SAYYED RATANBHAI SAYEED (D)TH. LRS & ORS Vs. SHIRDI NAGAR PANCHAYAAT & ANR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 14016 of 2015, Judgment Date: Feb 22, 2016

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14016 OF 2015

SAYYED RATANBHAI SAYEED (D) TH. LRS.& ORS. .…APPELLANTS
VERSUS

SHIRDI NAGAR PANCHAYAT & ANR. ...RESPONDENTS

WITH
CIVIL APPEAL NO. 3154 OF 2011

SAYYED RATANBHAI SAYEED (D) TH. LRS. & ANOTHER …APPELLANTS

VERSUS

THE TAHASILDAR, RAHATA AND OTHERS ...RESPONDENTS

WITH

CIVIL APPEAL NOS. 3155-3157 OF 2011

GANGADHAR KASHINATH TURKANE & ORS. ETC. ..APPELLANTS

VERSUS

THE STATE OF MAHARASHTRA & ORS. ETC. ..RESPONDENTS

WITH

CIVIL APPEAL NO. 3158 OF 2011

KRUSHNARAO (D) THR. L.R. .…APPELLANT

VERSUS

THE TAHASILDAR, RAHATA AND ORS. ...RESPONDENTS

WITH

CIVIL APPEAL NO. 14017 OF 2015

PRADEEP AND ANOTHER .…APPELLANTS

VERSUS

SHIRDI NAGAR PANCHAYAT & ANR. ...RESPONDENTS

J U D G M E N T

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 Nagar 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
declaration 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 in 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 the 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 the 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/TPV-IV/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 dated 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.

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 their 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. 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. On 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 for 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 to 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, 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
High 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 of 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 Judge-II 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 their 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,
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 with 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 and 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 as 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 as 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, any 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 the
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.

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 and 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
the 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.
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 the
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 of 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, the 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 an 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 altered 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 the 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
India 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

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;

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, or 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 Council 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 appointed
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 Municipal 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,

(ii) the Authority constituted under the Maharashtra Housing and Area
Development Act, 1976,

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14016 OF 2015

SAYYED RATANBHAI SAYEED (D) TH. LRS.& ORS. .…APPELLANTS
VERSUS

SHIRDI NAGAR PANCHAYAT & ANR. ...RESPONDENTS

WITH
CIVIL APPEAL NO. 3154 OF 2011

SAYYED RATANBHAI SAYEED (D) TH. LRS. & ANOTHER …APPELLANTS

VERSUS

THE TAHASILDAR, RAHATA AND OTHERS ...RESPONDENTS

WITH

CIVIL APPEAL NOS. 3155-3157 OF 2011

GANGADHAR KASHINATH TURKANE & ORS. ETC. ..APPELLANTS

VERSUS

THE STATE OF MAHARASHTRA & ORS. ETC. ..RESPONDENTS

WITH

CIVIL APPEAL NO. 3158 OF 2011

KRUSHNARAO (D) THR. L.R. .…APPELLANT

VERSUS

THE TAHASILDAR, RAHATA AND ORS. ...RESPONDENTS

WITH

CIVIL APPEAL NO. 14017 OF 2015

PRADEEP AND ANOTHER .…APPELLANTS

VERSUS

SHIRDI NAGAR PANCHAYAT & ANR. ...RESPONDENTS

J U D G M E N T

AMITAVA ROY,J.

2. The contextual facts encompass the issues in all the appeals and
permit analogous adjudication.

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

2(15) "local authority" means-

(b) a Council and a Nagar Panchayat constituted under the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Township Act 1965,

(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;

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 removal 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 the 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-

any land acquired or demarcated with a view to construct a highway along
it;

the slopes, berms, borrow-pits, foot-paths, pavements and side, catch and
boundary drains attached to such road or way;

all bridges, culverts, causeways, carriageways and other structures built
on or across such road or way; and

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 any 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 dated 19.4.1967 of the Buildings and Communications
Department, Sachivalaye, Bombay, the Malegaon-Manmad-Ahmednagar-Dhond-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:

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.

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 the 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 to 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 Forty-fourth
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 be 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. 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. The 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, a 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.

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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