Bombay High Court
Mohansing Uttamsing Tanwani vs The State Of Maharashtra on 4 August, 2010
Author: B.R. Gavai
Bench: B.R. Gavai, S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
1] WRIT PETITION NO.2297 of 1996
Mohansing Uttamsing Tanwani
residing at Kumar Nagar
Sakri Road, Dhule.
Petitioner
Versus
1] The State of Maharashtra
2] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
3]Shri Sitaram Kunte
Collector of Dhule,
Dhule.
4] Shri P.K. Jain
Incharge District Superintendent
of Police, & SRP Commandant,
Dhule.
5] Shri Newasi,
Chief Officer, Dhule Municipal Council
Dhule.
6] Shri Wani
Town Planner, Dhule Municipal Council
Dhule.
7] Executive Engineer
Maharashtra State Electricity Board
Dhule.
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8] The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
Mr R.B. Raghuwanshi, Advocate holding for Mr. V.A. Nimbalkar,
Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.1
Mr. Parag Barde, Advocate for respondent No.5.
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.8.
2]
With WRIT PETITION NO. 2306 of 1996
1] Shri Ramdas Tukaram Wagh
2] Shri Laxman Tukaram Wagh
both carrying on business of
Welding workshop at
Chalisgaon Malegaon Cross Road,
Dhule.
.. Petitioners.
Versus.
1] The State of Maharashtra
2] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
3]Shri Sitaram Kunte
Collector of Dhule,
Dhule.
4] Shri P.K. Jain
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Incharge District Superintendent
of Police, & SRP Commandant,
Dhule.
5] Shri Newasi,
Chief Officer, Dhule Municipal Council
Dhule.
6] Shri Wani
Town Planner, Dhule Municipal Council
Dhule.
7] Executive Engineer
Maharashtra State Electricity Board
Dhule.
8] The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
Mr. A.B. Girase, Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.1
Mr. Parag Barde, Advocate for respondent No.6
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.8.
3] WITH WRIT PETITION NO. 2307 OF 1996
1] Satish Bhagwandas Wadhwa
Satish Radio.
2] Ramlal Lalchand Atlani,
Saraswati Radio.
3] Ashok Dayaprasad Bhagat
Standard Radio.
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4] Ashok Rachiram Khatri
Mahalaxmi Watch & Radio.
5] Fula Dagadu Patil
Indirabai Shetki Kendra.
All shop owners at Jail Road Dhule. ..
Petitioners
Versus.
1] The State of Maharashtra
2] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
3] Secretary to the Government
of Maharashtra, Urban Development
Department, Mantralaya, Bombay.
4]Shri Sitaram Kunte
Collector of Dhule,
Dhule.
5] Shri P.K. Jain
Ex. Incharge District Superintend
of Police & Commandant
Dhule.
6] Shri Ramesh Mewasi,
Chief Officer, Dhule Municipal Council
Dhule.
7] Shri Wani
Town Planner, Dhule Municipal Council
Dhule.
8] Shri Ahirrao
Dhule Municipal Council, Dhule
District Dhule.
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9] Shri B.B. Gite,
Octroi Sperintendent and Member
of the Encroachment Removal Committee
Dhule Municipal Council, Dhule.
10] Dhule Municipal council,
Dhule through President
Shri C.P. Galai.
11] Shri Pagare,
Executive Engineer (Urban)
Maharashtra State Electricity Board
Dhule.
12] Shri J.C. Menaria
Telecom Engineer, Dhule
Mundada Market, Dhule.
13]The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
Mr. A.B. Girase, Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.1 to 4.
Mr. Parag Barde, Advocate for respondent No.9
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.13
Mr. V.D. Sonawane, Advocate for R. No. 12.
4] with WRIT PETITION NO. 2308 OF 1996
1] Parasram Topandas Kevalani
Occ. Business of repairing
and seeling of watches in
the name of Rama Watch House
near Municipal School No.5
Agra Road, Dhule.
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2] Tharumal Kishanr Duseja
Occ. Business as kirana shop
at Gurunanak area Dhule.
.. petitioners.
Versus
1] Union of India
2] The State of Maharashtra
3] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
4] Secretary to the Government
of Maharashtra, Urban Development
Department, Mantralaya, Bombay.
5]Shri Sitaram Kunte
Collector of Dhule,
Dhule.
6] Shri P.K. Jain
Ex. Incharge District Superintend
of Police & Commandant
Dhule.
7] Shri Ramesh Mewasi,
Chief Officer, Dhule Municipal Council
Dhule.
8] Shri Wani
Town Planner, Dhule Municipal Council
Dhule.
9] Shri Ahirrao
Dhule Municipal Council, Dhule
District Dhule.
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10] Shri Bhagwan Bandu Gite,
Octroi Superintendent and Member
of the Encroachment Removal Committee
Dhule Municipal Council, Dhule.
11] Dhule Municipal council,
Dhule through President
Shri C.P. Galai.
12] The Executive Engineer
Maharashtra State Electricity Board
Dhule.
13] The General Manager,
Dhule Telephone, Dhule
14]The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
Mr. A.B. Girase, Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.2 to 4.
Mr. Parag Barde, Advocate for respondent No.7
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.13
Mr. V.D. Sonawane, Advocate for R. No. 14.
Mr. Mukul Kulkarni, Advocate for respondent NO.7
5] WITH WRIT PETITION NO. 2309 OF 19967
1] Motiram Moradmal Sindhi
Netaji General Stores
2] Krupaldas Lalchand Tulgaji
Rupaldas Lalchand Sweet Mart
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3] Smt. Pushpabai Holaram
Vinod Wine Shopping
4] Suresh Bhagwandas Dandvani
Shivam STD booth
5] Syed Kasam Syed Ahmed
Electric Shop
All carrying on business at
Jail Road, Dhule, Maharashtra
.. Petitioners
igVersus
1] The State of Maharashtra
2] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
3] Secretary to the Government
of Maharashtra, Urban Development
Department,
4]Shri Sitaram Kunte
Collector of Dhule,
Dhule.
5] Shri P.K. Jain
Ex. Incharge District Superintend
of Police & Commandant
Dhule.
6] Shri Ramesh Mewasi,
Chief Officer, Dhule Municipal Council
Dhule.
7] Shri Yashwant Wani
Town Planner, Dhule Municipal Council
Dhule.
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8] Shri K.S. Ahirrao
Incharge, Encroachment Removal,
Dhule Municipal Council, Dhule
District Dhule.
9] Shri Bhagwan Bandu Gite,
Octroi Sperintendent and Member
of the Encroachment Removal Committee
Dhule Municipal Council, Dhule.
10] Shri Paghare,
Executive Engineer (Urban)
Maharashtra State Electricity Board
Dhule.
11] Shri N.R. Menaria
Dhule Telephones, Dhule.
12] Dhule Municipal council,
Dhule through its President
13]The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
Mr. A.B. Girase, Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.1 to 4.
Mr. Parag Barde, Advocate for respondent No.6
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.13
Mr. V.D. Sonawane, Advocate for R. No. 11.
6] with WRIT PETITION NO., 2324 OF 1996
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1] Prakash Parbhudas Makhija
Proprietor, Kailas General Stores
2] Murumal Maguma Asija
Proprietor, Shiv-Shankar
Kirana Storea.
3] Laxmandas Chetandas Sharma
Proprietor, Ketan Photo Studio.
4] Pahelja Parasmal Kevlani
Proprietor, Super Clock
5] Nand Prabhudas Makhija
Proprietor , Amrut Tea
6] Ashok Jagannat Ajalkar
7] Pramash Morumal Asija
Proprietor, Sunil Supari Centre.
8] Naganrag Rupchand Pinto
Proprietor, R.K. Vada Pav Centre.
9] Dattatraya Namdeo Khalge
All shop owners, near Raj Kamal
Talkies, near School No.5, Dhule.
.. Petitioners
Versus
1] The State of Maharashtra
2] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
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3] Secretary to the Government
of Maharashtra, Urban Development
Department,
4]Shri Sitaram Kunte
Collector of Dhule,
Dhule.
5] Shri P.K. Jain
Ex. Incharge District Superintend
of Police & Commandant
Dhule.
6] Shri Ramesh Mewasi,
Chief Officer, Dhule Municipal Council
Dhule.
7] Shri Yashwant Wani
Town Planner, Dhule Municipal Council
Dhule.
8] Shri K.S. Ahirrao
Incharge, Encroachment Removal,
Dhule Municipal Council, Dhule
District Dhule.
9] Shri Bhagwan Bandu Gite,
Octroi Sperintendent and Member
of the Encroachment Removal Committee
Dhule Municipal Council, Dhule.
10] Shri Paghare,
Executive Engineer (Urban)
Maharashtra State Electricity Board
Dhule.
11] Shri N.R. Menaria
Dhule Telephones, Dhule.
12] Dhule Municipal council,
Dhule through its President
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13]The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
Mr. A.B. Girase, Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.1 to 4.
Mr. Parag Barde, Advocate for respondent No.6
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.13
Mr. V.D. Sonawane, Advocate for R. No. 10.
7]
igwith WRIT PETITION NO. 2325 OF 1996
Chhotulal Krishna Chaudhari
Age 40 years, Occupation Business
Proprietor, Shinvangi Hotel
resident of vakharkar Nagar
Dhule.
.. Petitioner
Versus
1] The State of Maharashtra
2] Shri Sharad Upasani
Chief Secretary to the
Government of Maharashtra,
Mantralaya, Bombay - 400 032.
3] Secretary to the Government
of Maharashtra, Urban Development
Department,
4]Shri Sitaram Kunte
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Collector of Dhule,
Dhule.
5] Shri K.P. Jain
Ex. Incharge District Superintend
of Police & Commandant
Dhule.
6] Shri Ramesh Mewasi,
Chief Officer, Dhule Municipal Council
Dhule.
7] Shri Yashwant Wani
Town Planner, Dhule Municipal Council
Dhule.
8] Shri K.S. Ahirrao
Incharge, Encroachment Removal,
Dhule Municipal Council, Dhule
District Dhule.
9] Shri Bhagwan Bandu Gite,
Octroi Sperintendent and Member
of the Encroachment Removal Committee
Dhule Municipal Council, Dhule.
10] Shri Paghare,
Executive Engineer (Urban)
Maharashtra State Electricity Board
Dhule.
11] Shri N.R. Menaria
Manager, Dhule Telephones, Dhule.
12] Dhule Municipal council,
13]The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule
Respondents
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Mr. R.B. Raghuwanshi, Advocate holding for Mr. D.S. Bagul,
Advocate for the petitioner.
Mrs. R.K. Ladda, AGP for the respondent No.1 to 5.
Mr. Parag Barde, Advocate for respondent No.9
Mr. P.M. Shah, Senior Counsel, holding for Mr. S.P. Shah, Advocate
for the respondent No.13
Mr. V.D. Sonawane, Advocate for R. No. 11.
8] with WRIT PETITION NO. 2343 OF 1996
Smt. Dhapibai Rameshwar Agrawal
carrying on business of Country
Liquor Shop at Malegaon Road,
Near Chimanlal Petrol Pump,
Dhule
through power of attorney
holder Shri Sunilkumar Mohanlal
Jaiswal, Age 32 years,
R/o. 45, Gopal Nagar, Dhule
District Dhule Pin. 424 001
.. Petitioner
Versus
1] The State of Maharashtra
2] The Collector of Dhule
3] State Excise and Prohibition
Superintendent, Dhule.
4] Dhule Municipal Council Dhule.
5] The Dhule Municipal Corporation
through its Commissioner
Dhule, Dist. Dhule.
.. Respondents.
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Shri R.B. Raghuwanshi, Advocate for the petitioner
Mr. P.M. Shah, Senior Counsel for respondent Nos.4 and 5
Mrs. R.K. Ladda, AGP for respondent No.1 to 3
CORAM : B.R. GAVAI AND
S.V. GANGAPURWALA, JJ.
DATE : 4th AUGUST, 2010.
ORAL JUDGMENT : [ PER B.R. GAVAI,J.] :
1] Since all these petitions involve common questions of fact and law, they are heard together and disposed of by this common judgment.
2] Writ petition No. 2297/1996 has been filed by the petitioner who claims to be a social worker and activist of Shiv Sena, praying for a writ of Mandamus directing the respondent Nos. 1 and 2 to take action against the respondent Nos. 3 to 7. Writ petition No. 2307/1996 and 2309/1996, have been filed by the petitioners claiming to be in a representative capacity on behalf of other shop owners, since all the shops are situated at Jail Road, Dhule. Rest of the petitions are filed in individual capacity by the occupiers of the shops situated in the same vicinity. These petitioners pray for a declaration that the demolition of their construction by the Municipal Council was not permissible in law and for a direction that the Municipal Council should not demolish the constructions carried out by them.
3] We have heard Shri Raghuwanshi, the learned ::: Downloaded on - 09/06/2013 16:14:33 ::: 16 counsel appearing on behalf of the petitioners in W.P. No. 2297/1996 and Writ Petition No. 2325/1996, Shri Girase, learned counsel appearing on behalf of the petitioners in all other petitions, and Shri P.M. Shah, learned Senior counsel on behalf of the respondent Municipal Corporation.
4] Shri Raghuwanshi, submits that the petitioners were lawfully put in possession of the premises in question way back in the year 1953. He submits that though some of the petitioners were carrying on their business in the other areas of the municipal Council, they were persuaded by the Municipal Council to shift to the jail road. Thereafter, a resolution was passed by the Municipal Council, way back on 24/9/1954, whereby , it was resolved by the Municipal council to allot shops to the petitioners on both the sides of the Murlai Road and to the western side of the technical school.
5] He further submits that not only this, but the petitioners had applied for grant of permission in accordance with the relevant bye laws and the plans for construction were duly sanctioned by the Municipal council. He further submits that thereafter, the petitioners have been regularly paying rent to the Municipal council. It is submitted that though the occupation of the premises in question is from 1953-54, the Municipal Council has charged rent from 1951. Shri Raghuwashi, therefore, submits that the petitioners were lawfully inducted in the sites on jail road and as such, they cannot be termed as trespassers. It is ::: Downloaded on - 09/06/2013 16:14:33 ::: 17 submitted that on the basis of the allotment of the sites by the municipal council, the petitioners have constructed their shops and are carrying on business for a period of more than half a century. It is submitted that the Municipal Council is, therefore, estopped from taking any action against the petitioners. He submits that the so called anti-encroachment drive which was carried out in the year 1995 was totally illegal and nothing else but a colourable exercise of power. He submits that, however, by virtue of the interim order passed by this court, the petitioners have reconstructed their shops and are carrying out their business for a period of last more than 13 years after reconstruction. He, therefore, submits that the law requires that the action taken by the Municipal Council of demolition of the construction is declared ultravires and that the interim relief granted in favour of the petitioners made rule of this court. The learned counsel relies on the judgment of the Apex court in the matter of " Olga Tellis Vs. Municipal Council ad others" reported in AIR 1986 SC
180. . In so far as W.P. No. 2325/1996, Shri Raghuwanshi submits that the petitioner therein was allotted the premises in the year 1958, where he had initially constructed a restaurant. It is submitted that thereafter he had started a permit room in the year 1986. He submits that while granting the permit room, necessary formalities viz. NOC of the Municipal Council, NOC of the Prohibition Department & Police Department was obtained and as such, it does not lie in the month of the ::: Downloaded on - 09/06/2013 16:14:33 ::: 18 municipal Council that the construction of the petitioners is unauthorized.
5] Shri Raghuwanshi, further submits that in so far as W.P. No. 2297/1996 is concerned, since in the report which was directed to be submitted by this court, the respondent officers have been found guilty by the learned District Judge, for indulging into illegal demolition of the premises, this court should take appropriate action against them in accordance with law and compensation be also awarded to them. Shri Raghuwanshi, further submits that in view of the judgment of the Division Bench of this court in the case of " Hari Hotumal Tanwani Vs. Commissioner, Ulhasnagar " reported in 2006(2) Bom.C.R. 487 , in the event it is held that the construction of the petitioners is to be removed, they are entitled to be rehabilitated on some other site.
Shri Raghuwanshi further submits that the orders passed by the Collector dated 23rd August, 1995 and 28th August, 1995, which are purportedly passed under Section 308 of the said Act, are without jurisdiction. He further submits that the orders have been passed by the collector without issuing notice to the President of the Municipal Council, whose order was suspended and as such, the said orders passed by the collector are not sustainable in law.
6] Shri Girase, learned counsel appearing on behalf of the petitioners in rest of the petitions adopts the submissions of Shri Raghuwanshi. He submits that pursuant to the allotment of land and ::: Downloaded on - 09/06/2013 16:14:33 ::: 19 valid constructions, the petitioners are legitimately carrying on their business for a period of more than half a century and as such, the action on the part of the Municipal Council needs to be set aside.
7] Shri Shah, learned senior counsel appearing on behalf of the respondent Municipal Corporation, relying on the judgment of the Apex Court in the matter of " Ramchandra Sunda Vs. Union of India and others" reported in (1999) 9 SCC 105, raised a preliminary objection to the tenability of W.P. No. 2307/1996 and 2309/1996. He submits that since while filing these petitions the procedure as required under Order 1 Rule 8 of CPC is not followed , the petitions are liable to be dismissed on that count.
8] On merits, the learned counsel for the respondent submits that the shops are situated on the premises which are on the road. He submits that in accordance with the provisions of the Maharashtra Municipalities Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as, "the said Act" for the sake of brevity) the "street", vests in the Municipal Council. He submits that it is not only the metal road but also the open area abutting the said roads, which would be covered in the definition of "Street" and as such, the existence of the shops of the persons like the petitioners would not be permissible in law. In this respect, the learned counsel relies on the judgment of the Apex Court in the case of " The Municipal Board, ::: Downloaded on - 09/06/2013 16:14:33 ::: 20 Manglaur Vs. Mahadeoji Maharaj " AIR 1965 SC 1147. The learned counsel further relies on the judgments of the Division Benches of this court in case of "Govind Nagar Shop Keepers Association and another Vs. State of Maharashtra and others" 1998(5) Bom.C.R. 280 and in the case of "Gangadhar Narayan Wat Vs. State of Maharashtra reported in 2006(1) All M.R. 241.
. Shri Shah further submits that most of the persons who were occupying the shops on the jail road had also filed 75 civil suits before the competent civil court. It is submitted that some of the persons who had filed the suits are the petitioners in W.P. No. 2307/1996. The suits were partly decreed thereby directing that persons in occupation should not be evicted without providing them an alternate accommodation. It is, however, submitted that the appeals preferred thereagainst by the Municipal Council have been allowed vide order dated 17th March, 2009. It is, therefore, submitted that since the individual rights of the petitioners have been determined in the competent civil proceedings, the writ petition at the behest of such persons would not be maintainable.
9] It is further submitted that in so far as some of the petitioners in W.P. No. 2309/1996 is concerned, they were plaintiffs in 126 civil suits filed by the persons in occupation of the premises on the said road. It is submitted that all the said suits were dismissed by the learned civil judge ::: Downloaded on - 09/06/2013 16:14:33 ::: 21 and the appeals preferred thereagainst were also dismissed vide order passed by the District Judge on 3rd August, 2004. He further submits that out of 126 persons, only 11 persons have approached by way of filing a Second Appeal and rest of the persons have accepted the orders passed by the learned District Judge. It is therefore submitted that in the present case also since the rights of the petitioners are determined by the civil courts, the claim in the petition would not be tenable.
.
igIn so far as the contention of the petitioners regarding rehabilitation on alternate site is concerned, Shri Shah submits that since the petitioners are rank encroachers, they are not entitled for rehabilitation by the municipal corporation.
10] We will deal with the first submission advanced on behalf of the respondent Corporation in so far as tenability of the petition on the ground of non-compliance of the provisions of Order I Rule 8 is concerned. No doubt, that the learned senior counsel is right in relying on the judgment of the Apex Court in the matter of "Ramchandra Sunda Vs. Union of India" (supra). However, it is to be noted that these petitions are admitted in the year 1996. Not only that, but the interim orders were also passed by this court thereby permitting the petitioners to reconstruct the demolished structures. It is further to be noted that the petitioners are not only claiming their right in the representative capacity but also claiming their right in individual capacity. In that view ::: Downloaded on - 09/06/2013 16:14:33 ::: 22 of the matter, since we are deciding the petitions on merit, we are not inclined to entertain the said objection raised by the learned counsel for the respondent Municipal Corporation, at this stage.
11] The petitions arise out of peculiar facts and circumstances. It appears that in the year 1995, the respondent Municipal council had undertaken a drive for removal of unauthorized construction on Agra Road, Jail Road, S.T. Stand area in the Dhule city. It appears that the Chief Officer of the Municipal Council had requested the Collector, Dhule to provide necessary machinery for removal of encroachment. It appears that accordingly, the Collector, Dhule had provided necessary machinery including police aid, for removal of the unauthorized construction in Dhule. While the demolition drive was in progress and reached the area in question, the then President of the Municipal Council, had issued a direction to the Chief Executive Officer on 22nd August, 1995, thereby granting stay to the further removal of encroachment. It is pertinent to note that in the meantime, certain suits were filed before the civil court, Dhule. In the said civil suits, injunction was granted, thereby preventing the Municipal Council from evicting the plaintiffs without providing them alternate accommodation. It is pertinent to note that the said President of the Municipal Council was also one of the plaintiffs. Immediately on receipt of the said order from the President, the Chief Officer moved the Collector under the provisions of Section 308 of the said Act. An endorsement was made on the said ::: Downloaded on - 09/06/2013 16:14:33 ::: 23 communication dated 22nd August, 1995 of the Chief Officer, by the Collector on 23rd August, 1995 thereby staying the order passed by the President of the Municipal Council and directing the Demolition Drive to proceed further in accordance with law. The Collector, vide the subsequent order dated 28th August, 1995, communicated the order passed by him to the Chief Officer. It appears that pursuant to the orders passed by the collector, the demolition drive proceeded further. As a sequel thereof, the petitioners were required to approach this court challenging the action of demolition. W.P. No. 2297/1996 was filed for action to be taken against the collector, Chief Officer and other officers of the Municipal Council, for having disobeyed the orders passed by the civil court and for having acted in a high handed manner. The other petitions which have been mentioned hereinabove, were filed, challenging the demolition and praying for a direction to permit the petitioners to construct on the said premises. It appears that all these petitions were heard together by the Division Bench of this court and rule came to be issued on 16th October, 1995. An interim order also came to be passed which reads thus :-
"Pending the hearing and final disposal of the petition there shall be an interim order on the following terms :-
i] The petitioners shall be permitted to reconstruct the structures that have been demolished at the respective places where they existed prior to demolition.::: Downloaded on - 09/06/2013 16:14:33 ::: 24
ii] The petitioners shall ensure that while reconstructing the structure they will not encroach upon road at site.
Iii] Upon reconstruction of the structures, the Maharashtra State Electricity Board shall grant reconnection of the electricity to the aforesaid persons. The telephone department shall also grant reconnection of the telephone connection to the igaforesaid persons.
Iv] After reconstruction of the respective premises the aforesaid persons shall be permitted to resume their residence and business as before and the respondents shall not interfere with or obstruct the same.
. It further appears that this court had directed the enquiry to be conducted by the District Judge, Dhule, on the following terms :
"4 The circumstances of the case warrant that the District Judge, Dhule, should hold an enquiry with regard to the following issues/points after hearing the parties and giving them an opportunity to lead evidence in support of their respective contentions:
[i] Whether the construction/superstructure was ::: Downloaded on - 09/06/2013 16:14:33 ::: 25 demolished as alleged by the petitioner/petitioners ?
[ii] Whether the Civil Court/High Court had held that disputed construction/super-structure was not on the road ?
iii] what was the costs of the
constructions/superstructure on the date of
demolition; and the damages suffered as a result igthereto ?
iv] whether the officer/Official of the Municipal Council or Officer/Officers/Official of the State Government acted negligently or illegally or arbitrarily or malafide in the action at (i) The District Judge will submit his report regarding items (i) to (iv) after hearing the parties and giving them opportunity to lead evidence within six months.."
12] it is not in dispute that in furtherance to the interim orders passed by this court, the petitioners have again constructed their shops on the road in question. It is also not in dispute that in pursuance to the directions issued by this court, the learned District Judge, Dhule has conducted an enquiry and submitted his report to this court.::: Downloaded on - 09/06/2013 16:14:33 ::: 26
13] In the above factual background, the following points arise for our consideration in the present matter :-
[1] As to whether the petitioners are entitled for a declaration that they are in lawful occupation of the premises in question and as to whether they are further entitled for a direction that the structures constructed by them should not be demolished.
[2] As to whether, as prayed by the petitioners in W.P. No. 2297/1996, any action is required to be taken against the then Collector, Dhule, the then Chief Officer of the Municipal Council, Dhule and the other officers of the Dhule Municipal Council, who are made respondents in W.P. No. 2297/1996.
[3] As to whether the petitioners are entitled for rehabilitation by granting them some alternate accommodation in the event this court comes to the conclusion that the constructions of the petitioners cannot be regularized.
14] For deciding the first issue, it would be necessary to refer to the definition of "Street" as provided under the said Act,. Sub-section (48) of Section 2 thereof reads thus :-
"Street" means any road, foot way, square, court alley or passage, accessible whether permanently or temporarily to the public, whether a thoroughfare or not, and shall include ::: Downloaded on - 09/06/2013 16:14:33 ::: 27 every vacant space, notwithstanding that it may be private property and property or wholly obstructed by any gate, post, chain, or other barrier, if houses, shops or other buildings about thereon and if it is used by any persons as means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid."
Relevant portion of Section 88 of the said Act reads thus :-
"Section 88 :- (1) Subject to any special reservation made or to any special conditions imposed by the State Government, all property of the nature hereinafter in this section specified ( not being of private ownership) and situate within the limits of the municipal area shall vest in and be under the control of the council, and with all other property which has already vested or may hereafter vest in the Council, shall be held and applied by it for the purpose of this Act, that is to say :-
(a)...(f)...
(g) all public streets , not being open spaces or lands owned by Government and the pavements, stones and other materials thereof, and also all ::: Downloaded on - 09/06/2013 16:14:33 ::: 28 trees, erections, materials, implements and things provided for such streets."
It can thus clearly be seen from the perusal of Section 88 and Section 2(48), that all public streets, except one owned by the Government including the pavements stones and other material thereof, shall vest in the Municipal Council.
15] The Apex Court in the case of " Municipal Board Mangalur" (cited supra) has observed thus :
"9. In the present case it is not disputed that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street". It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts ::: Downloaded on - 09/06/2013 16:14:33 ::: 29 in excess of his rights.
It can thus clearly be seen that the Apex Court in unequivocal terms has held that even the part which is abutting the road though not mettaled would also form part of the street and would vest in the Municipal council.
. The Apex Court, further observed in para.11 as under :-
"In the result, we hold that the plaintiff would be entitled to a decree for permanent injunction restraining the Municipality from putting up the said structures on a part of the said public pathway, and the suit in so far as it asked for a decree for possession would be liable to be dismissed. We allow the appeal in part. As both the parties have succeeded and failed in part, they will bear their respective costs throughout.
Appeal partly allowed."
16] It thus appears to be a settled position of law that the area abutting the metal road would also form part of the street and as such, it would not be even permissible for the Municipal Council, to allot the area of street to any person or make any construction thereon.
In that view of the matter, we find that the so called reliance placed by the petitioners on the resolution passed by the Municipal Council dated 25th November, 1954, would not be of much assistance to their case.
::: Downloaded on - 09/06/2013 16:14:33 ::: 3017] In so far as the claim on the basis of promissory estoppel is concerned, it is a settled law that the doctrine of promissory estoppel would not apply against a statutory provision. Since on the basis of the interpretation of the provisions of the said Act, we have held that street vests in the municipal council and municipal council also does not have any power to permit any construction thereon, the resolution on which reliance is placed, would not come to the rescue of the petitioners.
We, therefore, have no hesitation to hold that neither the Municipal Council had any authority to allot the said premises to the petitioners nor the petitioners were entitled in law for allotment of such premises.
18] The Division Bench of this court, in the case of "Gangadhar Wat Vs. State of Maharashtra " (cited supra) had an occasion to consider the matter wherein the petitioners had approached the court claiming theirin that though the road was sanctioned in the layout, the illegal constructions were made on the road and as such, there was no access for the petitioners to approach their houses. The Division Bench observed thus :-
"Having said so, we now come to the facts of the present case. It must be made clear that any encroachments on public roads and foot paths can not be legalized even if there be a policy of State Government. That policy cannot prevail over the provisions of the relevant Act and Rules, unless there be an Act which overrules the provisions of ::: Downloaded on - 09/06/2013 16:14:33 ::: 31 the Act governing the Nagpur Municipal Corporation. Public roads and foot paths must be kept free from all encroachers. "
19] It could thus clearly be seen that the Division Bench in unequivocal terms, has held that any encroachment on public roads, footpaths can not be regularized even if there is a policy of the State Government. It has also been held that policy cannot prevail over the relevant Act and Rules. It is further held that public roads and footpaths must be kept free from encroachments.
20] Another Division Bench of this court, in the matter of " Govind Nagar Shop Keepers Association " (cited supra) had an occasion to consider the petition filed by the persons, who were similarly situated as that of the petitioners. The petitioners therein claiming to have formed an association of 400 shop keepers in Jaripatka locality at Nagpur had approached the court contending that they were occupiers of the shops which were constructed by them on either side of the Jari Patka Main Bazar Road and they were doing business in the said shops.
The petitioners therein were also persons who had migrated from Western Pakistan like most of the petitioners herein. The petitioners therein were also claiming that they were paying taxes to the Nagpur Municipal Corporation, as has been contended by the petitioners in the present case. It was the contention of the petitioners therein that the Municipal Council has undertaken a drive to remove the encroachments.
::: Downloaded on - 09/06/2013 16:14:33 ::: 32According to the petitioners therein, the Municipal Corporation had no authority in law to remove the encroachments and atleast without making any alternate arrangement.
21] The Division Bench, after considering the submission of the corporation, wherein, it was contended by the corporation that the petitioners had no semblance of right, has observed thus :-
ig"11. There can be no dispute that these petitioners do not have even a semblance of right. True it is that practically most of them were the refugees from Pakistan and were given the plots to construct the houses with the sole idea of rehabilitating them. The Corporation does not want to even touch the houses. However, if the persons like the petitioners become avaricious and start encroaching the road side for their personal goal, there would be hardly any justification in reading any right in them. The road side on which the encroachments are made is a road shown in the development plan to be of 60 feet width. With the encroachments the width of the road has been so much affected that not even the half of the road at some places has remained. Under such circumstances, it cannot be said that there was any justification on the part of the petitioners to encroach. Once this position is obtained, there would hardly be any right in the petitioners to demand an alternative site. The petitioner did not ::: Downloaded on - 09/06/2013 16:14:33 ::: 33 oblige anybody in encroaching upon the road-side.
True it is that they have a right to exist and carry on their trade but not at the cost of public properties and public enjoyment of those properties like the public road. The assertion of the learned Counsel that unless an alternative arrangement was made, the demolitions would not be affected has, therefore, to be rejected forthwith."
. igThe Division Bench also negated the claim of the petitioners therein that they were entitled in law for an alternate accommodation on account of their displacement. The Division Bench, therefore, found that the petitioners therein were not entitled to any alternate accommodation.
22] In view of this settled position of law, since we find that the petitioners are not entitled to occupy the premises which is a part of the road, in our considered view, the petitioners are not entitled for a declaration that their occupation is legal and their construction deserves to be regularized.
23] The respondent Municipal Corporation has placed on record the copy of a plan showing the situation of jail road and encroachment on the same, which is the subject matter of the present petition, as Annexure R-1 to the affidavit in reply to W.P. No. 2297/1996.
Perusal of the said plan would reveal that though the width of the said ::: Downloaded on - 09/06/2013 16:14:33 ::: 34 road is 55 feet, 60 feet, 68 feet at different places, on account of the constructions of the shops of the persons like the petitioners, the width has been reduced to 25 feet, 30 feet, 45 feet and 48 feet at different places. It is to be seen that various important public offices like Mamlatdars office, Education Officer's office, Office of the District Superintendent of Police, so also, the central prison, S.T. Stand, Civil Hospital, private hospitals and schools are situated in the vicinity. It could thus clearly be seen from the said map that on account of the constructions on this road, there would be congestion on the said road causing great inconvenience to the citizen. Apart from that, the unauthorized constructions may affect the security of the District prison.
The patients going to the civil hospital would also be inconvenienced.
The citizens who are required to visit the various public offices situated in the vicinity would also face inconvenience on account of the congestion due to unauthorized construction.
. In that view of the matter we find that principle of Salus Populi Suprema Lex shall apply and larger public interest should always outweigh the personal interest of the persons like the petitioners. In that view of the matter, on this ground also, we find that the petitioners are not entitled to the reliefs claimed in the petition.
24] It is further to be noted that most of the occupants had also filed civil suits claiming their individual entitlement. The learned civil judge, on the basis of the evidence led before it, had partly allowed ::: Downloaded on - 09/06/2013 16:14:33 ::: 35 some of the suits and dismissed the other suits. In so far as the suits which were partly decreed, the municipal council had carried an appeal before the learned District Judge and the learned District Judge had allowed the appeals vide order dated 17th March, 2009 thereby dismissing the suits. Aggrieved thereby, 11 persons have filed a Second Appeal before this court. In so far as the suits which were dismissed, the plaintiffs/petitioners had carried an appeal to the District Judge, and their appeals are also dismissed by the learned District Judge vide order dated 3rd August, 2004.
25] In view of the individual rights of some of the petitioners having been negatived by adjudication in a competent civil proceedings, on the basis of the evidence led before it, we do not find that the petitioners are entitled for a relief which is sought in the petition.
We, therefore, hold that the allotment to the petitioners or their construction on road was not permissible in law and as such, the petitions will have to be dismissed in so far as the said relief is concerned.
26] That takes us to the next question, as to whether any action is required to be taken by this court in its extraordinary jurisdiction against the then collector, the then Chief Officer and rest of the officers named in W.P. No. 2297/1996. In that regard, we will have to first deal with the contention of Mr. Raghuwanshi to the effect that action ::: Downloaded on - 09/06/2013 16:14:33 ::: 36 of the Collector in issuing the orders dated 23rd Augst, 1995 and 28th August, 1995 was not permissible in law. Reference in this respect would be necessary to the provisions of Section 308 of the Maharashtra Municipalities Nagar Panchayats and Industrial Townships Act, which reads thus :-
"308. Powers to suspend execution of orders and resolution of Council on certain grounds :- [1] If, in the opinion of the Collector, the execution of any order or resolution of a Council, or the doing igof anything which is about to be done or is being done by or on behalf of a Council, is causing or is likely to cause injury or annoyance to the public or is against public interest 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.
[2] When the Collector makes any order under his signature, he shall forward to the Council affected thereby a copy of the order, indicating therein the reasons for making it and also submit a report to the Director, alongwith a copy of such order. [3] Within [thirty days] from the receipt of such order of the Collector, the Council shall, if it so desires, forward a statement to the Director indicating therein why the order of the Collector should be rescinded, revised or modified. If no such statement is received by the Director within time, the Director shall presume that the Council has no objection if the order of the Collector is confirmed."
[4] On receipt of such report from the Collector and ::: Downloaded on - 09/06/2013 16:14:33 ::: 37 the Council's statement referred to in sub-section (3), if any, the Director may [within a period of six months, from the receipt of such report or within such period beyond six months as may, on the request of the Director, be extended by the State Government , rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force with or without modifications;
Provided that, the Director shall take into account igthe statement of a Council, if received, before such an order is made by him."
27] Perusal of the said section would reveal that when action is required to be taken by the Collector in an emergent situation, a recourse to the said provision can be taken. As the said provision is required to be exercised in an emergent exigency, it does not contemplate an opportunity of hearing to the President, whose order was suspended. In any case, that is not a final order. The Collector is only empowered to suspend the order or resolution of the council or to prohibit doing a particular thing by the Municipal Council. The collector in law, is required to forward a copy of the order to the Council affected thereby and also to submit a report to the Director of Municipal Administration alongwith copy of the order. The Municipal Council is required to forward a statement to the Director, in any case within a period of 30 days from the receipt of the order of the Collector, stating therein why the order of the Collector should be rescinded, revised of ::: Downloaded on - 09/06/2013 16:14:33 ::: 38 modified. Thus, in the proceedings before the Director the Municipal Council is entitled to show cause as to why the Collector's order should be rescinded, revised and modified. The said section, therefore, provides for a complete safeguard and protects the interest of the council, if any order is passed against it. Though much stress is laid on the orders passed by the Collector on 23rd August, 1995 and 28th August, 1995 terming the same as illegal, in our view, what has been done by the Collector on 23rd August, 1995 is only putting an endorsement on the representations made by the Chief Officer of the Municipal Council, whereby, the Chief Officer had brought to the notice of the Collector the problems that the Municipal council was to face on account of the orders passed by the President of the Municipal Council, dated 22nd August, 1995, thereby seeking stay to the demolition drive. The Collector has put an endorsement thereby suspending the order passed by the President of the Municipal Council and directing continuation of the demolition drive. The endorsement which has been made on 23rd August, 1995 has been only translated in the communication dated 28th August, 1995, addressed to the Chief Officer, by the Collector. We, therefore, reject the contention of the learned counsel for the petitioner that the orders dated 23rd August, 1995 and 28th August, 1995 issued by the Collector are illegal.
. Reliance in this respect could be placed on the judgment of the Full Bench of this Court in the matter of "Sanjay Govind Sapkal Vs. Collector, Dhule" reported in 2004(2) Mh.L.J. 874.
::: Downloaded on - 09/06/2013 16:14:33 ::: 3928] In pursuance to the orders passed by this court, dated 16th October, 1995, the learned District Judge, Dhule has submitted his report dated 13th February, 2004. The learned District Judge has found error with the action of the Collector, on the ground that he has not issued show cause notice or communication to the president of the Dhule Municipal Council before issuing the orders dated 23rd August, 1995 and 28th August, 1995. As held by us hereinabove, since the powers exercised by the collector are to be exercised in an emergent situation, it was not necessary for him to have issued a notice to the President of the Municipal Council. As a matter of fact, the learned District Judge has found fault with the President also. It has been stated in the report that though the President was aware about the orders of injunction passed by the Civil court, he did not take any action initially when the drive commenced and only at the fag end of the drive, an order in question was passed by him. The learned District Judge himself has found that since the orders of the President were passed when the demolition drive came on jail road, after removal of encroachments in the other parts of Dhule city, the person whose constructions were already demolished had become angry and if the structures on the jail road were not removed, a situation of law and order would have arisen. It has been found by the learned District Judge that only on account of such situation, the Chief Officer of the Municipal Council was required to rush to the Collector and obtain the orders which were passed by the Collector ::: Downloaded on - 09/06/2013 16:14:33 ::: 40 suspending the order of the President. The learned District Judge has further found fault with the Collector, for not making enquiries with the Chief Officer, as to how many families were affected and as to whether any order of inunction were passed. The learned District Judge in the report further observes that the officers of the Corporation, namely, Mr. Mewasi, Mr. Wani, Town Planner, Mr. Gite and Mr. Ahirrao had acted negligently, illegally and arbitrarily and to some extent, the then Collector, Mr. Kunte, has also acted illegally, negligently and arbitrarily.
However, it is pertinent to note that the learned District Judge has himself observed that the action of these persons was not malafide. It would be appropriate to refer to some of the observations of the learned District Judge, in this regard, which read thus :-
"But, definitely none of the respondents acted malafidely. Because there is no enmity between these respondents and the petitioners as to take revenge by removing their structures. It is done under the tense atmosphere and with good motive, as per the Govt. Circular to clean the city by removing the encroachments. They are not at all personally interested in their matter. Their motive may be that Dhule city should be clean city. Therefore, they have no grudge, bias against these petitioners. But while doing so, some acts as discussed above not taken into consideration by these officers in its proper perspective. Therefore, the action is found some what negligent, illegal and arbitrary. Hence, I answer this point No.4 accordingly."::: Downloaded on - 09/06/2013 16:14:33 ::: 41
29] It could thus be seen that the learned District Judge himself has found that the action of the officers was with good intention. He has categorically rejected the contention that the officers of the municipal council were acting in a malafide manner. We also find that the officers were discharging their statutory duty of removing the encroachments and clearing the road. The learned District Judge has rightly pointed out that they have no personal interest in the matter and they were acting with good intention. In view of this specific finding, we do not find that any action needs to be taken against the officers of the municipal council, named in W.P. No. 2297/1996, as prayed for by the petitioners.
Therefore, the prayer made in this respect in the said writ petition will also have to be rejected. Since we have held that no action is required to be taken against the respondent officers for removing the unauthorized construction, as a consequence thereof, the claim for damages will also have to be rejected.
30] That leads us to the last question, as to whether the petitioners are entitled for rehabilitation on any alternate site for carrying on their business. Shri P.M. Shah, learned counsel counsel has strenuously opposed such a request. According to him, the petitioners are rank encroachers and therefore, they have no semblance of right for providing an alternate accommodation.
::: Downloaded on - 09/06/2013 16:14:33 ::: 42. The municipal council, vide its resolution dated 25th November, 1954 had found that persons in list Nos. 1 and 2 alongwith the report of the Chief Officer dated 18th November, 1954 had encroached upon the municipal land from 1950-51, by erecting cabins, sheds, etc. It was, therefore, resolved to allot the premises to such of the persons in list Nos. 1 to 3, on certain conditions stipulated in the said resolution, on lease, for a period of 11 months. Vide the said resolution, the Municipal Council had also resolved to charge the rent to those persons from 1950-51. Though we have already held that since the said land forms part of the street, it was not permissible for the Municipal council to allot the same to anyone, however, fact remains that persons in list Nos. 1 to 3 alongwith report of the Chief Officer dated 18 th February, 1954 , were, in fact, allotted the premises on lease basis by the Municipal Council. It is not in dispute that these persons are carrying on the business on the said premises for a period of almost 60 years.
Though the structures were removed in the year 1995, by virtue of the interim orders passed by this court, they have been permitted to reconstruct in the year 1995 and, as a matter fact, they have also reconstructed in the year 1995 and are continuing the business thereafter.
. In so far as the reliance placed by the learned counsel for the petitioner on the judgment of the " Olga Tellies and others Vs. Bombay Municipal Corporation" reported in AIR 1986 SC 180, in support of their contention that unless they are allotted alternate ::: Downloaded on - 09/06/2013 16:14:33 ::: 43 premises their construction cannot be removed, is concerned, we find that the said judgment would not be of much assistance to the case of the petitioners. The Apex Court in the said judgment, in para.57 has observed thus :-
"To. summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground. that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway...."
31] Undoubtedly, the structures constructed by the petitioners are on the land which is reserved for a public road. In that view of the matter, we find that the said judgment would not be applicable to the facts of the present case. However, it is to be noted that the Division Bench of this court in the case of " Govind Nagar Shop Keepers Association Vs. " (cited supra) though held that the petitioners therein had no right of alternate accommodation, it has observed thus :-
"However, we should not be meant to say that nothing should be done for the petitioners. Our opinion is only limited to the issue of the removal of encroachments and/or the provision of alternative sites to the petitioners as of right and as a pre-::: Downloaded on - 09/06/2013 16:14:33 ::: 44
condition to the removal of the encroachments. It must be mentioned in case of the petitioners that after being displaced from their permanent lands in a shocking manner and after being uprooted completely, the petitioners have taken to the honest way of life by engaging themselves in trading in a legal manner and have not taken the life of crime. We fervently express a hope that the Corporation and the concerned authorities do take some positive steps in helping the petitioners by igproviding them alternate sites and/or constructing a shopping complex for them. However, that cannot be read to be and meant to be a precondition or a condition precedent for the removal of the encroachments. Encroachments have seriously jeopardised the city of Nagpur and it is a common experience that a common man has welcomed the removal of the encroachments. We cannot be indifferent to the need of the society of removal of the encroachments.".
32] Most of the petitioners in the present case are also displaced from Western Pakistan. They are earning their livelihood by erecting structures on the premises which are allotted to them by the Municipal council, though illegally. The petitioners in the present case stand on a better pedestal than the petitioners in the case of "Govind Nagar Shop Keepers Association" ( cited supra ). In the said case, the shops were constructed by them unauthorizedly by erecting structures on the roads. In the present case, some of the occupants have in fact ::: Downloaded on - 09/06/2013 16:14:33 ::: 45 been allotted premises by a resolution of the Municipal council.
33] Though the petitioners do not have a right to continue on the unauthorized occupation, since the petitioners are carrying on their business on the premises which were allotted to them by the municipal council, for a period of 60 years, we find that the petitioners are entitled to have the benefit of doctrine of legitimate expectation for considering their claim for allotment of an alternate site, so that they can continue to earn their livelihood.
34] In this regard, we may also refer to the resolution of the present Municipal Corporation ( which is established in place of erstwhile Municipal Council ) passed in its meeting dated 12th October, 2007. In the said resolution, the Municipal Corporation had resolved to allot alternate site to the encroachers who had encroached on the area in front of the bus stand. The Municipal Corporation has resolved, vide the said resolution, to allot the shops to the persons, who were displaced by charging an amount Rs.1,10,000/- towards deposit and Rs.460/- p.m. towards rent. The amount of deposit to be recovered from the occupiers has been worked out after taking into consideration the price of the land as per the ready reckoner and cost of constructions. We find that when the Dhule Municipal Corporation has accommodated similarly circumstanced persons, who had encroached upon the area near the bus stand and alloted them an alternate site in the shopping complex by ::: Downloaded on - 09/06/2013 16:14:33 ::: 46 charging a reasonable deposit and rent, we see no reason as to why the persons who have been inducted in accordance with the resolution of the municipal council way back in the year 1954, should be denied the same benefit.
As already held hereinabove, that though the petitioners are not entitled on the basis of the doctrine of promissory estoppel, however, we find that the petitioners' would be entitled to the benefit of doctrine of legitimate expectation.
The Apex Court, in the matter of "Navjyoti Cooperative Housing Society etc. Vs. Union of India and others" reported in AIR 1993 Supreme Court, 155, has held that the doctrine of legitimate expectation imposes in essence a duty on the public authorities to act fairly by taking into consideration the relevant factors relating to such legitimate expectation.
. The Apex Court, further in the case of " Food Corporation of India Vs. M/s. Kamdhebu Cattle Feed Industries" reported in (1993) 1 SCC 71, has held that in all the State actions, the State and its instrumentalities have to conform to Article 14 of which non-
arbitrariness is a significant facet. The Apex court in the said court has observed thus :-
"In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no ::: Downloaded on - 09/06/2013 16:14:33 ::: 47 unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making igprocess in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review."
When the respondent Municipal Corporation has provided alternate accommodation to the similarly circumstanced persons in the adjacent area , the petitioners are also entitled to the benefit of the doctrine of legitimate expectation and to be given a fair treatment as has been given to the similarly circumstanced persons. As such, in view of the doctrine of legitimate expectation, the petitioners ::: Downloaded on - 09/06/2013 16:14:33 ::: 48 would also be entitled for consideration of their claim for alternate accommodation on the same terms and conditions which have been made applicable to the similarly circumstanced persons.
35] We, therefore, direct the Commissioner of the Municipal Corporation, Dhule to scrutinize the claims of the persons/legal heirs including the petitioners, who were allotted the premises, vide resolution dated 25th November, 1954. It is made clear that the petitioners would make their claim before the Commissioner of the Dhule Municipal Corporation within a period of one month from today.
If such claims are made, the Commissioner would verify the claims of the persons/legal heirs and after verification, he shall allot an alternate accommodation to such of the persons/legal heirs, who are found eligible in accordance with the resolution of the Municipal Council dated 25th November, 1954. It is made clear that the alternate accommodation which will be provided to the eligible persons, would be on the similar terms and conditions on which an alternate accommodation has been granted to the persons who were in unauthorized occupation of the premises opposite the bus stand. It is made clear that the alternate accommodation should be provided to the eligible persons/legal heirs within a period of one year from today.
Save and except the directions given in the last paragraph, the petitions are dismissed. Rule is discharged.
::: Downloaded on - 09/06/2013 16:14:33 ::: 4936] At this stage, Shri Raghuwanshi, learned counsel appearing on behalf of the petitioners requested for stay of the order passed by us for a period of 8 weeks from today. Shri Shah, learned senior counsel vehemently opposed the prayer.
37] As discussed hereinabove, we find that on account of constructions of the shops on the road in question, there is not only heavy congestion on the road, but there is also a possibility of great inconvenience to the citizens since the shops are constructed on the road, adjacent to the central prison, civil hospital, office of the Superintendent of Police, bus stand etc. We find that larger public interest of the citizen should outweigh the personal interest of the petitioners. The unauthorized constructions which were demolished in the year 1995, have been continued only on account of the interim orders passed by this court, in 1995. We find that in view of the larger public interest, the petitioners are not entitled for continuation of the interim relief. The prayer in that regard is therefore rejected.
38] Shri Raghuwanshi, further submits that after the dismissal of the petition, the respondent Corporation would remove the constructions of the petitioners without following the due process of law and therefore seeks a direction to the Corporation to follow due process of law before demolition. We find the apprehension to be baseless. It is a settled position of law that even an encroacher cannot be evicted without following the due process of law. By various judicial ::: Downloaded on - 09/06/2013 16:14:33 ::: 50 pronouncements, as to what is "due process of law" in the particular fact situation, has already been well defined. It is, therefore, needless to observe that the Corporation before taking the action for removal of encroachment would follow the "due process of law", as would be applicable in the facts of the case.
[S.V. GANGAPURWALA,J.] [B.R. GAVAI,J.]
grt/-
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