Madras High Court
Tmt.Manonmani vs The District Collector on 10 August, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.08.2017 CORAM: THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.19094 of 2004 and W.P.M.P.Nos.22985 and 22986 of 2004 1. Tmt.Manonmani 2. C.Sakthivel .. Petitioners Vs. 1. The District Collector, Vellore District, Vellore. 2. The Tahsildar, Vellore. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus to direct the respondents to pay damages to the petitioners to the tune of Rs.5 lakhs in respect of the demolition of the building in S.No.20/3, measuring an extent of 6 cents at Pennathur Village, Vellore Taluk and District, and consequently to forbear the respondents from interfering with the petitioners' possession and enjoyment of the above said land measuring an extent of 6 cents. For Petitioners : Mr.S.Kamadevan For Respondents : Mr.Akhil Akbar Ali, Govt. Advocate ORDER
The petitioner has come forward with the above Writ Petition praying for issuance of a Writ of Mandamus to direct the respondents to pay damages to the petitioners to the tune of Rs.5 lakhs in respect of the demolition of the building in S.No.20/3, measuring an extent of 6 cents at Pennathur Village, Vellore Taluk and District, and consequently to forbear the respondents from interfering with the petitioners' possession and enjoyment of the above said land.
2. The first petitioner is the mother of the second petitioner. The husband of the first petitioner, who is also the father of the second petitioner, is the owner of the land and he had put up thatched house for his residence in S.No.20/3 in 1966 and the said land in S.No.20/3 was classified as Paatttai Poramboke. After the demise of the first petitioner's husband, the first petitioner and her children are enjoying the property and that they have been paying the property tax and the penal charges levied by the Revenue authorities in respect of the land under occupation. According to the petitioners, there was a Resolution in 1966 passed by the Pennathur Panchayat Union, which was forwarded to the Revenue Authorities, indicating that the occupation of the land by the petitioners is unobjectionable and they can be allowed to continue in the land by issuing patta. Similarly, electricity supply was recommended through TNEB, the electricity supply was also provided as the Panchayat Union did not object for the same. It is further submitted by the petitioner that in the year 1988, the petitioners applied for planning permission to the Pennathur Town Panchayat to put up pucca construction on the land, which was also approved, after which, the petitioners constructed building. The building was also assessed to property tax, which has since been regularly paid by the petitioners to the Pennathur Town Panchayat. As per the instructions of the said Panchayat in 2003, the rain water harvesting (RWH) was also made by the petitioners. It is the further case of the petitioners that they are eking out their livelihood by running a tea stall in the land, even prior to the construction in the year 1988. Thus the petitioners are in possession of the property for the past several years. It is the grievance of the petitioners that the second respondent, on 29.06.2004, without issuing any notice, has brought some officials with the help of Bull Dozers and started demolishing the building that had been in existence for several years. All household articles were inside the house at the time of demolition and the second respondent pulled down the building and the petitioners were prevented even from removing their articles that are inside the building.
3. It is the contention of the petitioners that by no stretch of imagination, the possession of the petitioners can be termed as unauthorised and unlawful, and even assuming that they are in occupation of the Government land, they can only be evicted by following due procedures as contemplated under the provisions of the Tamil Nadu Land Encroachment Act. It is further submitted that as the building had been demolished and the property having been destroyed, the petitioners have come forward with the prayer that the respondents will have to pay the damages of Rs.5 lakhs for their household articles. It is their further contention that they were in possession of the land totally measuring 6 cents in Survey No.20/3 at Pennathur Village for more than 38 years. Even the Revenue Authorities collected B-Memo charges. Hence, the petitioners have filed the above Writ Petition for the relief stated supra.
4. The respondents have filed counter affidavit denying the averments of the petitioner, by contending that the land in S.No.235 (Old S.No.20/3) measuring an extent of 0.36.0 hectares in Pennathur Village is classified as "road poramboke" in the Village Accounts. The land in S.No.227/3 measuring an extent of 0.92.0 hectares is classified as 'TB Sanitorium Poramboke' in the Village Accounts. The Government Tuberculosis Sanitorium Aduckkamparai was in existence abutting the above road poramboke land. It is the further contention of the respondents in the counter that the petitioners have encroached upon 5 cents in S.No.227/3, which is classified as TB Sanitorium poramboke land, by way of dwelling huts and petty shop. They have not constructed huts in road poramboke land in S.No.235, old No.20/3 as contended in the writ petition. According to the respondents, the husband of the first petitioner and the father of the second petitioner, respectively, constructed a thatched house in S.No.227/3 of Pennathur Village for dwelling purpose and the petitioners are having 900 Sq.Ft. of house site land including drinking water Well in S.No.922/20 of Pennathur Village for dwelling purpose and they are also having dry patta lands measuring an extent of 0.39.0 hectares in S.No.157/2A1 of Thuthipattu Village, which is very adjacent to Pennathur Village. It is further averred in the counter that the petitioners have not constructed any house in S.No.235 road poramboke land (Old No.20/3), but they have constructed the houses separately for each other for dwelling purpose and have encroached upon TB Sanitorium Hospital poramboke land, which is urgently required for expansion, development and upgradation of Government Hospital and the newly inaugurated medical college and the encroachments of the petitioners have been considered as highly objectionable and steps have been taken to evict the encroachers.
5. This Court has passed an order on 15.12.2009 directing the Tahsildar to appear before this Court along with the file with regard to eviction of the petitioners and he was also directed to file a plan showing the property comprised in S.Nos.235 and 227/3 of Pennathur Village and the Writ Petition was directed to be listed on 17.12.2009. Thereafter, when the Writ Petition came up before me on 03.08.2017, this Court directed the petitioners and the respondents to comply with the earlier order dated 15.12.2009 and also directed the petitioners to produce the sketch of the property showing the set back and also the approval.
6. Though the petitioners have drawn the attention of this Court to the plan approval and the licence for running the shop and also the payment of charges to the Municipal authorities, but no sketch had been produced by them to show their occupation. The petitioners have admitted that the land in S.No.235 is a road poramboke. The case of the respondents is that the petitioners have constructed a house in S.No.227/3 and no construction in S.No.235 and that the petitioners have tried to encroach upon the road poramboke, which is adjacent to the Hospital area, i.e. Sanitorium TB Hospital set back.
7. With regard to encroachment/unauthorised construction/deviation in plan approval, etc., it is worthwhile to notice the following decisions of Courts including the Apex Court:
(a) 1985 (3) SCC 545 (Olga Tellis Vs. Bombay Municipal Corporation):
"42. Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust. There is no static measure of reasonableness which can be applied to all situations alike. Indeed, the question "is this procedure reasonable?" implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case. In Francis Coralie Mullin, [1981 (2) S.C.R. 516 (at page 524) : 1981 (1) SCC 608 (page 615, para 4) : 1981 SCC (Cri) 212 ] , Bhagwati,J., said :
"... ... it is for the Court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise."
(emphasis supplied, page 524 in SCR).
43. In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavement by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser. The common example which is cited in some of the English cases (see, for example, Hickman Vs. Maisey, [1900] 1 Q.B. 752 : 1900 WN 72 (CA), is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised. As stated in Hickman, it is not easy to draw an exact line between the legitimate user of a highway as a highway and the user which goes beyond the right conferred upon the public by its dedication. But, as in many other cases, it is not difficult to put cases well on one side of the line. Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. Section 61 of the Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under clause (d) of which, it is its duty to take measures for abetment of all nuisances. The existence of dwellings on the pavements is unquestionably a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fall-out of pedestrians in large numbers on highways and streets constitutes a grave traffic hazard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. Under clause (o) of Section 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets and other public places. The counter-affidavit of the Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements, drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. Since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature's call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths.
44. The challenge of the petitioners to the validity of the relevant provisions of the Bombay Municipal Corporation Act is directed principally at the procedure prescribed by Section 314 of that Act, which provides by clause (a) that the Commissioner may, without notice, take steps for the removal of encroachments in or upon any street, channel, drain, etc. By reason of Section 3(w), 'street' includes a causeway, footway or passage. In order to decide whether the procedure prescribed by Section 314 is fair and reasonable, we must first determine the true meaning of that section because, the meaning of the law determines its legality. If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down. Considered in its proper perspective, Section 314 is in the nature of an enabling provision and not of a compulsive character. It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What Section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid.
45. It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ('Hear the other side') could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exemption and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence."
(b) 2005 (2) CTC 741 (Ramaraju, S/o N.A.Subbaraja Vs. The State of Tamil Nadu): (Full Bench of Madras High Court):
"15. An analysis of the aforesaid provisions contained in the Act (The Tamil Nadu District Municipalities Act) makes it clear that the primary duty of the Municipality is to maintain the road and road margins free from encroachment. ....
16. It is thus obvious that no person can claim absolute right, or unfettered right of erecting any structure on the road or on the roadside and the street margins without appropriate permission from the municipal council. It is also obvious that if any such unauthorised construction is made, the council is empowered to remove encroachment. ...
... ...
20. ... ... There cannot be any two opinions regarding the fact that roads are meant for use by public for movement. Unhindered movement of pedestrians as well as free flow of vehicular traffic is the prime object in maintaining a road. ... ...
... ...
38. ... ... ...
(i) If the encroachment is on road or road margins, vested in Municipalities, the removal if any is to be effected only after following the procedure contemplated in Chapter IX of the Tamil Nadu District Municipalities Act and more particularly the provisions contained in Section 182 and Section 183(6). Before taking action under Section 182 of the District Municipalities Act, notice in writing giving atleast two weeks time should be served and, if the person avoids to receive the notice, such notice can be effected by affixure. However, notice by any other means, such as through public announcement or beating of drums or by general notice in newspapers, may not be sufficient.
.. .... ...
(3) Payment of property tax, provisions of water connection or electricity by themselves cannot be construed as conferring any independent right, if the encroachment is otherwise unauthorised.
(4) The above directions and observations are also applicable to encroachment in respect of road or road margins coming within the jurisdiction of Municipal Corporation or Town and Village Panchayats, in which event, necessary action can be taken by the concerned authorities by following the relevant provisions of law applicable to such Corporation or Panchayats.
... ...
(6) If the encroachment is on the land belonging to the Local Authorities, but such land is not part of the road or road margin or roadside land, eviction can be effected by following the procedure contemplated in law, namely, either by taking recourse to the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 or any other law applicable or otherwise by taking recourse to Civil Courts and not by use of unilateral force.
(7) So far as the encroachment on the land belonging to the Government is concerned, action for eviction if any can be taken only by the appropriate authority and by following the procedure contemplated under the Tamil Nadu Land Encroachment Act, 1905.
... ... ... ... "
(c) 1997 (11) SCC 121 = AIR 1997 SC 152 (Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others ):
"8. .. ... Footpath, street or pavement are public property which are intended to serve the convenience of general public. They are not laid for private use indeed, their use for a private purpose frustrates the very object for which they carved out from portions of public roads. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. This facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The claim of the pavement dwellers to construct huts on the pavement or road is a permanent obstruction to free passage of traffic and pedestrians' safety and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and re-passing by the pedestrians. No one has a right to make use of a public property for the private purpose without the requisite authorisation from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or re-passing by the pedestrians.
9. This view was firmly laid down by this Court in Olga Tellis case [1985 (3) SCC 545 (Olga Tellis Vs. Bombay Municipal Corporation)] thus:
" No person has a right to encroach by erecting a structure or otherwise on footpaths and pavements or other place reserved or earmarked for a public purpose like (for e.g. graden or playground) and that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case."
10 .... .. ... The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or foot-paths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. .. .... If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. .. ...
13. .. .. .. no person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. ... ...
... ...
22. Empirical study of urban and rural population in India discloses that due to lack of civic facilities and means of livelihood people from rural areas constantly keep migrating to the urban areas resulting in mushroom growth of slums and encroachment of the pavements/footpaths etc. Every Municipal Corporation has statutory obligation to provide free flow of traffic and pedestrians right to pass and re-pass freely and safely; as its concomitance, the Corporation/Municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachment on the pavements or footpaths which is a constant source of unhygienic ecology, traffic hazards and risk prone to lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon. As held earlier, the Corporation should always be vigilant and should not allow encroachments of the pavements and footpaths. As soon as they notice any encroachments they should forthwith take steps to have them removed and would not allow them to settle down for a long time. .. ....
... ....
29. It is common knowledge that when Government allows largess to the poor, by pressures or surreptitious means or in the language of the appellant-Corporation "the slum lords" exert pressures on the vulnerable sections of the society to vacate their place of occupation and shift for settlement to other vacant lands belonging to the State or Municipalities or private properties by encroachment. .. ....
30. Encroachment of public property undoubtedly obstructs and upsets planned development, ecology and sanitation. Public property needs to be preserved and protected. It is but the duty of the State and local bodies to ensure the same. ..... judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when he approaches the Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief. In that behalf, it is the salutary duty of the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. ... ....
31. It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate to the facts of the case. .. ... " .
(d) AIR 1965 SC 1147 = 1965 (2) SCR 242 (Municipal Board, Mangalur Vs. Sri Mahadeoji Maharaj):
"7. At this stage it is necessary to notice briefly the relevant aspect of the law of highways. In "Pratt and Mackenzies Law of Highways", 20th Edn., at p.4, it is stated:
"Subject to the right of the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it, and as such may maintain trespass against any member of the public who acts in excess of his right."
In Halsbury's Law of England, 3rd Edn., Vol.19, at p.49, rules of presumption and proof of dedication are stated thus "The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a court or jury may infer a dedication by the owner."
8. The law on the subject may be briefly stated thus: Inference of dedication of a highway to the public may be drawn from a long user of the highway by the pubic. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user."
(e) AIR 1999 Allahabad 348 = 1999 SCC online Allahabad 385 (Sanjay Agarwal and another Vs. Nagar Mahapalika, Allahabad):
"10. The issue to be answered is whether public roads can be obstructed by squatters or whether the local administration can permit Tehbazari on public roads or in front of rate payers' properties. The matter before the Court is one of public law.
.... .. ...
21. It is hard to believe that the local administration is unaware who is occupying State land, and is unmindful of encrochments on public roads and a vegetable market which has during day time blocked, obstructed and rendered a public road useless. .. .... It is law that public roads and side walks cannot be blocked or encroached by anyone not even the Government. .. ...
22. The roads and its side-walks, the patri, are laid for passage only and for no other and the Supreme Court said in the matter of Municipal Board, Mangalaur Vs. Mahadeoji Maharaj AIR 1965 SC 1147, even facilities like a piyao (drinking water kiosk), library or a statue of Mahatma Gandhi cannot be put on a roadside patri. This case was followed in State of U.P. Vs. Ata Mohd., (1980) 3 SCC 614 : AIR 1980 SC 1785. The Supreme Court held if the municipality put the street to any other user than that for which it was intended, the State as its owner, was entitled to intervene and maintain an action to get any person in illegal occupation evicted. In the case of Bombay Hawkers' Union Vs. Bombay Municipal Corporation, (1985) 3 SCC 528: AIR 1985 SC 1206 the Supreme Court held that "no one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets property so-called." In the case of Olga Tallis Vs. Bombay Municipal Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180 the Supreme Court held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In this case the Supreme Court also observed that " In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets." The Supreme Court was also dismissing misplaced arguments resting on life and liberty by those who were claiming occupation of public streets. In this regard, the Supreme Court observed that " There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the later." In the case of Delhi Municipal Corporation of Delhi Vs. Gurnam Kaur, (1989) 1 SCC 101 : AIR 1989 SC 38, the Supreme Court reiterated the law that to remove an encroachment of a public road is the obligation of a municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the use of the pedestrians. In the matter of Sodan Singh Vs. New Delhi Municipal Committee, (1989) 4 SCC 155 : AIR 1989 SC 1988 : 1989 All.LJ.1097, the Supreme Court did not permit the plea of life and liberty to be raised, in the context, of carrying on trade or business on a public road. It is in this case that the Supreme Court also held that there can be no fundamental right of a citizen to occupy a particular place where he can squat and engage in trading business. In the case of Ahmedabad Municipal Corporation Vs. D.Balwantsingh, 1992 (2) JT (SC) 363, the Supreme Court negatived the plea of an occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. The Supreme Court reiterated its earlier decisions. Removal of encroachment was upheld; so was the action of the municipal corporation to shift the hawkers to an alternate site. In the case of Gobind Pershad Jagdish Pershad Vs. New Delhi Municipal Committee, (1993) 4 SCC 69: AIR 1993 SC 2313, the Supreme Court extended the public street into the verandas in front of a shop which by long user had been used by the public as a passage. Thus, shopping arcades or verandas adjoining public streets were given the declaration of a public street. Encroachment of such verandas in front of public streets was held as illegal.
23. The law as has been settled by the Supreme Court now provides sufficient guidelines that hawking cannot take place on public roads and streets nor on the side walks. Simply, public streets and sidewalks are to be kept clear for the purposes of passage only and for no other purpose. In so far as hawking on public roads is concerned, Tehbazari as it is known in this State, the Supreme Court has made it absolutely clear that no hawker or squatter has any particular right to any particular spot on a public road. The arguments of life and liberty under Article 21 to occupy a public road has been repelled.
24. But simultaneously, while the Supreme Court declared that the public roads cannot be occupied and had to be left for passage only, it left guidelines that the making of alternate plans, ought not to be misunderstood that encroachments will not be removed. To keep a public road or street and its side-walks clear of encroachments is the statutory obligation of the administration in the performance of public duty. However, learned Chief Standing Counsel, U.P., apparently, has advised the local administration and rightly, and the latter has filed an affidavit that temporarily the shifting shall take place. Whether it happens temporarily or otherwise, is not concern of the Court. The Court mentions that as of now the law is absolutely clear that Tehbazari in modern times cannot be held on public roads."
(f) AIR 2002 Bombay 258 = 2002 (2) Bom.L.R. 564 (Down Mangor Valley Vs. Mormugao Municipal Council):
"10. .. ... ... It has now been judicially recognized that the need to keep set back areas/open spaces is a recognition by the State for maintaining environment and ecology of the area and to ensure for the people of the area a place for recreation, or leisure, whilst at the same time serving as green lungs for the area. If the objective therefore is to provide a better environment for the residents, can that objective be defeated on the specious plea that encroachers on the land are residing there for a long time? Neither the provisions of the Municipalities Act, nor the provisions of the Town and Country Planning Act provide for any regularization of such encroachment on open spaces. Once an open space, it has always to be an open space to be used for the purpose for which it is kept. .. ..
.. ... ...
15. From the above, the following conclusions emerge:
(i) Open spaces maintained as part of a development project or pursuant to a building licence, have to be kept open as per the development permission or building licence as a condition for development or construction in terms of the relevant Act, Rules and Bye-laws or other executive directions;
(ii) These open spaces as referred to in conclusion (i) cannot be altered, converted or changed without hearing the beneficiaries or the parties for whose benefit they were maintained and that too only if there is specific provision under any enactment, Rules, Regulations or other enactment having the force of law, including Bye-laws;
(iii) Those who have put up constructions or changed user on such open spaces as referred to in conclusion (i), can have no equitable consideration in their favour on the ground that the constructions are existing for a long time, whether the constructions are legal or illegal, as the open spaces have been kept for the benefit of the beneficiaries at the time the development permission or building licence was granted, in furtherance of their right to life. This consideration outweighs all other considerations.
(iv) The authorities who grant the development permission/licence and who have been conferred powers by any enactment, including Rules, Regulations, Bye-laws, etc. and who fail to discharge their duties by acting according to law on complaints being made of illegal constructions, or on change of user or the like, have to expeditiously take action in the matter, as otherwise in terms of law declared by the Apex Court, they are liable for action, including disciplinary action;
(v) a copy of this Judgment and order be sent to the Chief Secretary of the State of Goa, for taking further steps in the matter of issuing instructions and/or guidelines to all officers entrusted with these duties, including all local bodies and Planning Authorities, so that they act upon the complaints within a specified time, failing which they ought to be made liable for disciplinary action;
(vi) A copy of the guidelines/instructions so issued by the Chief Secretary to be placed before this Court within six months from today; and
(vii) The Chief Secretary to send copies of this Judgment to all bodies referred to in conclusion (v) and seek their compliance within six months and thereafter to file a status report through any officer designated by him."
8. From the pleadings in the case on hand, it is clear that the fact that the petitioners have not been able to produce the sketch, shows that there is something fishy in the matter. Admittedly, the petitioners are neither the owners of the land in S.No.227/3, nor the land in S.No.235 (Old S.No.20/3). The field map measurement produced by the learned Government Advocate is very clear that the petitioners can never be the owner of any of the lands either in S.No.227/3 or in S.No.235.
9. The petitioners have not produced any document to show that they have title to the property under their occupation. It is not in dispute that S.Nos.235 and 227 belong to the Government and S.No.235 is a road poramboke and that the petitioners have constructed building in S.No.227 and not in S.No.235 and trying to encroach upon the land and the road had been demolished. On technical grounds, the contention that no notice is given and the encroachers (petitioners) have got to be removed by following the due procedures contemplated under the relevant Act, cannot be accepted in this case. When there is rank encroachment on the road, park, water bodies, OSR, etc., substantial compliance itself is sufficient and as per the procedures laid down under law, it is clear that S.Nos.235 and 227 belong to the Government and that the petitioners have no locus-standi to get the property in their favour.
10. The Apex Court, has time and again cautioned that no person has a right to encroach upon public/Government property 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, playground, school, hospital, etc.. The respondents in this case have a discretion under the relevant Act to issue notice or not, before taking steps for removal of encroachments, which the respondents are required to exercise reasonably, taking into consideration the facts and circumstances of the case. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Moreover, in the case on hand, the respondents are bound to demolish the encroached area, given the fact that the area encroached upon is meant for pubic purpose, that too, for hospital, where people will have to be medically treated reasonably for their cause of disease, which makes it clear that no notice be given in the facts and circumstances of this case, more particularly, when the need of the place in question is for sacrosanct purpose of treating the diseased public.
11. In this case, there is no reason to deviate from the canons of law with regard to the demolition if had taken place with respect to the petitioners' property. If the encroachment in this case is not demolished, the respondents are directed to demolish the encroachment in question and take possession of the Government property within a period of one week from the date of receipt of a copy of this order. If no action is taken by the respondents or their authorities to take the possession of the land under encroachment within the above stipulated time, disciplinary action including dismissal from service is to be taken against the staff who is responsible for taking possession and who is not willing to discharge his duties to safeguard the interest of the Government land in question. Further, in this case, the patta, plan approval, etc., said to have been obtained by the petitioners are in collusion with the Revenue officials. If the officials who have sanctioned and approved the plan are still in Government service, departmental action shall be initiated against them for such act. If the concerned official has retired from Government service, the authorities must try to take steps to identify the person concerned who involved in such act and if the person who retired from service is drawing pension, steps should be taken to stop his/her pension, if the relevant Rule so permits, for their illegal action in issuing the patta/plan approval, etc., to the individuals, when the fact remains that the land under encroachment belongs to the Government, that too for public purpose, namely the hospital. After removal of the encroachment of the petitioners in the property in question by the respondents within a period of one week from the date of receipt of a copy of this order, as directed supra, the compliance report shall be submitted to the Registrar General of this Court forthwith, who shall place the same before me within one week from the date of receipt of the said compliance report. The District Collector, Vellore and the Superintendent of Police, Vellore District, shall extend their support to remove the above said encroachment.
12. With the above observations and directions, the Writ Petition is dismissed. No costs. W.P.M.Ps. are closed.
10.08.2017 Index: Yes Internet: Yes cs Registry to issue this order copy to the Superintendent of Police, Vellore District.
Copy to
1. The District Collector, Vellore District, Vellore.
2. The Tahsildar, Vellore.
3. The Superintendent of Police, Vellore District.
S.VAIDYANATHAN, J cs W.P.No.19094 of 2004 10.08.2017