ASIKALI AKBARALI GILANI ETC Vs. NASIRHUSAIN MAHEBUBBHAI CHAUHAN & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10122-10123 of 2016, Judgment Date: Oct 07, 2016
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. ….Appellants
Vs.
Nasirhusain Mahebubbhai Chauhan & Ors. ….Respondents
J U D G M E N T
A.M.KHANWILKAR,J.
Leave granted.
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, Kalol[1], 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.[4]held that ordinarily public streets must be
used by the Municipality as public streets for the public right of way and
cannot 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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[1] [2] AIR 1972 Guj.54 (para 7)
[3] [4] . Civil Appeal No.7356/2012 decided on 8th Oct.2012
[5] [6] (1974)2 SCC 506
[7] [8] (2004) 8 SCC 733