no objection from

Municipal Council, paying some charges to it towards such
occupation of land does not create any legal relationship between
Municipal Council and such person.
Influential traders or
businessmen may try to take undue advantage of their position by
getting any orders or resolutions from such bodies and therefore
only, legislature has circumscribed those powers by providing for
It is apparent that

appropriate measures by way of control.
Appellate Court has exercised jurisdiction not available to it in the
matter by protecting unauthorised and apparently illegal
possession of Respondents to the prejudice of public at large and
has hampered the development work specified by Development
Plan. It is further to be noticed that Respondents after receipt of
notice to remove encroachment from Municipal Council, till today
got sufficient time to make alternate arrangements but then as
already stated above the wish to prosper at the cost of general
public which cannot be tolerated at all.


NAGPUR BENCH
WRIT PETITION NO. 886 OF 2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Municipal Council, Pusad,

Versus
Kundanal Mohanlal Jaiswal,


CORAM : B.P. DHARMADHIKARI, J.

DATE OF PRONOUNCING THE JUDGMENT : JANUARY 31, 2007.
Citation; 2007 (3)Bom C R 384 (Bom)

Petitioner before this Court is Municipal Council, a
local authority constituted under the provisions of Maharashtra

Municipalities, Nagar Panchayats and Industrial Townships Act
1965 (referred to as Municipal Act hereafter) for municipal
administration of Pusad town in Yavatmal district. Respondents
1 to 3 before this Court are occupiers of temporary structures
which Petitioner wanted to remove as encroachment for
undertaking the earmarked development work of road widening
and erection of a shopping centre. Accordingly on 5th Oct. 2005
it served notices upon them under section 181 of Municipal Act
and called upon them to remove encroachment.
Respondents
challenged said notices by filing Regular Civil Suit 150/2005 and
in said Civil Suit they sought temporary injunction. Second Joint
Civil Judge Junior Division at Pusad rejected that prayer on
18/10/2005 and this rejection was challenged by them in Misc.

Civil Appeal 26/2005 under Order 43 Rule 1 of CPC. Additional
District Judge, Pusad by judgment dated 29/10/2005 allowed
that Appeal and directed expeditious disposal of Civil Suit while
protecting possession of Respondents.
Municipal Council has
questioned the judgment in present writ Petition. Respondents
had filed caveat and they filed their submissions on 12/4/2006.
ig
On 14/12/2006 this court while issuing notice ordered that
Petition shall be disposed of finally at admission stage itself.
Accordingly I have heard Advocate N.W. Sambre for Petitioner
and Advocate K.S. Narwade for respondents finally by making
rule returnable forthwith.
2.
Advocate Sambre contends that Appellate Court has
given temporary injunction only because it has found respondents
in possession. He argues that possession of respondents is not
legal and also not in accordance with provisions of Municipal Act.
He further states that land has admittedly vested in Petitioner
and is required by for starting the work of road widening and also
for building of shopping centre. He argues that these lands are

reserved for this purpose in town planning and work to be
undertaken is in public interest. Respondents have no right to
continue in possession of said land for having their business. He
points out that lands are not alloted to Respondents in
accordance with requirements of Municipal Act or Maharashtra
Land Revenue Code. He invites attention to various judgments to
ig
state that the Appellate Court has not correctly appreciated the
controversy and has given temporary injunction without noticing
that there is no legal right in respondents to continue in
possession. Mere long possession or payment of property tax,
water tax or some rent to Municipal Council or having certificate
is in relation to establishment does not establish any prima facie
case in their favour. He also invites attention to provisions of
Municipal Act for said purpose.
Advocate Narwade on behalf of respondents states that
respondents are in possession since 1971 and shop or business on
sites in dispute is their only source of livelihood. He states that
Municipal Council is recovering rent from them regularly and
they are also paying property tax, electricity charges, water tax
::: Downloaded on - 17/12/2013 21:02:32 :::
5
etc. He states that they are also having valid licence under
Bombay Shop & Establishment Act, 1948. He invites attention to
resolution of Municipal Council dated 7/12/1987 to make
provision of alternate site for them before asking them to vacate.
He also invites attention to similar condition put in by Collector,
He also relies upon judgments

order dated 27/5/1989.
Yavatmal while allotting in these lands to Municipal Council vide
considered by Appellate Court for supporting said order.
According to him Section 181 of Municipal Act has no application
in the facts of present case.
Lastly he points out that suit is
already expedited by Appellate Court and hence this Court should
not interfere in writ jurisdiction. He submits that rights of parties
should be allowed to be worked out by Civil Court and at the
most said suit should be made time bound.
3.
Appellate Court has relied upon AIR 1994 Bombay
189= 1994 Mh.L.J.806 -- M. M. Sangtani v. Dhule Nagar Palika
(Municipal Council), Dhule. Writ Petitioners in said case were
possessing tenements belonging to the Municipal Council, Dhule

for carrying on petty business. for more than 20 years. The
petitioners also contended that they had licence from the
Municipal Council, Dhule under the shops and Establishments Act
for carrying on their business in the tenements in question & that
they were paying taxes to the Municipal Council from time to
On 1st March, 1987, some officers of the Municipal
time.

Council, Dhule along with a number of workers having come to
the premises of the petitioners for demolition of the same on the
ground that they were encroachers on the public road, the
Petitioners instituted suits in the Court of Joint Civil Judge,
Junior Division, Dhule and also sought
temporary injunction.
The trial Court was satisfied that it was a fit case & by order
dated 7th March, 1987 temporary injunction was issued to the
petitioners as prayed for by them. On appeals of Dhule Municipal
Council the 3rd Additional District Judge, Dhule by a common
judgment and order, dated 27th August 1990 set aside the order
of the trial Court of 7th March 1987, granting injunction in
favour of the petitioners . The learned Appellate Court did find
that prima facie case stood in favour of the Plaintiffs.

It , however, observed that irreparable harm and inconvenience s
may not be sufficient criteria for granting an interim injunction.
Appellate Court held that while considering the point of balance
of convenience, it was
necessary to be see the surrounding
prevailing circumstances and welfare of the general public at
indispensable to
protect the rights of
large; that it was

community rather than the individual rights. It is in this
background that following observations are made by this Court:--
I
have
carefully
"7.
considered
the
rival
submissions. I fully agree with the counsel for the
respondent that the object of demolition cannot be
totally disregarded in considering the prayer for
temporary injunction. But, I am also conscious of the
fact that where valuable rights of the citizens are
involved and shops in their occupation for long 20
years are sought to be demolished, the courts are
entitled and in fact required to look into the balance
of convenience of the shop-owners. Prima facie
merit of the case and balance of convenience of the
parties cannot be given a good-bye on the ground
that "what is sought to be done is for the happiness
of many". The principles governing grant of

temporary injunction are too well settled to need
reiteration. Ordinarily an injunction should be
issued if the court is satisfied that (a) a prima facie
case exists (b) the balance of convenience is in
favour of granting injunction and (c) if injunction is
not granted irreparable injury would be caused to
the party praying for injunction which cannot be
compensated in terms of money. An interlocutory

injunction should normally be granted to restrain an
apprehended or threatened injury where the injury
is certain and imminent or where the mischief likely
to be done is of an overwhelming nature viz.
demolition and destruction of property.
In the instant case I am, therefore, of the clear
8.
opinion that the approach of the 3rd Additional
District Judge, Dhule in the matter was not correct.
Having accepted the prima facie contentions of the
petitioners regarding long standing possession of the
petitioners, issue of licence to them under the Shops
and Establishments Act for all these years, granting
electric connection etc. and also having recorded a
categorical finding that there was a prima facie case
in favour of the petitioners for grant of interim
injunction, the Additional District Judge was not
justified in setting aside the order of the trial Court

philosophy propounded by him in his order."
granting temporary injunction on the basis of the
Govindbahi R. Chauhan vs. Gokulchand J. Agrwal, 1996(2)
Mh.L.J. 1062 appears to be the judgment in dispute between
private parties. It has been held there that a trespasser in settled
possession can seek temporary injunction to protect his

possession till he is dispossessed in accordance with law.
However it has also been clarified there that respondent No 1
Shri Agarwal was not precluded from prosecuting the remedy
available to him for dispossessing the trespasser in accordance
with law. It is apparent that this ruling cannot have application
when local authority is exercising its statutory power to remove
encroachers.
4.
In Vinayak S. Bapat vs. Superintendent Of Police,
Chandrapur & Others 2006(2) Mh.L.J.(Crim.) 97 = 2005(5) AIR
Bom.R. 328 Division Bench [J. Shri J.N. Patel & myself] of this
Court has considered this issue as under :--
"26) One of the excuses pleaded by respondent

subordinate Courts.
No 3 Municipal Council is pendency of issue in
The parties to these court
Hence it is not
proceedings are not before us.
possible for us to make any effective or binding
comment on any of these proceedings. However the
law on the point in relation to encroachments or
hawkers is considered above and were also made
reference to judgment of Hon Apex Court in case of

Ahmedabad Municipal Corporation v. Nawab Khan
Gulab Khan reported at
AIR 1997 S.C. 152
=1997(11)SCC 121 (supra). In paragraph 27 below
we have also extracted the important observations in
this respect. It is apparent that plaintiff or applicant
who wants his encroachments on public Road to be
protected by any interim order has to satisfy the
court about existence of any legal right in his favour
to maintain such encroachment during pendency of
suit and for that purpose, he has to point out some
title in him authorising him to occupy the portion of
public Road or footpath etc.. In the absence of any
such legal right, the encroacher cannot be permitted
to obstruct the free flow of traffic or cause
inconvenience to public at large.
Mere long
possession or user cannot be an answer to tilt the
balance in his favour when in other pan of balance,

the Court has to way interest of public at large.
Even the threat of loosing source of livelihood
applicant.
cannot be, by itself a circumstance in favour of such
He encroached upon public road or
footpath knowing fully well that nobody can clothe
him with authority to occupy and use it for his
private gain.
He cannot feign ignorance of
provisions of Law and try to raise equity in his

favour. Court of Law cannot permit such wrongdoer
to continue to injure public at large during pendency
Hence, his plaint itself must contain
of suit.
sufficient material and facts to satisfy the court that
the convenience & interest of public at large must
suffer because of legal right in his favour, which will
be a very rare case.
27.
Ahmedabad Municipal Corporation v. Nawab
Khan Gulab Khan reported at AIR 1997 S.C. 152
=1997(11)SCC 121 (supra) is the judgment which
lays down law on the point of removal of encroacher
from public lands/road. Following observations
therein are important: -- "9. The Constitution does
not put an absolute embargo on the deprivation of
life or personal liberty but such a deprivation must
be according to the procedure, in the given
circumstances, fair and reasonable. To become fair,

just and reasonable, it would not be enough that the
procedure prescribed in law is a formality. It must be
pragmatic and realistic one to meet the given fact-
situation. No inflexible rule of hearing and due
application of mind can be insisted upon in every or
all cases. Each case depends upon its own backdrop.
The removal of encroachment needs urgent action.
But in this behalf what requires to be done by the

competent authority is to ensure constant vigil on
encroachment of the public places. Sooner the
encroachment is removed when sighted, better
would be the facilities or convenience for passing or
re-passing of the pedestrians on the pavements or
footpaths facilitating free flow of regulated traffic on
the road or use of public places. On the contrary, the
longer the delay, the greater will be the danger of
permitting the encroachers claiming semblance of
right to obstruct removal of the encroachment. If the
encroachment is of a recent origin the need to follow
the procedure of principle of natural justice could be
obviated in that no one has a right to encroach upon
the public property and claim the procedure of
opportunity of hearing which would be a tardious
and time-consuming process leading to putting a
premium for high-handed and unauthorised acts of

encroachment and unlawful squatting. On the other
hand, if the Corporation allows settlement of
encroachers for a long time for reasons best known
to them, and reasons are not far to seek, then
necessarily a modicum of reasonable notice for
removal, say two weeks or 10 days, and personal
service on the encroachers or substituted service by
fixing notice on the property is necessary. If the

encroachment is not removed within the specified
time, the competent authority would be at liberty to
have it removed. That would meet the fairness of
procedure and principle of giving opportunity to
remove
the
encroachers.
encroachment
On
their
voluntarily
resistance,
by
the
necessarily
appropriate and reasonable force can be used to
have the encroachment removed. Thus considered,
we hold that the action taken by the appellant-
Corporation is not violative of the principle of
natural justice."
It was stated in the affidavit before Hon'ble
Apex Court by Municipal Corporation that they are
giving 21 days notice before taking action for
ejectment of the encroachers. That procedure, was
held to be fair procedure and, therefore, the right to
hearing before taking action for ejectment was

&
found to be not necessary in the said facts
situation. Requirement of following the procedure
for eviction of encroacher was held to be necessary
only when the Municipal Council did not act
immediately and
allowed such
encroacher
to
continue in wrongful occupation for quite some
time. In the facts of present case respondent No 3
and
action
for
removal
of
ig
immediately
Municipal Council has stated that it is acting
encroachment is being taken within a day or two. If
any person has got any grievance against any such
encroachment on public land or road, the Authority
proposed by us below can examine the said issue in
the light of guidelines laid down by Hon'ble Apex
Court above."
This judgment of Division Bench therefore clearly goes to
show paramount importance given to public convenience &
public at large in such matters.
Court while extending any
protection to such person who is alleged to have committed
encroachment, has to record of finding of legal right in his favour.
Mere plea that he is in possession and therefore his encroachment
needs to be protected can be of no assistance because on the basis

of such plea he cannot ultimately succeed in his Suit. If final
relief itself cannot be granted on such plea, it is apparent that no
interim relief also can be sustained by it. Thus apart from long
possession, such person has to establish some legal right in his
favour to enable him to claim temporary injunction during
5.

pendency of suit.
Observations in following judgments mentioned below also
throw useful light. In AIR 1989 S.C. 1988 Sodan Singh v. New
Delhi Municipal Committee Hon Apex Court observed: --
"13. Mr. Singhvi is correct in pointing out that the
passages of the American and English laws, as relied
upon on behalf of the petitioners, do not establish
their right to carry on trading business on public
streets, but for that reason their claim cannot be
ejected either. The question requires to be examined
further. The observations in the judgment of
Venkatarama Aiyar, J. quoted above prima facie
support the petitioners. They received express
approval of this Court in Saghir Ahmad's case (AIR
1954 SC 728), but there is an important distinction
between those cases and the present matter which

cannot be ignored. In both the above cases the
petitioners were claiming the right to ply transport
vehicles for hire on public streets; in other words,
they wanted to use the roads for transport, for which
the roads were primarily laid out and while so doing
attempted to earn money. In the present cases
before us the petitioners are desirous of conducting
their trade business by sale of goods on the roads

from stationary points; they do not want to make
use of the roads for movement of persons or goods.
The question is whether this makes a material
difference.
14. The primary object of building roads is
undoubtedly to facilitate people to travel from one
point to another. Quoting several --------------------------
-----------highway as such. These statements certainly
do not mean that a traveller has to be in perpetual
motion when he is in a public street. It may be
essential for him to stop sometime for various
reasons he may have to alight from a vehicle or pick
up a friend, collect certain articles or unload goods
or has to take some rest after a long and strenuous
journey. What is required of him is that he should
not create an unreasonable obstruction which may
inconvenience other persons having similar right to

pass; he should not make excessive use of the road
to the prejudice of the others. Liberty of an
individual comes to an end where the liberty of
another commences. Subject to this, a member of
the public is entitled to legitimate user of the road
other than actually passing or re-passing through it.
15. It has been sometimes argued that since a person
is entitled to the user of every part of a public street,

he cannot be deprived of the use of any portion
thereof by putting up of any obstruction. This
proposition in its extreme form cannot be accepted
without subjecting it to several restrictions.-------------
--------------------------------. If hawkers were to be
conceded the right claimed by them, they could hold
the society to ransom by squatting on the busy
thoroughfares, thereby paralysing all civic life. This
is one side of the picture. On the other hand, the
right if properly regulated according to the exigency
of the circumstances, the small traders on the side
walks can considerably add to the comfort and
convenience of general public, by making available
ordinary
articles
of
every
day
use
for
a
comparatively lesser price. -----------------------------------
------. Proper regulation is, however, a necessary
condition as otherwise the very object of laying out

roads - to facilitate traffic - may be defeated. ----------
------------------The proposition that all public streets
and roads in India vest in the State but that the
State holds them as trustee on behalf of the public,
and the members of the public are entitled as
beneficiaries to use them as a matter of right, and
that this right is limited only by the similar rights
possessed by every other citizen to use the
ig
pathways, and further that the State as trustee is
entitled to impose all necessary limitations on the
character and extent of the user should be treated as
of universal application.
17. The provisions of the Municipal Acts should be
construed in the light of the above proposition. In
case of ambiguity, they should receive a beneficial
interpretation, which may enable the municipalities
to liberally exercise their authority both, in granting
permission to individuals for making other uses of
the
pavements,
.
and,
for
removal
of
any
encroachment which may, in their opinion, .be
constituting undesirable obstruction to the travelling
public.---------------"
In AIR 1994 A.P. 275 Mohd Suleman v. S. O., Municipal
Corpn. of Hyderabad learned Single Judge held:---

"10. Following the ratio of the Supreme Court's
decision in Sodan Singh case (supra), I hold that the
petitioners have no legal right to insist that they
should be permitted to retain their structures on a
busy road margin when the road itself is sought to
be widened nor can it be said that till an alternative
accommodation
is
shown
by
the
Municipal
Corporation, the petitioners have a right to continue

their business even at the cost of holding up the
road widening programme. No doubt, a scheme has
been directed to be framed in Sodan Singh's case
(supra) to regulate the street trading and to
rehabilitate some of them in the zone specially
selected
for
squatting/hawking
and
while
considering the scheme prepared by a Committee,
the Supreme Court pointed out the need to adopt a
compassionate approach so as to ensure that
genuine squatters/hawkers are not denied their
daily bread on the altar of technicalities (vide para-2
of Saudan Singh case (supra)). But nowhere it is
spelt out that in all cases of encroachment of public
roads and streets by poor for the purpose of making
their livelihood , a proposal for rehabilitation in an
alternative place is a condition precedent for taking
any step to remove the encroachment. A large

section of pavement vendors in the city of Delhi
called for a special approach especially having
regard to the fact that the permission to squat was
being granted to the traders on daily basis or for
short periods
by
the Corporation
itself.
The
Corporation itself conducted a survey and prepared
a scheme to determine the categories of persons to
be considered for grant of permission to squat
ig
subject to availability of space. In framing the
scheme, the hawkers/squatters in busy areas having
severe traffic congestion were allotted space for their
business in some less busy areas. The case of two or
three persons running mechanical workshops by
putting up temporary structures on the road margin
are not comparable to cases of large section of
squatters/hawkers considered by the Supreme Court
in the aforementioned case, especially when the
road widening work had to be urgently undertaken
in public interest. It is not even the case of the
petitioners that they were prepared to go to any
place or that they approached the Municipal
Corporation for a grant of suitable site at a non-
objectionable place."

Petitioner before this Court is an artificial person
6.
created under the provisions of Municipal Act. All its actions are
therefore controlled by provisions of enactment giving birth to it
and must conform to it in order to be legally sustainable or
actionable. Respondents therefore have to establish that they are
placed in possession by Municipal Council in accordance with
ig
provisions of Municipal Act. Provisions of section 92 thereof read
as under: --
Provisions regarding transfer of municipal
“92.
property: -- (1) No Council shall transfer any of its
immovable property without the sanction of the
State Government.
(2) A proposal of such transfer shall be
accompanied by the resolution of the Council passed
at a meeting by majority of not less than two-thirds
of the total number of Councillors and shall in no
way be inconsistent with the rules made in this
behalf by the State Government.
(3) Notwithstanding anything contained in
subsection (1), a Council may lease its immovable
property for a period not exceeding three years, and
lessee shall not be allowed to make any permanent

Such
constructions on such immovable property.
lease may be renewed by the Council beyond the
period of three years so, however, that total period
of any lease shall not exceed nine years.
No such lease or any renewal thereof shall be
granted unless supported by a resolution passed at a
meeting of the Council."
Provisions of section 88 (2) may also be relevant here. This

section or section 92 occurs in chapter VII of Municipal Act and
said chapter deals with municipal property, funds, contracts and
liabilities. Section 88 (2) with relevant portion of subsection (1)
is as under: --
"88. Power to acquire and hold property: --
(1)-- (a) to (d) ---------------
(f) all lands, buildings or other property
transferred
to
the
Council
by
the
Central
Government or the State Government or acquired by
gift, purchase or otherwise for local public purposes;
and
(g)-------------------
(2)
the
lands
and
buildings
belonging
to
Government and transferred to a Council under
clause (f) of subsection (1) shall not, unless

otherwise expressly provided in the instrument order
of transfer, belong by right of ownership to the
Council, but shall vest in it subject to the terms and
conditions of transfer."
7.
In this background, it will now be appropriate to find
out what is the case pleaded by Respondents/plaintiffs. Suit is

filed for grant of the prohibitory injunction to protect their
possession by restraining Petitioner from interfering with it in any
manner and for declaration that notice dated 5/10/2005 issued
Respondents state
by the Petitioner is wrong and illegal.
description of respective plots in their possession and further
state that it is in their possession since 1971 on temporary lease.
They also point out that they are doing business on this plots and
are paying rent regularly in the office of Petitioner and have
receipts therefor. The further state that they are paying tax also
and Respondent No 1 has stated that his country liquor shop is
duly licensed under provisions of Bombay Prohibition Act and
also under Shops and Establishment Act. All state that they have
electric connection and water connection, and are paying charges

therefore regularly. They state that their possession is legal and
they are small traders with no other place to run their business.
They also mention that land is recorded as Government land with
nazul and Petitioner has no rights over it. Thereafter they point
out service of notices dated 5/10/2005 upon them and further
state that when they visited office of Petitioner to deposit rent,
ig
Petitioner refused to accept it. They have thereafter pointed out
their long possession and certain judgments to support their
contention that said possession is legal and needs to be protected.
It is therefore clear that they have not pointed out any written
contract with municipal Council enabling them to occupy this
plots or any resolution of municipal Council permitting them to
occupy these plots. They have not pointed out any provision of
Municipal Act in support of their stand. It is therefore clear that
above-mentioned provisions of section 92 have not been shown
as fulfilled by them to claim any legal right to continue to occupy
suit plots. Mere act of depositing monthly certain amount as rent
cannot clothe Respondents with status as lessee or tenant. Even
if contention of Respondents about temporary lease is taken up

for scrutiny, it is apparent that it is Council who can grant such
lease for period not exceeding three years and there has to be
resolution of Council for that purpose.
Section 92 expressly
states that total period of such temporary lease with its renewals
cannot exceed nine years. Respondents have not pleaded any
No resolution of
compliance with these requirements of law.

Petitioner Council fixing any amount as monthly rent has been
8.
pleaded.
Stand of Respondents is that property belongs to
Roving attitude is apparent from fact that they
Government.
claim temporary lease from municipal Council and plead payment
of monthly rent to it. 1st document on which Respondents have
placed reliance for this purpose is the order dated 27th May 1989
passed by Collector Yavatmal by which sanction has been
accorded to grant of land admeasuring 1093 sq m out of plot No
2396, Sheet No 66 to Petitioner Municipal Council on payment of
occupancy prices of Rs 38255 and on yearly revenue of Rs 393.50
in exercise of powers under section 31 of Maharashtra Land

Revenue Court, 1966 read with rule 6(1) and rule 8 of
Maharashtra Land Revenue (Disposal of Government Land)
Rules, 1971. Clause (e) states that there are 26 unauthorised hut
owners and municipal Council has to settle these hutment
dwellers before starting construction of slaughterhouse and beef
Clause (f) states that only after completion of
market.

resettlement of hutment dwellers said construction should be
made and clause (g) further states that construction should be
made as per development and control rules and provisions of
Integrated Urban Development Programme of the Central
Its preamble also mentions that said land is
Government.
reserved in Draft Development Plan for beef market and
slaughterhouse.
It is therefore apparent that this document
mentions dwellers i.e. persons using huts for residence.
It
nowhere contemplates resettlement of Respondents who are
carrying out commercial activities in their respective structures.
Further these Respondents have not stated that they need to be
resettled and it is further apparent that there is no grievance
being made by 26 unauthorised hut owners reflected in the

Government order. Other document is the resolution number 448
of meeting dated 7/12/1987 of Standing Committee of
Petitioner. The resolution is obviously prior to above-mentioned
order of Collector. It only mentions desire of Municipal Council
to acquire land in question and states that said land is reserved
for shopping centre and road widening. It further mentions that

it is actually being used by some shopkeepers and some of it is
being used for residence. It appears that before granting this land
whether
to Municipal Council, Sub Divisional Officer inquired from it as to
Municipal
Council
was
making
any
alternate
arrangement for occupiers. The resolution mentions that till the
shopkeepers having their shops on reserved plot are given
alternate
shops
or
residents
are
provided
alternate
accommodation, they would not be required to vacate. It further
states that in construction to be undertaken under Integrated City
Development Project, as per Section 92 of Municipal Act and
Maharashtra Municipalities (Transfer Of Immovable Property)
Rules, 1983 under it, these person should be accommodated in
shops to be constructed or residential accommodation to be

1983 Rules mentioned
provided on "no profit no loss" basis.
above do not contemplate any such allotment and Municipal
Council has been permitted to dispose of its immovable property
through any open process in which all aspirants can participate.
Provisions of part III Rule 7 and 8 does not permit any such
allotment even to existing occupiers. It is therefore clear that no

premium can be placed upon any encroacher by giving him any
preferential treatment in the matter. Conditions mentioned by
Collector in his order are after resolution of Municipal Council
and are only restricted to 26 hutment dwellers.
Rule 26
occurring in part VII of these 1983 Rules permit Government to
relax these rules by recording reasons in writing in respect of a
case which in its opinion is of special nature. Respondents have
not come up with any such case and for reasons obvious, they
cannot come up with any such plea. Reference to these
documents
by
present
Respondents
is
therefore
again
misconceived and only shows their intention to remain in
possession and to exploit said land commercially as long as
possible. It is to be noticed that cost of construction is going up

everyday and Respondents for their personal benefit have
definitely put more burden on public revenue. It is apparent that
their individual grievance cannot be compared with public injury
and in absence of even a prima facie right in their favour, they
are not entitled to grant of temporary injunction. Insistence upon
observance of "due procedure" by these Respondents is totally

unwarranted. Even if all plaint allegations are presumed to be
true, the same fall short to make out any case of legal injury in
unsustainable.
their favour. The application of mind by Appellate court is
Appellate court ought to have noticed that an
action to be binding on body corporate like Petitioner or to
operate to the prejudice of general public must be stated and
shown to be in accordance with provisions of Municipal Act. The
Appellate Court was duty bound to notice this aspect and ought
not to have confused possession only as conferring any legal right
upon Respondents. Resolution of Municipal Council or any of its
members or its chief officer cannot make their action binding
unless and until it is in accordance with provisions mentioned
above. Procuring of some trading licence or no objection from

Municipal Council, paying some charges to it towards such
occupation of land does not create any legal relationship between
Municipal Council and such person.
Influential traders or
businessmen may try to take undue advantage of their position by
getting any orders or resolutions from such bodies and therefore
only, legislature has circumscribed those powers by providing for
It is apparent that

appropriate measures by way of control.
Appellate Court has exercised jurisdiction not available to it in the
matter by protecting unauthorised and apparently illegal
possession of Respondents to the prejudice of public at large and
has hampered the development work specified by Development
Plan. It is further to be noticed that Respondents after receipt of
notice to remove encroachment from Municipal Council, till today
got sufficient time to make alternate arrangements but then as
already stated above the wish to prosper at the cost of general
public which cannot be tolerated at all.
9.
It is therefore obvious that the order dated
29/10/2005 passed by the learned Addition District Judge, Pusad

in Misc Civil Appeal 26/2005 is unsustainable and needs to be
quashed and set aside. Accordingly said order is quashed and
Misc Civil Appeal 26/2005 is hereby dismissed. Writ petition is
accordingly allowed and in the facts, Petitioner Municipal Council
is awarded cost of Rs 5000/- only recoverable from Respondents

by it. Rule made absolute accordingly.
JUDGE.
At this stage Shri Narwade, Advocate for the
11.
respondents states that the respondents wish to challenge the
judgment before appropriate forum and hence the same should
be stayed for a period of six weeks.
He states that he has
informed the office of Shri Sambre, Advocate who appears for the
petitioner and he further mentions that registered clerk of Shri
Sambre, Advocate is present in the Court Hall.
In the
circumstances, the operation and effect of today's judgment is
suspended for a period of six weeks to enable the respondents to

will end automatically after expiry of said period.
take further appropriate steps in the matter. The said suspension

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