We have no hesitation in accepting the argument of the State
Authorities that no right can enure in favour of the
allottees/occupants of the structure on a public property, in respect
of which no formal lease deed has been executed and that too when
no prior approval of the State Government for such allotment and
grant of lease has been obtained by the Municipality. Understood
thus, the direction issued by the High Court in paragraphs 14 and
15 of the impugned judgment, does not merit any interference.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.10122-10123 /2016
(arising out of SLP (Civil) Nos.24281-82/2013)
Asikali Akbarali Gilani etc.Vs. Nasirhusain Mahebubbhai Chauhan & Ors.
Citation:AIR 2016 SC4766
2. These appeals challenge the judgment and final order passed
by the Division Bench of the High Court of Gujarat at Ahmedabad
dated 11th July 2013 in Writ Petition (PIL) No.144 of 2011 and Writ
Petition (PIL) No.13 of 2013.
3. The respondent No.1 had filed a Writ Petition as Public
Interest Litigation for issuance of direction against respondent No.3
to 5 (State Authorities) to remove the illegal encroachment and
structure erected by the appellant on a Municipal Land behind
Urdu Kumar Shala No.7 and on the public road going from
Bharwadi Road and the surrounding area. The High Court on the
basis of the information furnished, noticed that besides the
structure referred to in the Writ Petition, there were in all 869
leases given by the Municipality to different persons without
authority of law and on which constructions have been put up
without any formal lease executed in favour of concerned
persons/occupants nor the approval of the State Government in
terms of Section 65 of Gujarat Municipality Act, 1963 was obtained.
The Division Bench after analysing Sections 65, 80 and 146 of the
Act and the decisions in Parasram Manjimal & Ors. V. The Kalol
Municipality, Kalol1
, Dipak Kumar Mukherjee v. Kolkata
Municipal Corporation & Ors.2
, Sri K.Ramadas Shenoy v. The
Chief Officers, Town Municipal Council, Udipi & Ors.3
And
Friends Colony Development Committee v. State of Orissa &
Ors.4held that ordinarily public streets must be used by the
Municipality as public streets for the public right of way and cannot
1 AIR 1972 Guj.54 (para 7)
2 . Civil Appeal No.7356/2012 decided on 8th Oct.2012
3 (1974)2 SCC 506
4 (2004) 8 SCC 733
be let out or allowed to be used for any other purpose. It held that
the Municipality is a trustee and must, therefore, ensure that
public streets are not encroached upon. Further, the Municipality
cannot lease out any portion of the public street. The High Court in
paragraph 9 of the impugned judgment, noted the concession given
by the counsel for the Municipality that none of the resolutions
granting lease rights to private person(s) were approved by the
General Board of the Municipality and that the subject structures
were allowed to be constructed in absence of any formal sanction
given by the Competent Authority in that behalf. Paragraph 9 of the
impugned judgment reads thus:
“In the present case, Mr. Sanchela, the learned advocate appearing
for the Municipality has conceded that none of the Resolutions was
approved by the General Board of the Municipality and not only that,
but no plans for the construction have also been sanctioned. It has
been conceded by Mr. Sanchela, the learned advocate that
innumerable constructions have come up all over the town as a result
of such grant of land indiscriminately in flagrant violation of the
provisions of the Act.”
4. The High Court, accordingly, issued directions to the Collector
in the following terms:
“14. In such circumstances, we are left with no other alternative but to
direct the Collector to exercise power in terms of Section 258 of the Act,
by taking possession of the property after removing the illegal
occupants of the same and demolition of the existing structure. We
further find that the cases do not come even under sub-section (2) of
Section 65 of the Act, and thus, the illegal occupants or the lessees
cannot have any protection under the law.
15. Let the matter appear after two months, when the Collector will
report compliance of this order.”
5. This decision is the subject matter of the present appeals. The
appellant would contend that the Writ Petition was filed out of
political vendetta. Further, the Municipality had granted plot to the
appellant pursuant to the resolution passed by the Executive
Committee of the Municipality on 19th March 1988 allotting 50 x 50
land on the basis of rent at Rs.50/- on specified terms. It is
contended that the direction given by the High Court to the
Collector transcends beyond the mandate of Section 258 of the Act.
It is also contended that persons affected by the directions given by
the High Court, therefore, have approached the High Court by way
of civil applications.
6. The respondent-Municipality and the State Authorities have
supported the view taken by the High Court. The learned counsel
for the State also pointed out that no previous permission of the
State Government was taken by the Municipality before granting
869 stated leases to concerned persons, which was imperative in
terms of Section 65(2) of the Act. It was contended that mere
passing of a resolution by the Executive Committee of the
Municipality is not enough; and in any case no structure can be
permitted on public streets in terms of Section 146 of the Act.
7. We have heard the learned counsel appearing for the parties at
length. It is indisputable that no formal lease has been executed in
favour of the appellant or similarly placed persons for allotting the
subject plot of land. Further, no prior permission was obtained from
the State Government before allotting any portion of the municipal
land or public property, much less on the land earmarked as public
street. The High Court, in paragraph 2 of the impugned judgment,
has encapsulated the substance of the matters in issue, which
reads thus:
“The sum and substance of the allegation contained in
these applications is that by virtue of the Resolution passed by the
Executive Committee of the Virangam Municipality, 869 different
leases have been given to different persons even authorizing them
to make construction, but no formal lease-deed has been executed,
nor have this decision been approved by the State Government in
terms of Section 65 of the Gujarat Municipalities Act, 1963[the Act,
hereinafter].”
8. The fact that a resolution has been passed by the Executive
Committee of the Municipality or a letter of allotment is issued by
the Municipality, cannot legitimize the occupation of a public
property in absence of a formal lease deed executed in that behalf
and moreso in respect of a land falling within the public street. It is
indisputable that the respondent-Municipality has been making
such allotments since 1956 without any prior approval of the State
Government. The break-up of such allotments made year wise by
the respondent-Municipality has been given as under:
VIRAMGAM MUNICIPALITY
THE LIST OF THE RESOLUTIONS PASSED BY THE EXECUTIVE COMMITTEE
Year *
No.
Year * No. Year * No.
1956 3 1977 15 1988 58
1962 9 1978 42 1989 5
1963 3 1979 22 1990 4
1969 20 1980 32 1991 4
1970 60 1981 1 1992 18
1971 130 1982 8 1993 32
1972 96 1983 3 1996 3
1973 82 1984 24 1998 34
1974 15 1985 15 2000 32
1975 3 1986 30 2007 9
1976 17 1987 40 Total 869
Note: * The number of tenants that are provided property on rent
by executive committee resolutions.
9. We have no hesitation in accepting the argument of the State
Authorities that no right can enure in favour of the
allottees/occupants of the structure on a public property, in respect
of which no formal lease deed has been executed and that too when
no prior approval of the State Government for such allotment and
grant of lease has been obtained by the Municipality. Understood
thus, the direction issued by the High Court in paragraphs 14 and
15 of the impugned judgment, does not merit any interference.
10. The argument of the appellant that the direction given by the
High Court transcends beyond the mandate of Section 258 will be
of no avail. Section 258 of the Gujarat Municipalities Act, 1963
reads thus:
“258(1) If, in the opinion of the Collector, the execution of any order
or resolution of a municipality, or the doing of anything which is
about to be done or is being done by or on behalf of a municipality, is
causing or is likely to cause injury or annoyance to the public or to
lead to a breach of the peace or is unlawful, he may by order in
writing under his signature suspend the execution or prohibit the
doing thereof and where the execution of any work in pursuance of
the order or resolution of the municipality is already commenced or
completed direct the municipality to restore the position in which it
was before the commencement of the work”.
11. On a plain reading of this provision, it is evident that the
Municipality is obliged to restore the public property as it had
originally existed, if such direction is issued by the Collector. The
direction given by the High Court to take possession of the
concerned property and remove illegal occupants therefrom and to
demolish the unauthorized structure is not in derogation of the said
provision; and particularly when the Collector is expected to
exercise that power by following due process.
12. Indeed, the Collector may have to take action on case to case
basis in relation to the stated 869 leases or unauthorized
occupation of the concerned public property and structures put up
thereon without a sanctioned plan. However, considering the fact
that some of the structures may be in existence for quite some time
and have been tolerated for all these years, it may warrant a
humane approach to be taken by the State Authorities. For that the
State Government must evolve a comprehensive policy, if already
not in existence; and thereafter the Collector may proceed to take
action in respect of such unauthorized occupation and
encroachment on the public property.
13. If such a policy is already in place then the Collector may
proceed in conformity with the existing policy.
14. However, if a new policy is required to be formulated, it may
provide for rehabilitation of the unauthorized occupants to
alternative location, if the unauthorized structure in occupation of a
given person has been tolerated for quite some time or has been
erected before the cut off date to be specified in that regard. If the
structure has been erected after the cut off date, no right of
rehabilitation would enure to the occupant(s) of the unauthorized
structure(s) on the public property; and such structure(s), in any
case will have to be removed in terms of the direction given by the
High Court. The State Government may formulate an appropriate
policy within six months from today, if already not in existence.
15. The State Government will be free to consider the request of
the occupants of unauthorized structures on the subject public
property including to ratify the resolution passed in their favour by
the Executive Committee of the respondent-Municipality, provided
it is in conformity with the expounded policy. If that request is
accepted, the Government will be free to provide for such terms and
conditions, as may be permissible in law.
16. The Collector may examine the claim of the occupants of the
concerned unauthorized structure(s) standing on the subject public
property on case to case basis and take suitable action as may be
permissible in law.
17. If the occupation of the subject public property is not in
conformity with the policy of the State Government and the
structure cannot be tolerated thereunder, the Collector must then
proceed to take action against such structure(s) within two months
in accordance with law, for complying the directions given by the
High Court.
18. We dispose of these appeals in the above terms with no order
as to costs.
……………………………CJI
(T.S.THAKUR)
……………………………..J.
(A.M.KHANWILKAR)
New Delhi,
Dated: 7th October, 2016
Print Page
Authorities that no right can enure in favour of the
allottees/occupants of the structure on a public property, in respect
of which no formal lease deed has been executed and that too when
no prior approval of the State Government for such allotment and
grant of lease has been obtained by the Municipality. Understood
thus, the direction issued by the High Court in paragraphs 14 and
15 of the impugned judgment, does not merit any interference.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.10122-10123 /2016
(arising out of SLP (Civil) Nos.24281-82/2013)
Asikali Akbarali Gilani etc.Vs. Nasirhusain Mahebubbhai Chauhan & Ors.
Citation:AIR 2016 SC4766
2. These appeals challenge the judgment and final order passed
by the Division Bench of the High Court of Gujarat at Ahmedabad
dated 11th July 2013 in Writ Petition (PIL) No.144 of 2011 and Writ
Petition (PIL) No.13 of 2013.
3. The respondent No.1 had filed a Writ Petition as Public
Interest Litigation for issuance of direction against respondent No.3
to 5 (State Authorities) to remove the illegal encroachment and
structure erected by the appellant on a Municipal Land behind
Urdu Kumar Shala No.7 and on the public road going from
Bharwadi Road and the surrounding area. The High Court on the
basis of the information furnished, noticed that besides the
structure referred to in the Writ Petition, there were in all 869
leases given by the Municipality to different persons without
authority of law and on which constructions have been put up
without any formal lease executed in favour of concerned
persons/occupants nor the approval of the State Government in
terms of Section 65 of Gujarat Municipality Act, 1963 was obtained.
The Division Bench after analysing Sections 65, 80 and 146 of the
Act and the decisions in Parasram Manjimal & Ors. V. The Kalol
Municipality, Kalol1
, Dipak Kumar Mukherjee v. Kolkata
Municipal Corporation & Ors.2
, Sri K.Ramadas Shenoy v. The
Chief Officers, Town Municipal Council, Udipi & Ors.3
And
Friends Colony Development Committee v. State of Orissa &
Ors.4held that ordinarily public streets must be used by the
Municipality as public streets for the public right of way and cannot
1 AIR 1972 Guj.54 (para 7)
2 . Civil Appeal No.7356/2012 decided on 8th Oct.2012
3 (1974)2 SCC 506
4 (2004) 8 SCC 733
be let out or allowed to be used for any other purpose. It held that
the Municipality is a trustee and must, therefore, ensure that
public streets are not encroached upon. Further, the Municipality
cannot lease out any portion of the public street. The High Court in
paragraph 9 of the impugned judgment, noted the concession given
by the counsel for the Municipality that none of the resolutions
granting lease rights to private person(s) were approved by the
General Board of the Municipality and that the subject structures
were allowed to be constructed in absence of any formal sanction
given by the Competent Authority in that behalf. Paragraph 9 of the
impugned judgment reads thus:
“In the present case, Mr. Sanchela, the learned advocate appearing
for the Municipality has conceded that none of the Resolutions was
approved by the General Board of the Municipality and not only that,
but no plans for the construction have also been sanctioned. It has
been conceded by Mr. Sanchela, the learned advocate that
innumerable constructions have come up all over the town as a result
of such grant of land indiscriminately in flagrant violation of the
provisions of the Act.”
4. The High Court, accordingly, issued directions to the Collector
in the following terms:
“14. In such circumstances, we are left with no other alternative but to
direct the Collector to exercise power in terms of Section 258 of the Act,
by taking possession of the property after removing the illegal
occupants of the same and demolition of the existing structure. We
further find that the cases do not come even under sub-section (2) of
Section 65 of the Act, and thus, the illegal occupants or the lessees
cannot have any protection under the law.
15. Let the matter appear after two months, when the Collector will
report compliance of this order.”
5. This decision is the subject matter of the present appeals. The
appellant would contend that the Writ Petition was filed out of
political vendetta. Further, the Municipality had granted plot to the
appellant pursuant to the resolution passed by the Executive
Committee of the Municipality on 19th March 1988 allotting 50 x 50
land on the basis of rent at Rs.50/- on specified terms. It is
contended that the direction given by the High Court to the
Collector transcends beyond the mandate of Section 258 of the Act.
It is also contended that persons affected by the directions given by
the High Court, therefore, have approached the High Court by way
of civil applications.
6. The respondent-Municipality and the State Authorities have
supported the view taken by the High Court. The learned counsel
for the State also pointed out that no previous permission of the
State Government was taken by the Municipality before granting
869 stated leases to concerned persons, which was imperative in
terms of Section 65(2) of the Act. It was contended that mere
passing of a resolution by the Executive Committee of the
Municipality is not enough; and in any case no structure can be
permitted on public streets in terms of Section 146 of the Act.
7. We have heard the learned counsel appearing for the parties at
length. It is indisputable that no formal lease has been executed in
favour of the appellant or similarly placed persons for allotting the
subject plot of land. Further, no prior permission was obtained from
the State Government before allotting any portion of the municipal
land or public property, much less on the land earmarked as public
street. The High Court, in paragraph 2 of the impugned judgment,
has encapsulated the substance of the matters in issue, which
reads thus:
“The sum and substance of the allegation contained in
these applications is that by virtue of the Resolution passed by the
Executive Committee of the Virangam Municipality, 869 different
leases have been given to different persons even authorizing them
to make construction, but no formal lease-deed has been executed,
nor have this decision been approved by the State Government in
terms of Section 65 of the Gujarat Municipalities Act, 1963[the Act,
hereinafter].”
8. The fact that a resolution has been passed by the Executive
Committee of the Municipality or a letter of allotment is issued by
the Municipality, cannot legitimize the occupation of a public
property in absence of a formal lease deed executed in that behalf
and moreso in respect of a land falling within the public street. It is
indisputable that the respondent-Municipality has been making
such allotments since 1956 without any prior approval of the State
Government. The break-up of such allotments made year wise by
the respondent-Municipality has been given as under:
VIRAMGAM MUNICIPALITY
THE LIST OF THE RESOLUTIONS PASSED BY THE EXECUTIVE COMMITTEE
Year *
No.
Year * No. Year * No.
1956 3 1977 15 1988 58
1962 9 1978 42 1989 5
1963 3 1979 22 1990 4
1969 20 1980 32 1991 4
1970 60 1981 1 1992 18
1971 130 1982 8 1993 32
1972 96 1983 3 1996 3
1973 82 1984 24 1998 34
1974 15 1985 15 2000 32
1975 3 1986 30 2007 9
1976 17 1987 40 Total 869
Note: * The number of tenants that are provided property on rent
by executive committee resolutions.
9. We have no hesitation in accepting the argument of the State
Authorities that no right can enure in favour of the
allottees/occupants of the structure on a public property, in respect
of which no formal lease deed has been executed and that too when
no prior approval of the State Government for such allotment and
grant of lease has been obtained by the Municipality. Understood
thus, the direction issued by the High Court in paragraphs 14 and
15 of the impugned judgment, does not merit any interference.
10. The argument of the appellant that the direction given by the
High Court transcends beyond the mandate of Section 258 will be
of no avail. Section 258 of the Gujarat Municipalities Act, 1963
reads thus:
“258(1) If, in the opinion of the Collector, the execution of any order
or resolution of a municipality, or the doing of anything which is
about to be done or is being done by or on behalf of a municipality, is
causing or is likely to cause injury or annoyance to the public or to
lead to a breach of the peace or is unlawful, he may by order in
writing under his signature suspend the execution or prohibit the
doing thereof and where the execution of any work in pursuance of
the order or resolution of the municipality is already commenced or
completed direct the municipality to restore the position in which it
was before the commencement of the work”.
11. On a plain reading of this provision, it is evident that the
Municipality is obliged to restore the public property as it had
originally existed, if such direction is issued by the Collector. The
direction given by the High Court to take possession of the
concerned property and remove illegal occupants therefrom and to
demolish the unauthorized structure is not in derogation of the said
provision; and particularly when the Collector is expected to
exercise that power by following due process.
12. Indeed, the Collector may have to take action on case to case
basis in relation to the stated 869 leases or unauthorized
occupation of the concerned public property and structures put up
thereon without a sanctioned plan. However, considering the fact
that some of the structures may be in existence for quite some time
and have been tolerated for all these years, it may warrant a
humane approach to be taken by the State Authorities. For that the
State Government must evolve a comprehensive policy, if already
not in existence; and thereafter the Collector may proceed to take
action in respect of such unauthorized occupation and
encroachment on the public property.
13. If such a policy is already in place then the Collector may
proceed in conformity with the existing policy.
14. However, if a new policy is required to be formulated, it may
provide for rehabilitation of the unauthorized occupants to
alternative location, if the unauthorized structure in occupation of a
given person has been tolerated for quite some time or has been
erected before the cut off date to be specified in that regard. If the
structure has been erected after the cut off date, no right of
rehabilitation would enure to the occupant(s) of the unauthorized
structure(s) on the public property; and such structure(s), in any
case will have to be removed in terms of the direction given by the
High Court. The State Government may formulate an appropriate
policy within six months from today, if already not in existence.
15. The State Government will be free to consider the request of
the occupants of unauthorized structures on the subject public
property including to ratify the resolution passed in their favour by
the Executive Committee of the respondent-Municipality, provided
it is in conformity with the expounded policy. If that request is
accepted, the Government will be free to provide for such terms and
conditions, as may be permissible in law.
16. The Collector may examine the claim of the occupants of the
concerned unauthorized structure(s) standing on the subject public
property on case to case basis and take suitable action as may be
permissible in law.
17. If the occupation of the subject public property is not in
conformity with the policy of the State Government and the
structure cannot be tolerated thereunder, the Collector must then
proceed to take action against such structure(s) within two months
in accordance with law, for complying the directions given by the
High Court.
18. We dispose of these appeals in the above terms with no order
as to costs.
……………………………CJI
(T.S.THAKUR)
……………………………..J.
(A.M.KHANWILKAR)
New Delhi,
Dated: 7th October, 2016
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