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Wednesday, October 12, 2016

illegal encroachment and structure erected by the appellant on a Municipal Land = 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.= 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 = 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. 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 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.

                                                              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
-----------------------
[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


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