consistently held not to be encroachers or trespassers on the
land in their occupation, they having been let in thereto by the
erstwhile Gram Panchayat, the then owner thereof. The land
has since changed hands and is vested in the State
Government. In our view, both the appellants and the
respondents/defendants have to share the blame of leaving the
compromise decree unexecuted for over a decade whereafter
fresh rounds of confrontations surfaced leading to the present
situation. Be that as it may, though there has been no
determinance of the appellants’ right, title and interest in the
land, except that they are admittedly in continuous possession
since the year 1970 and carrying on their business there,
understandably, over the years, they have settled themselves in
their plots and are earning their livelihood from the income of
the business dealings. Though the build up of facts, since the
compromise decree cannot be discarded, the contemplated
measures of the respondents, to clear the area of the
encroachments in public interest and for its overall
development, would result in the displacement of the
appellants as a compelling necessity. As a corollary, they have
to be essentially rehabilitated or adequately compensated
bearing in mind, the impact of the passage of time on the
relevant perspectives since the date of the compromise decree.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14016 OF 2015
SAYYED RATANBHAI SAYEED Vs SHIRDI NAGAR PANCHAYAT
Citation:(2016) 4 SCC631
Author: AMITAVA ROY,J.
The appellants, ostensibly small scale shopkeepers
located in the vicinity of the internationally revered seat of
Shirdi Sai Baba at Shirdi Taluq, Rohata, District Ahmadnagar,
Maharashtra, face ouster from their sites, being entrapped in
the dictates of events since after their suit had been decreed
on compromise in the year 1979, securing their right of
rehabilitation in the same locality.
2. The contextual facts encompass the issues in all the
appeals and permit analogous adjudication.
3. The five appeals impeach the consecutive adjudications
in sequential phases affirming the displacement of the
appellants by acknowledging the mandate of the relevant Town
Planning and Municipal Laws and the overriding public
interest as perceived, their decree being construed to have
been rendered inexecutable by the intervening developments.
Their possession, however remains protected by the interim
order of status-quo granted by the High Court and continued
in the instant proceedings subject to the liberty granted to the
respondent- Shirdi Nagar Panchayat (for short, hereinafter to
be referred to as “Nagar Panchayat/Municipal Council”) to
take any action in accordance with law, in connection with the
widening of the concerned road or removal of encroachments,
in terms of the order dated 13.12.2010 passed in SLP (C) Nos.
27988 of 2010, 29683-29685 of 2010 and 28235 of 2010.
4. We have heard Mr. Siddharth Luthra, learned senior
counsel for the appellants, Mr. Shekhar Naphade, learned
senior counsel for the Nagar Panchayat/Municipal Council
and the learned counsel for the State.
5. The genesis of the eventful factual background is
traceable to a one time small village named Shirdi with
minuscule population. It rose to fame and eminence in view of
the shrine of Sage Sai Baba, viewed as a mortal incarnation of
the divine and with time became a pilgrimage centre of
worldwide following. Having regard to the increasing number
of devotees thronging for offering oblations, small shops grew
around the temple, catering to the essentials of the
worshippers for their offerings and also their refreshments and
conveniences.
6. The plot involved contained in Survey No. 1, Hissa No. 1A
1/1A/2B2 of Shirdi Takula Kopargaon, District Ahmednagar
and situated near the Sanctum Sanctorum adjacent to NagarPage 5
5
Manmad Road, prior to 30.8.1974, vested in the then Shirdi
Gram Panchayat, which had leased out small parcels of land
therefrom to the appellants on rent for carrying on their
trades. The land was taken over by the State through the
Circle Officer, Rahata on 30.8.1974 and as a consequence,
though the appellants were ready and willing to pay the rent,
the same was not collected from November, 1974. According
to them, though by operation of law, they continued to be the
tenants under the State Government and were entitled to
retain their possession as before, it transpired with time, as
visualised by them, that joint efforts were on, of the official
respondents and the respondent- Shri Sai Baba Sansthan,
Shirdi (for short, hereinafter to be referred to as “Sansthan”) to
forcibly evict them from their plot measuring 30 gunthas.
7. Situated thus and being faced with imminent loss of their
only means of livelihood, the appellants instituted Regular
Civil Suit No. 600 of 1976, in a representative capacity, on
behalf of 45 shopkeepers similarly situated, in the court of
Civil Judge (Sr. Division), Ahmednagar seeking a declarationPage 6
6
that they were lawful tenants of the parcels in their
occupation and also for permanent injunction restraining the
defendants therein from taking over possession of the same,
otherwise than in due course of law. The State of
Maharashtra (Revenue Department), Tehsildar, Kopargaon,
District Ahmednagar and Shri Saibaba Sansthan Shirdi,
Shirdi, Tal Kopargaon were impleaded as defendants. The
averments made in the suit would demonstrate that the
appellants then had been possessing premises of sizes ranging
from 10’ x 7 ½’ and 12’ x 12’.
8. The suit eventually got decreed on compromise on
20.8.1979. As the contents of the order recording the
compromise would attest, out of 101 shops mentioned in
schedule ‘A' of the suit, which had been taken over by the
State Government from the Panchayat and handed over to the
Sansthan, 45 shops in occupation of the appellants were
marked in Schedule ‘B’, which in terms of the compromise
were to remain thereon. Qua the remaining 56 shops, the
Government was to provide accommodation in the land inPage 7
7
Survey No. 170. Under the compromise, it was agreed that the
Sansthan would construct shops measuring 16’ x 11” (hotel)
and 7’ x 11’ (flower, Prasad, photo etc.) in terms of the site
plan that was accepted by the parties.
The Sansthan was to start the construction of the building on
the land in occupation of the appellants and to complete the
same within one year from taking possession thereof. It was
agreed in categorical terms that during the period of
construction, the 45 shops of the appellants would have to be
temporarily accommodated in the triangular plot located
towards the west of the proposed building as shown in the
map/plan. The Sansthan was obliged in terms of the
compromise deed, to accommodate the 45 shopkeepers in the
said triangular plot before starting the construction of the
proposed building. The appellants were also under an
obligation to move to the said plot without any objection so as
to enable the Sansthan to initiate the construction for the
proposed building. As further agreed, 31 shopkeepers of the
remaining 56 shops were to be accommodated in the existing
equal number of shops constructed by the Sansthan in thePage 8
8
land of Survey No. 170 on the western side of the Nagar
Kopargaon Road and that the allotment was to be made on the
basis of lottery. The remaining 25 shopkeepers, after such
allotment, were also to be provided space in the land of the
same survey number by resorting to lottery. Under the
compromise, after the completion of the construction of the
shops, the allotments were to be made by lottery system to the
45 shopkeepers i.e. the appellants. The triangular space in
which the appellants were to be temporarily rehabilitated was
clearly identified by the parties. The rate of rent to be paid by
them and the other stipulations pertaining to the continuing
lease were also enumerated in the compromise. Resultantly, a
decree was passed by the trial court in the same terms on
20.8.1979. The said decree has since remain unchallenged
and is thus final and binding on the parties.
9. Years that rolled by thereafter witnessed a passive and
inert disposition of both the parties, visibly reconciled to the
existing and continuing state of affairs. Undisputedly, the
Sansthan did neither arrange for the accommodation of thePage 9
9
appellants in the triangular plot as agreed upon nor did take
any initiative for the construction of the shopping complex at
the site occupied by them. It was as late as on 19.2.1990,
that the Sansthan did file an execution petition before the trial
court alleging that the appellants/decree-holders had not
handed over the suit site to it to enable the constructional
activities. The appellants too, in response, filed an execution
petition being R.D. No. 5 of 1990, accusing the respondents of
their negligent and irresponsible inaction and failure to comply
with the decree.
10. While the matter rested at that, a “Development Plan” of
Shirdi was sanctioned by Notification No. D.P. Shirdi/TPVIV/7334
dated 15.12.1992 of the Director of Town Planning,
Maharashtra State, Pune (hereinafter referred to as the
development plan) and enforced it on and from 25.2.1993.
Thereby an area of 30 gunthas identified as site No. 13 in
Survey No. 1 (as involved in the instant proceedings) was
shown to be reserved for garden. As the records testify, by
Notification No. TPS-1695/996/CR-83/97/UD-9 datedPage 10
10
27.3.2003 of the Urban Development Department,
Government of Maharashtra, this 30 gunthas of land in site
No. 13 was bifurcated into two equal parts, northern half
measuring 15 gunthas, shown reserved for “Garden” as site
No. 13A and the remaining southern half of 15 gunthas shown
as reserved for ”Shopping Centre” as site No. 13B. The
notification mentioned that the modification was in terms of
the proposal submitted by the Nagar Panchayat which had
since been upgraded as Municipal Council by the State
Gazette Notification dated 16.6.1999. The Notification also
clarified that the Nagar Panchayat in laying such proposal,
had complied with the formalities to this effect as stipulated by
the Maharashtra Regional and Town Planning Act, 1966 (for
short, hereinafter to be referred to as “Act 1966”) and was
approved by the Director of Town Planning, Maharashtra
State, Pune. In terms of this reorientation, the appellants
were in occupation of plot No. 13A, as referred to in the above
Notification. Page 11
11
11. In the meantime, at the instance of the Nagar Panchayat,
the shops constructed by it on the government land, Survey
No. 170 were demolished. Consequently, the arrangement of
adjusting 31 shopkeepers out of 56 batch did not fructify. The
others were also not allotted any open plot by drawing lots as
was contemplated in the compromise decree. As the flow of
events would testify, the Executing Court on 19.12.2003
directed maintenance of status-quo of the subject matter of
the execution proceedings in view of the ongoing demolition
drive resorted to by the State and the apprehension expressed
by the appellants to suffer the same fate. Eventually, the
Executing Court by order dated 21.5.2004 rendered in RD No.
5 of 1990, held that the compromise decree was binding and
executable, the facts in the interregnum notwithstanding and
that the defendants/judgment debtors were bound to provide
temporary accommodation to the appellants till completion of
the construction work in the suit land and consequently
restrained them i.e. the defendants/judgment debtors from
removing or demolishing the shops of the appellants till theirPage 12
12
temporary adjustment in the triangular plot in terms of the
decree.
12. This view was taken notwithstanding the plea on behalf
of the defendants/judgment debtors, that in the face of the
development plan and also the proposed widening of the
adjacent Palkhi Road within the limits of the Nagar Panchayat,
for which a process was afoot for acquisition of land and the
overall developmental activities in the area to meet the heavy
rush of devotees, their convenience and safety, the decree had
become inexecutable with time.
13. Being aggrieved, the State of Maharashtra filed Writ
Petition (C) No. 5839 of 2004 in which the Tehsildar, Rahata
in his affidavit-in-rejoinder did aver that the land at site No.
13 was vested in the State Government and that the Nagar
Panchayat had no authority to develop the same without its
approval and permission. Be that as it may, by order dated
31.7.2007, the High Court remanded the matter for fresh
consideration by the Executing Court, by setting-aside the
order dated 21.5.2004 granting injunction to the appellants.Page 13
13
The Executing Court following the remand, vide order dated
9.3.2009, returned a finding that the decree had become
inexecutable in the face of the irreversible intervening events.
After an exhaustive evaluation of the evidence, both oral and
documentary, as adduced before it, it held that in view of the
Shirdi town development plan, as well as the precepts of the
Bombay Highways Act, 1955 ( for short, hereinafter to be
referred to as “Highways Act”) prescribing, inter alia, the
margin of clearance of the control line as well as the relevant
provisions of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 (for short,
hereinafter to be referred to as “Act 1965”) as well as Act 1966,
along with the initiatives taken in terms thereof, the decree
had become inexecutable. It underlined as well that with the
phenomenal rise in the number of devotees to the temple and
the consequential mounting challenges to the administration
like congestion, traffic jams etc. and the accompanying
aspects of safety and security of the visiting worshippers in
particular and the public in general, it was not feasible to
construct a shopping complex as earlier comprehended. OnPage 14
14
the other hand, it was essential in public interest to
implement the development plan which included, amongst
others, widening of the adjacent Palkhi Road by removing
encroachments thereon as reported. It noticed as well that
the triangular plot as well as the site earmarked for the
shopping complex did come within the prohibited zone of the
control line prescribed by the Highways Act for which no
construction thereon was permissible as envisaged by the
compromise decree.
14. Being highly aggrieved by this determination, the
appellants in batches, filed writ proceedings before the High
Court which after an elaborate analysis of the run up of facts
concluded that in the singular attendant facts, the decree had
become inexecutable on account of the failure of both the
parties to perform their mutual obligations. The High Court,
however vide order dated 5.7.2010 in categorical terms held
that the appellants were neither encroachers nor intruders on
the land in occupation. It also noticed that meanwhile the
Sansthan had deposited approximately Rs. 3 crores forPage 15
15
acquisition of land by the State Government, to shift the
shopkeepers from the proximity of the temple to facilitate the
implementation of the development work and at the same time
rehabilitate them to the extent possible. The High Court with a
view to strike a balance between the two competing interests
and also to ensure that the shopkeepers are suitably
compensated directed, as a rough and ready measure to grant
compensation to the shopkeepers @ Rs. 3 lakhs each to those
having bigger shops like Hotel, sweet-meat shops etc.) and Rs.
2 lakhs each to those of smaller shops i.e. Flower Vendors,
Essence Vendors etc. The State as well as the Sansthan were
directed to bear the amount of compensation in equal shares
to be deposited within a period of six months. In computing
the rate of compensation, the High Court also took note of the
sizes of the two categories of shops, 16’ x 16’ (big) and 7’ x 11’
(small).
15. Though an appeal was preferred against this verdict, it
was eventually withdrawn, whereafter C.A. No. 3154 of 2011
had been instituted before this Court. It is worthwhile toPage 16
16
record that this Court by order dated 1.10.2010 directed
maintenance of status-quo. Subsequent thereto, by order
dated 18.10.2010, the Sansthan as well as the State
Government were required to explore the possibility of
identifying a suitable alternative plot even away from the
existing plot, for the purpose of construction of shops for the
appellants without prejudice to their contentions. While
noticing that meanwhile, the Sansthan had deposited a sum
of Rs. 2.19 crores in terms of the order of the High Court
dated 5.7.2010, it extended the interim protection earlier
granted. By order dated 13.12.2010 however, this Court
responding to the submissions made on behalf of the Shirdi
Municipal Council to the effect that it was not a party to the
compromise decree and that the interim order was acting as
an impediment for its initiatives to widen the road and to
remove the encroachments in accordance with law, clarified
that the order of status quo had been granted vis-à-vis the
Sansthan and the State Government and that if the Municipal
Council decided to take any action in accordance with law for
the purpose of widening of road or removal of encroachments,Page 17
17
the same (interim order) would not come in the way of such
action being taken in accordance with law. Later, by order
dated 28.2.2011, the order of status-quo was allowed to
continue subject to the clarification as above.
16. Following this clarification, as aforestated, the Nagar
Panchayat issued a public notice being Outward No.
NP/Const/KV-11/75/2011 dated 11.4.2001 under Sections
42, 45, 52 and 53 of Act 1966 and under Sections
179,180,187 and 189 of Act 1965 being one directed to the 45
shopkeepers in Schedule ‘B’ in R.D. No. 5 of 1990 i.e. the
appellants, intimating them that their sheds on the land
referred to therein were illegal constructions used for business
purposes. Referring also to the orders dated 13.12.2010 and
28.2.2011 passed by this Court as above, permitting the
Nagar Panchayat to pursue its initiatives for removal of
encroachments and widening of road in accordance with law,
it was elaborated further that the shops of the appellants, in
terms of the reports submitted by the Deputy Director, Town
Planning Department, Nasik, pursuant to the order of the HighPage 18
18
Court in W.P. (C) No. 583 of 2004, were coming within 9
meters of the Palkhi Road. It was mentioned as well, that the
constructions of the appellants were intruding on the fifteen
meters wide road towards the temple and for this, the
development scheme of the road could not be implemented. It
was highlighted that in view of such impediments, the
devotees and the public at large were being seriously
inconvenienced, while taking the Nagar Manmad Road towards
the temple. While stating as well, that the plot No. 13A, in
terms of the development scheme, was reserved for garden and
that the construction of the appellants have adversely
impacted upon the said scheme, it was underlined as well that
encroachments by them, were also within 37 meters from the
centre of the State Highway No. 10, Nagar Manmad Road, in
violation of the construction line and control line. The notice
specified that commercial use of land within the said zone was
prohibited. The appellants were called upon thereby, to
remove the illegal and unauthorized constructions in violation
of the provisions of Act 1965 and Act 1966 within 30 days ofPage 19
19
the receipt of the notice failing which it was conveyed, that the
same would be demolished by the Nagar Panchayat.
17. The appellants against this notice filed a suit being RCS
No. 139 of 2011 in the court of Civil Judge (Sr. Division),
Kopergaon, seeking annulment thereof and perpetual
injunction against the Nagar Panchayat and the State as
defendants. The prayer for temporary injunction though
refused by the trial court, the appeal before the District JudgeII
was allowed and by order dated 11.5.2011, the Nagar
Panchayat was restrained, by an ad-interim injunction from
interfering with the appellants’ possession of the suit property.
18. The Nagar Panchayat in its turn approached the High
Court with a writ petition in which by order dated 9.6.2011,
the order of ad-interim injunction was maintained but the trial
court was directed to decide the application for injunction on
its own merits within a period of one month. The trial court
by order dated 17.10.2011 rejected the application for
temporary injunction holding that the appellants had failed to
establish a prima facie case or balance of convenience in theirPage 20
20
favour though irreparable loss was not unlikely. The appeal
filed by the appellants against this determination failed on
25.9.2012. The First Appellate Court in dismissing the same
took note, inter alia, of the pendency of the C.A. No. 3154 of
2011 on the related issues and observed that to decide the
same, evidence would be necessary and required the trial
court, to address the same accordingly.
19. Being aggrieved, the appellants turned to the High Court
again with W.P. (C) No. 8032 of 2012, impeaching the orders of
the courts below declining interim injunction and also seeking
a restraint on the Nagar Panchayat and the State by
interdicting them from demolishing their shops and from
interfering with their peaceful possession of the suit property.
20. The High Court, by the decision impugned in Civil Appeal
No. 14016 of 2015, on a survey of the entire conspectus of
facts, did reiterate that the appellants were not encroachers on
their land in their occupation and that their entry thereupon
was legal. While recording that they had been occupying the
same with their small shops/kiosks since 1970, it was,Page 21
21
however noted that the decree with time had become
inexecutable. It also recorded that meanwhile, the
development plan of the Shirdi Town had been notified on
15.12.1992 and that the suit site No. 13A had been reserved
for ‘garden’ and 13B for ‘shopping complex’. It was noticed as
well that, the appellants’ shops were located on site No. 13A.
While tracing the litigational route and the findings recorded
in the earlier proceedings, based on contemporaneous
records and noticing the fact that the area comes within the
control line and that in terms of the development plan, no
construction can be allowed on the site reserved for ‘Garden’,
the High Court declined to protect the appellants’ structures.
It held that the Nagar Panchayat/Municipal Council, was a
planning authority entrusted with the statutory duty to
implement the development plan and recalled that in the
earlier proceedings, directions had been issued to the State
Government and the Sansthan to pay compensation for their
eventual ouster. That this Court by order dated 13.12.2010
had granted liberty to the Municipal Council to proceed withPage 22
22
its project of widening the road and clear the encroachments
in accordance with law was referred to as well.
21. Section 56 of the Act 1966 was adverted to also to record
that the same empowered the planning authority to direct
discontinuance of a particular use of land or any building or
order removal thereof, having regard to the development plan,
if construed to be expedient in the interest of proper planning.
That the steps contemplated to widen the Ahmad Nagar
Manmad Highway No. 10 and also the roads leading to the
temple were in public interest was emphasized. It was thus
concluded that the impugned notice had been issued for
removal of the structures of the appellants to espouse a public
cause. While dismissing the petition, the Nagar
Panchayat/Municipal Council was restrained from evicting the
appellants for a period of three months.
22. In the above chequered and contentious backdrop, Mr.
Luthra has assertively argued that the compromise decree
dated 20.8.1979 being final and binding on the parties, the
appellants have a vested right to continue at their sites andPage 23
23
thus the contemplated action of evicting them therefrom on
the purported plea of intervening events, is palpably illegal and
unauthorized besides being unreasonable, unfair and unjust.
As on the date of the decree, as well as when the execution
thereof was applied for in the year 1990, neither the
development plan nor the control line under the Highways Act
was in existence, the defence of inexecutability thereof is
fallacious and the finding to the contrary recorded in the
earlier proceedings is patently unsustainable in law and on
facts, he urged. Learned senior counsel argued that the
notification contemplating the control line and the
development plan being dated 9.3.2001 and 27.3.2003
respectively, these subsequent prescriptions, though
statutorily endorsed cannot be invoked with retrospective
effect, thereby rendering the compromise decree passed more
than two decades prior thereto and the rights conferred
thereby, non est. This is more so as the
respondents/defendants in the suit had undertaken in terms
of the accepted site plan, to rehabilitate the appellants in the
proposed shopping complex in recognition of their rights asPage 24
24
lawful tenants of the plots in their occupation, he maintained.
Mr. Luthra insisted, that as concurrently held in the earlier
proceedings, the appellants are neither encroachers nor
intruders nor unauthorized occupants of the suit property, a
finding unopposed and unchallenged as on date, and thus the
initiative to oust them, under the garb of the development
plan, the statutes invoked and the public interest, is not only
in violation of their fundamental rights under Articles 14,19
and 21 of the Constitution of India, but also lacks in bona
fide. As the situation as it obtains at the present, is the
making of the indifferent and careless inaction on the part of
the State Government and the Sansthan in particular, the
appellants not being responsible for the delay in the execution
of the decree, their proposed ouster, if permitted to be
actualized, would not only result in irreparable loss and injury
to them, but also tantamount to allowing the
respondents/judgment debtors to reap the benefits of their
own wrong, he urged. Mr. Luthra maintained that the
impugned notice dated 11.4.2011 is incompetent and
incomplete not being under the Highways Act as well asPage 25
25
Section 56 of the Act 1966 and is thus liable to be quashed on
this count alone. Apart from contending that the Municipal
council being not the owner of the land involved, lacks in
authority to issue the impugned notice, collusion between the
State Government, Municipal Council and the Sansthan has
also been pleaded, rendering the repugned action illegal and
non est bona fide.
23. In response, while the learned counsel for the State
endorsed the initiatives of the respondents to be in
furtherance of public interest, Mr. Naphade, learned senior
counsel for the Nagar Panchayat/Municipal Council urged
that the Nagar Panchayat not being a party to the suit, is not
bound by the compromise decree. He maintained that the
relief sought for by the appellants, being in the form of
preventive injunction, it is in essence discretionary in nature
and ought not to be granted after the same having been
declined consistently by the courts in the earlier proceedings
after a thorough and analytical evaluation of the facts and law
involved. As the appellants have failed to demonstrate, anyPage 26
26
prima face case against the Nagar Panchayat, and the relief of
injunction against it is also incomprehensible on the
touchstone of the balance of convenience and irreparable loss,
no interference by this Court in the exercise of its jurisdiction
under Article 136 of the Constitution of India is warranted.
The learned senior counsel has emphatically argued, that in
absence of any evidence of the claimed tenancy of the
appellants and their constructions on the suit land with the
permission either of the State Government or the Municipal
Council in existence at the relevant point of time, there is no
semblance of any right in them to retain the possession
thereof. According to Mr. Naphade, the appellants at best can
be construed to be licensees sans any vested right and by no
means can resist the steps taken by the Nagar
Panchayat/Municipal Council, as a planning authority under
the relevant legislations in discharge of its statutory functions.
The learned senior counsel has asserted that in any view of
the matter, the appellants’ perceived right to occupy the land
has to make way for the overwhelming public interest
manifested by the impelling necessity of implementing thePage 27
27
development plan, by removing the encroachments and
unauthorized structures to ensure the safety, security and
convenience of the devotees in particular and the citizenry in
general. As the encroachments and the unauthorized
structures have proved to be potential impediments in the free
access of the visiting worshippers to the temple apart from
being growingly hazardous, those are urgently required to be
removed, he maintained. In buttressal of his assertions, the
learned senior counsel has referred to the relevant provisions
of Act 1965, Act 1966 and the Highways Act. He urged that
the statutory provisions having been enacted to secure the
underlying objectives of the respective statutes, these have to
be accorded an overriding effect, lest the same are rendered
redundant. With reference to the additional documents filed
on behalf of the respondents, learned senior counsel also
sought to impress upon us, that the appellants are really not
petty shopkeepers but are instead sufficiently well off and own
RCC buildings assessed to tax by the Nagar Panchayat.Page 28
28
24. The learned senior counsel has further urged that the
shops of the appellants encroach upon the Palkhi Road as well
as the adjoining road of widths 9 meters and 15 meters
respectively, leading to the temple which are hindering the
implementation of the development plan. Further, their
constructions also come within the prohibited area of 37
meters of the control line from the Ahmad Nagar Manmad
Highway No. 10 under the Highways Act, he urged. According
to Mr. Naphade, except those of the appellants, all other illegal
constructions on the Palkhi Road and in conflict with the
development plan as well as the provisions of the statutes
involved, have since been removed by the Nagar
Panchayat/Municipal Council. He submitted that the
development plan issued in the year 1992 with later
modifications have since been finalized and notified and that
the Nagar Panchayat/Municipal Council as the planning
authority is duty bound to implement the same.
25. The decisions of this Court in M/s. Laxmi & Co. vs. Dr.
Anant R. Deshpande & Another (1973)1SCC 37,
Dhurandhar Prasad Singh vs. Jai Prakash University andPage 29
29
Others (2001)6SCC 534 and Arun Lal and Others vs. Union
of India and Others (2010)14SCC 384 have been cited to
reinforce the above.
26. Mr. Luthra, in his rejoinder, while reiterating his
assailment to the decisions impugned, has laid before us the
documents indicating the alternative sites suggested by the
appellants for their rehabilitation, in case their continuance at
the present site is disapproved by this Court.
27. We have noted the debated contours of the issues
involved. The discord that germinated with the suit by the
appellants apprehending their ouster from the plots in their
occupation, over the years has culminated in the notice dated
11.4.2001 under the Act 1965 and Act 1966 issued by the
Chief Officer, Shirdi Nagar Panchayat, Shirdi requiring them to
remove their perceived illegal constructions raised and
sustained in violation of the relevant provisions of these
legislations and also repugnant to the control line delineated
by the Resolution No. RBD-1081/871 dated 9.3.2001
published under the Highways Act. To recall, in terms of thePage 30
30
compromise decree, the appellants-45 shopkeepers in
occupation of the land in Schedule B as mentioned therein ,
were permitted to continue thereat and the Sansthan was to
accommodate them in the adjacent triangular plot, to obtain
vacant possession of the Schedule B land for raising a
shopping complex. The Sansthan thereafter was obliged to
rehabilitate the appellants in the new shopping complex.
Admittedly the proposed shopping complex was not
constructed. The appellants also continued to occupy their
plots in the aforementioned Schedule B land. The Nagar
Panchayat/Municipal Council had not been impleaded in the
suit as defendant, and thus was not a patty to the compromise
decree. That the land in question vests in the State
Government, is a matter of record.
28. Be that as it may, it was only in the year 1990 that for
the first time, the Sansthan filed an execution petition before
the trial court alleging that the appellants had not vacated
their plots. As a sequel, the appellants also filed an executing
petition No. RD 5 of 1990 imputing disobedience of the
precepts of the compromise decree by the Sansthan.Page 31
31
Noticeably for over a decade, the appellants had preferred a
situation of status quo and did not take any initiative prior
thereto for the execution of the decree, for obvious reasons.
After a spate of litigations, the High Court vide its ruling dated
5.7.2010, in reiteration of the determination of the executing
court made on 9.3.2009, did affirm that with the intervening
developments, the decree had become inexecutable. In the
attendant facts and circumstances, it however computed
compensation @ Rs. 3 lakhs and Rs. 2 lakhs each for the big
and small shopkeepers respectively as assessed by it and
directed the Sansthan and the State Government to bear the
liability in equal shares. That in terms thereof, the Sansthan
has meanwhile deposited an amount of Rs. 2.19 crores is also
on record.
29. In the interregnum, the development plan of Shirdi had
been sanctioned by the Director, Town Planning, Maharashtra
on 15.12.1992 to come into effect from 25.2.1993. As per the
said development plan, the area measuring 30 gunthas
included in Survey No. 1, in occupation amongst others of the
appellants was reserved for garden. On the directives of thePage 32
32
State Government, however and on the compliance of the legal
formalities under the Act 1966 as claimed, a modification
thereto was effected and this plot was bifurcated into two
equal halves of 15 gunthas each, the northern part (13A) being
reserved for ‘garden’ and southern part(13B) for shopping
centre. The appellants are in occupation of the plot 13A in
terms of the modified development plan. This was as far back
as on 27.3.2003. Presumably, the shopping complex
contemplated under the compromise decree in which the
appellants were eventually to be accommodated did not come
up in view of this development plan. However, explanation for
the inaction of the respondents/defendants for over two
decades is not forthcoming.
30. As is discernable from the pleaded stand of the
respondents/defendants and endorsed by the Nagar
Panchayat/Municipal Council, the shops of the appellants
have not only encroached upon the Palkhi Road (9 meters
width) but also the adjoining road (15 meters width) adjacent
to their plots and used as service road to the temple. Further
their constructions also come within the prohibited distance ofPage 33
33
37 meters from the centre of the Ahmad Nagar Manmad Road,
State Highway No. 10 i.e. the control line fixed under the
Highways Act. Such encroachments, according to the
respondents, being in derogation of the provisions of Act 1965,
Act 1966 and the Highways Act as well as in conflict with the
development plan are required to be removed not only to
promote the development of the area but also to secure the
convenience and safety of the surging volume of devotees in
particular and the local population in general.
31. To reiterate, the appellants have not disputed the
sequence of events after the compromise decree for which it
has been concurrently held in the preceding proceedings that
the decree has become inexecutable. Not only these facts are
borne out from the contemporaneous documents, there is no
persuasive reason either to delve into the same afresh. The
unassailable fact is that after the compromise decree on
20.8.1979, a development plan for Shirdi had been formulated
and finalized, in terms whereof amongst others, the Palkhi
Road and its adjoining road leading to the temple are
contemplated to be cleared of encroachments. Further, thePage 34
34
appellants’ structures are said to be within the prohibited
distance of 37 meters from the Manmad State Highway No. 10
marking the control line. Noticeably the compromise decree
did not declare the appellants’ title in the land. It is
admittedly vested in the State Government. The decree only
protected their occupation of the site in possession till they
were rehabilitated in the proposed shopping complex to come
up in future. The decree, in the framework of the suit in
which it was passed, also cannot be construed to be one,
endorsing compliance of the statutory requirements of the
legislations involved and in force at that point of time.
Resultantly, the failure of the Sansthan to construct the
shopping complex as undertaken under the compromise
decree, ipso facto would not insulate the appellants from the
mandate of the relevant statutes in force to test the legality or
otherwise of the structures existing allegedly in violation
thereof. In absence of any proof, adduced by the appellants to
demonstrate that their structures existing do adhere to the
prescriptions of the statutes invoked, their mere possession of
the site since 1970 would not be available to them as anPage 35
35
impenetrable shield against the infringements as alleged.
These violations, if any, however would have to be addressed,
by following the due process of law.
32. In all, having regard to the progression of events after
the compromise decree, the contraventions alleged and the
initiatives proposed in preponderate public interest, we do not
feel persuaded to hold at this distant point of time, that the
compromise decree is still executable. In our comprehension,
the intervening developments have occurred in the free flow of
events and in absence of any semblance of evidence of any
collusion between the State Government, the Sansthan and
the Nagar Panchayat/Municipal Council, we are not inclined
to sustain the said accusation.
33. Whereas in Arun Lal (supra) and Dhurandhar Parsad
Singh (supra), the decrees involved had been held to have
been rendered inexecutable in the contextual facts, which
need not be dilated, in M/s. Laxmi and Co. (supra), it was
enunciated as a matter of general proposition, that a Court
can take notice of subsequent events because of alteredPage 36
36
circumstances to shorten the litigation. It was held that if the
court finds, in view of such intervening developments, the
relief had become inappropriate or a decision cannot be given
effect to, it ought to take notice of the same to shorten
litigation, to preserve the right of both the parties and to
subserve the ends of justice.
34. Inexecutability, of the decree of a court, in the face of
intervening and supervening developments, is thus a
consequence comprehended in law, however contingent on the
facts of each case. We, thus, feel disinclined to interfere with
the judgment and order dated 5.7.2010 of the High Court and
impugned in CA. No. 3154 of 2011, so far as it pertains to the
aspect of inexecutability of the compromise decree dated
20.8.1979. Any contrary view, would have the consequence of
effacing the stream of developments for over three decades;
more particularly when a formidable element of public interest
is involved.
35. To reiterate, the denunciation of the notice dated
11.4.2001 is principally founded on lack of competence of thePage 37
37
Nagar Panchayat/Municipal Council, it being not the owner of
the land involved. Further as contended by the appellants, it
has no authority as well to invoke the provisions of the
Highways Act. It is therefore imperative to briefly notice the
relevant provisions of the statutes applied.
36. The Act 1965, as its preamble would disclose, is to unify,
consolidate and amend the law relating to Municipal Councils
and to provide for constitution of Nagar Panchayat and
Industrial Townships in the State of Maharashtra. Prior to the
amendment thereto in the year 1994, the statute with the
same objectives was relatable to municipalities in the State of
Maharashtra. The expressions “council”, “local authority”,
“Municipal Area”, “Nagar Panchayat”, “Public Street”, “a
smaller urban area” as defined in Sections 2(6), 2(20), 2(24),
2(25A), 2(42) and 2(47A) respectively are extracted
hereinbelow:
2(6) “Council” means a municipal council
constituted or deemed to have been constituted
for a smaller urban area specified in a
notification issued in this respect, under clause
(2) of Article 243-Q of the Constitution of IndiaPage 38
38
or under sub-section (2) of Section 3 of this
Act;
2(20) “local authority” means a Council or a
Municipal Corporation constituted under the
Bombay Municipal Corporation Act (now the
Mumbai Municipal Corporation Act), or the
Bombay Provincial Municipal Corporations Act,
1949 or the City of Nagpur Corporation Act,
1948, or Zilla Parishad constituted under the
Maharashtra Zilla Parishads and Panchayat
Samitis Act, 1961, or a village panchayat
constituted under the Bombay Village
Panchayats Act, 1958.
2(24) “municipal area” means the territorial
area of a Council or a Nagar Panchayat;
2(25A) “Nagar Panchayat” means a Nagar
Panchayat constituted for a transitional area
notified under Section 341A of this Act;
2(42) “public street” means any street,–
(a) over which the public have a right of way ;
(b) heretofore levelled, paved, metalled
channelled, sewered, or repaired out of
municipal or other public funds; or
(c) which under the provisions of this Act
becomes, or is declared, a public street;
2(47A) “a smaller urban area” or “a
transitional area” shall mean an area specified
as “a smaller urban area” or “a transitional
area”, as the case may be, by a notification
issued under clause (2) of Article 243-Q of the
Constitution of India or under this Act;Page 39
39
37. The “Council”, as per the definition enumerated
hereinabove, would mean a municipal council constituted or
deemed to have been constituted for a smaller urban area
specified in the notification to that effect, as contemplated
under clause (2) of Article 243-Q of the Constitution of India or
under Section 3(2) of Act 1965. Whereas “Nagar Panchayat” is
an institution constituted for a transitional area as notified
under Section 341A of the Act, “municipal area” defines the
territorial area of a Council or a Nagar Panchayat. In terms of
Section 1(3), the provisions of the Act would come into force on
such date as the State Government would by notification in
the official gazette appoint. The parties are not at issue that
the Act 1965 applies to the area involved.
38. The Council is one of the municipal authorities as
contemplated under Section 7 of the Act 1965 charged with
the responsibility of carrying out the provisions there of for
each municipal area. Section 8 recognizes it to be a body
corporate with perpetual succession and a common seal,
possessing the power to acquire, hold and dispose of property,
and to enter into contracts and may by the said name sue, orPage 40
40
be sued through its Chief Officer. The duties and functions of
the Council as catalogued in Section 49 of the Act in addition
to the municipal governance of a municipal area with its limits
also make it incumbent for it to undertake and to make
reasonable provisions, amongst others for removing
obstructions and projections in public streets or places and in
spaces, not being private property, which are open to the
enjoyment of the public, whether such spaces are vested in the
Council or in Government. The plea that the Council is not
the owner of the land thus is of no relevance or significance.
39. Chapter XI of this Act deals with the powers of the
council pertaining to public streets and open spaces.
Whereas Sections 179 and 180 authorize the Municipal
Council through its Chief Officer, amongst others to remove
any projection, obstruction or encroachment, built or set up,
without its written permission, Section 187 empowers its Chief
Officer or any other municipal officer authorized by him, to
seize any article hawked or sold or exposed for sale, in
absence of a license granted by the bye-laws of the Council.
The contingencies in which the Chief Officer of the CouncilPage 41
41
may by a written notice, inter alia, require a person to
demolish any construction made, is set out in Section 189 of
the Act under 'Chapter XII Control over Buildings'.
40. Chapter XXVI-A deals with the Nagar Panchayats
whereunder, as per Section 341A, the State Government,
having regard to the factors mentioned in clause (2) of Article
243Q of the Constitution of India, may by notification in the
official gazette, specify an area in transition from a rural to an
urban area, to be a transitional area and constitute a Nagar
Panchayat therefor. In terms of Section 341D, the State
Government may, at any time, in accordance with the
provisions of the Act, by notification in the official gazette,
constitute a transitional area or a part thereof to be a smaller
urban area. Section 349 makes it obligatory on every
successor Council to continue to carry out any duty or to
manage, maintain or look after any institution, establishment,
undertaking, measure, work or service which the existing
Council had been responsible for carrying out, managing,
maintaining or looking after immediately before the appointedPage 42
42
day, until the State Government by order relieves the
successor Council of such duty or function.
41. The expressions “development”, “development plan”,
“local authority” and “planning authority” appearing in Act
1966 being of definitive significance are extracted hereunder
for immediate reference:
2(7) "development" with its grammatical
variation means the carrying out of buildings,
engineering, mining or other operations in, or
over or under, land or the making of any
material change, in any building or land or in
the use of any building or land [or any material
or structural change in any heritage building or
its precinct] [and includes [demolition of any
existing building structure or erection or part of
such building, structure or erection; and]
[reclamation,] redevelopment and lay-out and
sub-division of any land; and "to develop" shall
be construed accordingly];
2(9) "Development Plan" means a plan for the
development or re-development of the area
within the jurisdiction of a planning Authority
[[and includes revision of a development plan
and] proposals of a Special Planning Authority
for development of land within its jurisdiction];
2(15) "local authority" means-
(a) the Bombay Municipal Corporation
constituted under the Bombay Municipal
Corporation Act, or the Nagpur MunicipalPage 43
43
Corporation constituted under the City of
Nagpur Municipal Corporation Act, 1948 or any
Municipal Corporation constituted under the
Bombay Municipal Corporation Act, 1949,
(b) a Council and a Nagar Panchayat constituted
under the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Township Act
1965,
(c) (i) a Zilla Parishad constituted under the
Maharashtra Zilla Parishads and Panchayat
Samitis Act, 1961,
(ii) the Authority constituted under the
Maharashtra Housing and Area Development
Act, 1976,
(iii) the Nagpur Improvement Trust constituted
under the Nagpur Improvement Trust Act,
1936,
which is permitted by the State Government for
any area under its jurisdiction to exercise the
powers of a Planning Authority under this Act;
2(19) "Planning Authority" means a local
authority; and includes,-
(a) a Special Planning Authority constituted or
appointed or deemed to have been appointed
under Section 40;
(b) in respect of slum rehabilitation area
declared under Section 3C of the Maharashtra
Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971, the Slum
Rehabilitation Authority appointed under
Section 3A of the said Act; Page 44
44
42. The cumulative reading of the statutory definitions as
above would leave no manner of doubt that the “Council” or
“Nagar Panchayat” constituted under the Act 1965 would be a
planning authority under Act 1966. Section 42 mandates that
consequent upon the operation of any development plan or
plans under Chapter III of the Act, it would be the duty of
every planning authority to take such steps as would be
necessary to carry out the provisions thereof. The statutory
fiat is, thus unambiguous vis-à-vis the planning authority.
Under Chapter IV dwelling on “Control of development and use
of land included in development plans”, whereas Section 52
prescribes penalty for unauthorized development or for use
otherwise than in conformity with the development plan,
Section 53 empowers the planning authority to cause a notice
to be served on the owner of the unauthorized development
carried out in violation of Section 52(1), to take steps as may
be mentioned therein either to restore the land to its condition
existing before the said development or to secure compliance
with the conditions or with the permission earlier granted or
as modified, as the case may be. The power to require removalPage 45
45
of unauthorized development or use, is vested in the planning
authority to be invoked, after causing a notice to be served on
the owner, requiring him to either to discontinue the use or
cause alteration or removal of any building/work as the case
may be or to impose such condition(s) in the event of
continuance of such use. Such a move is contemplated if it
appears to the planning authority, that it is expedient to do so,
in the interest of proper planning of its areas, having regard to
the development plan prepared and any person aggrieved by
such notice may prefer an appeal to the State Government in
the manner prescribed.
43. In view of the statutory enjoinments and the legislative
intent, discernable from the above provisions, the omission to
mention Section 56 of Act 1966 in the notice dated 11.4.2001,
in the face of unequivocal empowerment of the Council, as the
planning authority under the Act 1966, in our estimate does
not render it illegal, unauthorized or non est. In our view, the
Municipal Council was well within its competence and
authority as the planning authority under the Act 1966, to
issue the notice dated 11.4.2001, being of the opinion that thePage 46
46
steps advised therein, were essential for the implementation of
the development plan, already prepared and finalized, for the
progress and advancement of the area.
44. The definitions of the words “encroachment” and
“highway” as framed in Sections 2(f) and 2(i) of the Highways
Act deserve extraction as well.
2(f) “encroachment “ means any unauthorised
occupation of any highway or part thereof, and
includes an unauthorised-
(i) erection of a building or any other structure,
balconies, porches, projections on or over
or overhanging the highway;
(ii) occupation of a highway beyond the
prescribed period, if any, for stacking
building materials or goods of any other
description, for exhibiting articles for sale,
for erecting poles, owning, tents, pandals,
hoardings and other similar erections or for
parking vehicles or stabling animals or for
any other purpose; and
(iii) excavations or dumps of any sort made or
extended on any highway or underneath
such highway;
2(i) “highway” means any [road, way or land]
which is declared to be a highway under Section
3. The expression includes-
(i) any land acquired or demarcated with
a view to construct a highway along
it;Page 47
47
(ii) the slopes, berms, borrow-pits, footpaths,
pavements and side, catch and
boundary drains attached to such
road or way;
(iii) all bridges, culverts, causeways,
carriageways and other structures
built on or across such road or way;
and
(iv) The trees, fences, posts, boundary,
furlong and mile stones, and other
highway accessories and materials
and material stacked on the road or
way;
45. Section 3 of the Highways Act, empowers the State
Government to declare any road and way of land, to be a
highway and classify it as a State highway (Special) etc. as
enumerated therein. Section 7 authorizes the State
Government to fix by notification in the official gazette in
respect of such highway, the highway boundary, the building
line or control line. Section 9 imposes a restriction on or after
the appointed day on the buildings between the highway
boundary and building line, and between building and control
line, notwithstanding anything contained in any law, custom,
agreement or instrument for the time being in force. In terms
of this Section, no person shall construct, form or lay anyPage 48
48
means of access to, or from, a highway or erect any building or
materially alter any existing building or make or extend any
excavation on any land lying between the highway boundary
and the building line and the control line, without the previous
permission in writing of the Highway Authority. Thereby, such
a person, without the permission in writing of the Highway
Authority, is also prohibited from using any building or alter
the use of any building in a manner, which in the opinion of
the said Authority, would in any way infringe any of the
provisions of the Act or interfere with the use of a highway
adjoining the land on which such building is erected.
46. Noticeably, Section 73 accords an overriding effect of the
provisions of the Highway Act over the provisions of any other
law made by the State Legislature insofar as such law is
inconsistent with the provisions thereof or the rules made
thereunder.
47. From the additional documents laid before this Court on
behalf of the Nagar Panchayat/Municipal Council, it would
transpire that by Notification No. BHA.3765/116348 datedPage 49
49
19.4.1967 of the Buildings and Communications Department,
Sachivalaye, Bombay, the Malegaon-Manmad-AhmednagarDhond-Patas
Road, as specified therein, was declared as a
state highway and that the said notification was published in
the official gazette. By a resolution of the State Government
dated 9.3.2001, the building line and the control line amongst
others of the State Highway and Main State highway were
fixed as hereunder:
Sr.
No
Status of road Building line Control line (places
like factory, cinema
hall, commercial
godown, market etc.
where crowd takes
place
Civil and
Industrial
Section
Non-Civil
Section
Civil and
Industrial
Section
Non-Civil
Section
3 State Highway
& Main State
Highway
20 Meters
from the
centre of
road
40
metres
from the
centre of
the road
37
metres
from the
centre of
road
50
metres
from the
centre of
road
48. As would be evident from hereinabove, the building line
was marked at 20 meters from the centre of the State
Highway & Main State Highway and the control line, 37
meters therefrom. Page 50
50
49. The declaration of Ahmad Nagar Manmad Highway No.
10 and the fixing of the building line and the control line
under the Highways Act are also matters of record and
supported by above documents.
50. To reiterate, the three legislations involved were in
existence when the compromise decree was passed. As
determined hereinabove, the compromise decree was not
based on any adjudication, declaring the title of the appellants
in the land which admittedly belonged to the State
Government. Though they were not adjudged to be
encroachers or trespassers thereupon, no finding was
recorded with regard to the legality or otherwise of their
structures vis-à-vis the regulatory edicts of these statutes.
There was no occasion to examine or decide these issues.
Irrefutably, events irreversible in form and impact have
occurred in between.
51. The maps/plans referred to in the course of arguments,
do prima facie reveal that the site in occupation of the
appellants do come within the control line fixed under thePage 51
51
Highways Act. In the singular facts and circumstances, the
insistent stand of the respondents, having regard to the
increasing confluence of devotees from all over the world and
the resultant congestion and inconvenience suffered, as well
as the multiplying challenge to the administration to maintain
law and order in the locality, the plea of implementation of the
development plan cannot be brushed aside as frivolous or
unwarranted. On a careful balance of the competing interests,
in the prevailing conspectus, we are constrained to hold that
the impugned notice does not call for interference. In our
view, the challenges laid to impeach the same do not merit
acceptance, in the teeth of the relevant provisions of the
legislations involved. Further, the initiative is predominantly
to espouse a public cause and thus ought not to be scuttled by
judicial intervention.
52. Significantly as claimed by the Nagar
Panchayat/Municipal Council, meanwhile it has undertaken
the exercise of widening the roads concerned and has cleared
the area of the encroachments and that except the structures
of the appellants, the operation is otherwise complete.
53. As the recorded facts demonstrate, the growingly felt
exigency of clearing the area of the structures and
encroachments in conflict with the statutes involved is in the
preponderant public interest and it would thus be apparently
inexpedient to trivialize the aspects of safety, security and
convenience of the burgeoning devotees and the local
population as persistently highlighted by the Respondents.
Any contrary view, in disregard to this otherwise salutary
cause, would signify a retrograde step in the context of greater
public import.
54. As noted hereinabove, the appellants have been
consistently held not to be encroachers or trespassers on the
land in their occupation, they having been let in thereto by the
erstwhile Gram Panchayat, the then owner thereof. The land
has since changed hands and is vested in the State
Government. In our view, both the appellants and the
respondents/defendants have to share the blame of leaving the
compromise decree unexecuted for over a decade whereafter
fresh rounds of confrontations surfaced leading to the present
situation. Be that as it may, though there has been no
determinance of the appellants’ right, title and interest in the
land, except that they are admittedly in continuous possession
since the year 1970 and carrying on their business there,
understandably, over the years, they have settled themselves in
their plots and are earning their livelihood from the income of
the business dealings. Though the build up of facts, since the
compromise decree cannot be discarded, the contemplated
measures of the respondents, to clear the area of the
encroachments in public interest and for its overall
development, would result in the displacement of the
appellants as a compelling necessity. As a corollary, they have
to be essentially rehabilitated or adequately compensated
bearing in mind, the impact of the passage of time on the
relevant perspectives since the date of the compromise decree.
55. The emerging situation is one where private interest is
pitted against public interest. The notion of public interest
synonymises collective welfare of the people and public
institutions and is generally informed with the dictates of
public trust doctrine – res communious i.e. by everyone in
common. Perceptionally health, law and order, peace, security
and a clean environment are some of the areas of public and
collective good where private rights being in conflict therewith
has to take a back seat. In the words of Cicero “the good of the
people in the chief law”.
56. The latin maxim “Salus Populi Est Suprema Lex” connotes
that health, safety and welfare of the public is the supreme in
law. Herbert Broom, in his celebrated publication, “A Selection
of Legal Maxims” has elaborated the essence thereof as
hereunder:
“This phrase is based on the implied agreement of
every member of the society that his own
individual welfare shall, in cases of necessity,
yield to that of the community; and that his
property, liberty and life shall, under certain
circumstances, be placed in jeopardy or even
sacrificed for the public good.”
The demand of public interest, in the facts of the instant case,
thus deserve precedence.
57. A Constitution Bench of this Court in K.T. Plantation
Private Limited and Another vs. State of Karnataka (2011)
9 SCC 1 in the context, amongst others, of the right toPage 55
55
compensation under Article 300A of the Constitution of India
did observe hereunder in paragraph 134:
“134. Hugo Grotius is credited with the invention
of the term “eminent domain” (jus or dominium
eminens) which implies that public rights always
overlap with private rights to property, and in the
case of public utility, public rights take precedence.
Grotius sets two conditions on the exercise of the
power of eminent domain: the first requisite is
public advantage and then compensation from the
public funds be made, if possible, to the one who
has lost his right. Application of the above principle
varies from countries to countries. German,
American and Australian Constitutions bar
uncompensated takings. Canada’s Constitution,
however, does not contain the equivalent of the
taking clause, and eminent domain is solely a
matter of statute law. The same is the situation in
the United Kingdom which does not have a written
constitution as also now in India after the Fortyfourth
Constitution Amendment.”
It was propounded that deprivation of property within the
meaning of Article 300A, generally speaking, must take place
for public purpose or public interest. The concept of eminent
domain, which applies when a person is deprived of his
property postulates, that the purpose must be primarily public
and not private interest, being merely incidentally beneficial to
the public. That the concept of public purpose had been given
a fairly expansive meaning and that it ought to be a condition
precedent for invoking Article 300A, was emphasized. It was
held that for deprivation of a person of his property under
Article 300A, requirement of public purpose is a precondition,
but no compensation or nil compensation or its illusiveness
has to be justified by the State on judicially justiciable
standards. That property rights at times are compared to
right to life which determine access to the basic means of
sustenance and considered as imperative to the meaningful
exercise of other rights guaranteed under Article 21 was noted.
It was concluded that public purpose is an inviolable,
prerequisite for deprivation of a person of his property under
Article 300A and that the right to claim compensation is
inbuilt in that article and when a person is deprived of his
property, the State has to justify both the grounds which may
depend on the scheme and object of the statute, legislative
policy and other related factors.
58. Judicial solicitude, in the context of the constitutional
guarantee of equality and right to life, in the wake of removal
of unauthorized encroachments from a public place and the
consequential forcible eviction of the occupants, presidingly
pervades the sentient and profound fabric of Olga Tellis &
Others vs. Bombay Municipal Corporation and Others
(1985)3 SCC 545. Though upholding the contemplated action
under the statute involved for the removal of the petitioners
the pavements and basti slum dwellers of the Bombay city,
this Court defined the right to livelihood to be an integral
part of the right to life. It was acknowledged that the
petitioners therein on their eviction would be deprived of their
livelihood, albeit, their existence by way of encroachments on
footpaths and pavements, was strongly discountenanced. It
was empahsised that footpaths and pavements are public
properties, intended to serve the convenience of general public
and are not laid for private use which, if permitted, would
frustrate the very object of carving out the same. That the
main reason for laying down footpaths and pavements was to
enable the pedestrians go about their daily affairs with a
reasonable measure of safety and security was emphasized.
Holding that such a facility which had matured into a right of
the pedestrians, cannot be set at naught by allowing
encroachments to be made on the pavements, the plea that
the claim of the pavement dwellers to put up construction on
such pavements ought to be preferred, was assertively
negated. All these notwithstanding, it was ruled that the
forcible eviction of such squatters therein, even if they are
resettled in other sites, would totally disrupt the economic life
of their households. In the textual facts, however, having
noted the proposed re-habilitation schemes/programmes of
the State Government, appropriate directions were issued.
59. Apropos the scenario, where the petitioners therein had
been denied compensation for their land, taken over by the
respondents and that too without initiating any process for
acquiring the same in accordance with law, this Court in
Tukaram Kana Joshi and Others vs. Maharashtra
Industrial Development Corporation and Others (2013)1
SCC 353, proclaimed in the context of Article 300A of the
Constitution of India, that right to property was not only a
constitutional or statutory right but also a human right to bePage 59
59
construed in the realm of individual rights, such as right to
health, livelihood, shelter, employment etc. It was reminisced
that in a welfare state, statutory authorities are bound not
only to pay adequate compensation but are also under a legal
obligation to rehabilitate the persons displaced. The spectre of
the uprooted persons becoming vagabonds with anti-national
propensities in case of non-fulfillment of such obligations by
the State, was portended with concern. The observation in K.
Krishna Reddy vs. Special Deputy Collector (1988) 4 SCC
163 qua the relevance and significance of monetory
compensation, was quoted with approval:
“12. … After all money is what money buys.
What the claimants could have bought with
the compensation in 1977 cannot do in 1988.
Perhaps, not even one-half of it. It is a
common experience that the purchasing power
of rupee is dwindling. With rising inflation, the
delayed payment may lose all charms and
utility of the compensation. In some cases, the
delay may be detrimental to the interests of
claimants. The Indian agriculturists generally
have no avocation. They totally depend upon
land. If uprooted, they will find themselves
nowhere. They are left high and dry. They have
no savings to draw. They have nothing to fall
back upon. They know no other work. They
may even face starvation unless rehabilitated.Page 60
60
In all such cases, it is of utmost importance
that the award should be made without delay.
The enhanced compensation must be
determined without loss of time.”
60. As referred to hereinabove, inspite of the orders dated
18.10.2010 and 26.11.2015, requiring the State in particular to
ascertain the availability of alternative sites of land to
accommodate the appellants, no affirmative response has been
laid before this Court. To the contrary, as would be discernible
from the affidavit filed by the State dated March 21, 2014, no
vacant parcel of land is said to be available for the purpose in
the immediate vicinity of the land in occupation of the
appellants. Though the appellants in their affidavit filed prior
thereto had indicated five sites, in the face of the obdurate and
rigid denial of the State about the feasibility thereof, any
direction to adjust them thereat is uncalled for.
61. The consequence of the appellants being uprooted from
their present sites of business, to reiterate would spell an
overall dislocation in their lives. That many or all of them have
buildings elsewhere in the locality, assessed to municipal tax, in
our comprehension, cannot fully neutralize this fallout. ThePage 61
61
appellants have been conducting their business at the present
sites for over 45 years and understandably over the time, have
built up the same with accompanying goodwill and reputation.
Their eviction would assuredly eventuate a human problem.
Nevertheless for the cause of paramount public interest, their
eviction is unavoidable.
62. In this precipitable eventuality, a realistic balance of the
attendant exigencies is the clarion call of justice. As adverted
to hereinabove, even on the date of the conclusion of the
arguments, this Court had desired to be informed by the State
about the availability of alternative sites of land to
accommodate the appellants. Inspite of assurances given, by
its learned counsel, no information has been provided. In this
premise, having regard to the ensuing consequences qua the
appellants, we consider it appropriate to direct, to start with,
the State and its functionaries to undertake an exercise to
identify a suitable site to accommodate the appellants. We
make it clear that even if such a site is not available in the
immediate proximity of the land presently in their occupation, aPage 62
62
sincere endeavour would be made to locate a plot as near as
possible thereto. The District Administration in coordination
with the Sansthan and other authorities, as deemed necessary
in law, would undertake the process. The appellants would also
cooperate in the pursuit and would not delay the completion
thereof.
63. However, in case the endeavour to identify an alternative
plot does not yield any result inspite of sincere efforts, the
appellants would then be entitled to adequate monetary
compensation as quantified herein.
64. It is a matter of record and as has been noted by the
High Court, the appellants occupy two categories of plots i.e.
16’ x 11’ and 7’ x 11’, where trade/business is being carried on.
Though monetary compensation, ipso facto, on a consideration
of all attendant factors may not be an exact substitute of the
benefits presently enjoyed with the future prospects, we are of
the view that, having regard to the permissible ponderables
and also the passage of time in between, a lump sum of Rs. 20
lakhs and Rs. 15 lakhs each respectively for the bigger and
smaller shops/stalls, as noted hereinabove would be a
reasonable palliative to the appellants. We order accordingly. It
is reiterated that the compensation, as indicated hereinabove,
would be payable to the appellants only if an alternative site is
not feasible. The entire process on both counts, however
should be completed within a period of six weeks herefrom.
The State Government and the Sansthan would bear the
amount of compensation, payable in equal shares and would
deposit the same in the Bombay High Court within the period of
six weeks aforementioned. The amount already deposited by
the Sansthan in terms of the High Court’s order, if not
withdrawn, shall be adjusted against this amount. The
allotment of the new site/deposit, as directed, would be a
condition precedent for further action in terms of the impugned
notice. It is also ordered that on the deposit being made with
the High Court, the Registrar General of the High Court would
make suitable arrangements for disbursement thereof to the
appellants as due to them, as expeditiously as possible,
however on proper identification. Page 64
64
65. The appeals are dismissed, however subject to the above
terms. No costs.
…....................................J.
(V. GOPALA GOWDA)
…............................................J.
(AMITAVA ROY)
NEW DELHI;
FEBRUARY 22, 2016.
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