Allahabad High Court
Sanjay Mishra vs Nagar Palika, Etawah on 11 February, 1987
Equivalent citations: AIR1987ALL276, AIR 1987 ALLAHABAD 276, 1987 UPLBEC 251, (1987) ALL WC 656, (1987) UPLBEC 251
JUDGMENT Ravi S. Dhavan, J.
1. Encroachment on public places like sidewalks, pavements and public streets at times take novel shapes and styles. Some are upon them, others over them as if in suspended animation. The case before us is one such instance. There is no dispute that the petitioner's little shop is over a public drain and a public street. But, the petitioner contends that it is not upon the public street or the drain and that strictly he has neither encroached a public street or a drain nor violated the law. The shop is partly embedded in a wall adjoining a public street. It does not touch the ground but j uts out over it.
2. The case relates to the town of Etawan. In this town functions a civic body known as the Municipal Board, Etawah, which carries on its functions under the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as the Act). In this town there is a main street. It is known as the Station Road. This road is crossed by another public street called Bazaza road. Towards south of this crossing and on the western side of the Station Road is a small shop from where the petitioner carries on his business of readymade garments and hosiery. The shop juts out partly from a wall of a College-Sana than Dharm Intermediate College. The wall runs parallel to the road. The Municipal Board, in April, 1986, issued a notice to the petitioner under Section 34 objecting to the petitioner's shop over the public drain and on the side walk of the Station Road. The petitioner mentions in his petition that his encroachment over the road was compounded by the Municipal Board when he paid a fine of Rs. 40/- and thus the encroachment must remain. This is one of the issues raised, and will be considered by this Court in the present petition.
3. During the summer vacation of 1986, the petitioner moved the High Court by the present petition under Article 226 of the Constitution of India seeking protection, in effect, that unless the High Court interferes by an ad interim order his shop would be demolished in pursuance of the campaign initiated by the Municipal Board known as "Atikraman Hatao Abhiyan" (Anti Encroachment Drive). The petitioner also mentions in his petition that this encroachment drive has been launched under the Master Plan of the Municipal Board. On an apprehension that the Municipal Board would remove his shop with police aid he came rushing to this Court on the 17th June 1986 and pending admission of the writ petition received an ad interim order to the effect that the petitioner's shop would not be demolished.
4. In the writ petition, the petitioner contends that other in a similar situation on the same street have obtained ad interim injunctions from the Civil Court, in Etawah. He could not move the Civil Court during the last summer recess and chose to file the present writ petition. The petitioner further contends that his shop is embedded in the wall by permission of the College, aforesaid, to whom the wall belongs and that in effect he is a tenant of this College and the Municipal Board cannot remove him. The petitioner has by a supplementary affidavit filed a map giving the exact location of the shop, aforesaid, as also photographs for a better perspective on the location" of the shop. The Municipal Board has on the other hand filed a certified copy of the mapduly authenticated by the Executive Officer, Municipal Board, Etawah. This map gives the exact location of the shop of the petitioner.
5. Between the map produced by the petitioner and the one produced by the Municipal Board, Etawah there is no issue on the location of the shop. The shop is on a side walk on the end of the street known as Station Road and is over a public drain. The petitioner contends that he does not touch the street or the public drain as the shop by virtue of its being embedded in the boundary wall is over the street and the drain. The plea on behalf of the petitioner is, that this is not an encroachment. The petitioner has further contended that the Municipal Board is indiscriminately setting about to remove the petitioner's shop first while the other shops in the vicinity will continue to be there by virtue of the injunctions granted by the Civil Court and further there is no reason why he ought to be the first target of demolition in pursuance of the anti encroachment drive launched by the Municipal Board, Etawah. These then are the issues in the present writ petition.
6. It appears that even the decision of the Supreme Court in two recent cases, AIR 1985 SC 1206, Bombay Hawkers' Union v. Bombay Municipal Corporation; AIR 1986 SC 180, Olga Tellis v. Bombay Municipal Corporation, has not deterred learned counsel for the petitioner from making a vehement plea that the Municipal Board, Etawah, cannot remove the petitioner's shop, which according to him is not an encroachment. We asked learned counsel for the petitioner if he would consider the proposition that if every like thinking person as his client were to encroach or squat on a public street what result it would lead to and would not civic planning, as every civic minded citizen expects from a Municipal Board, be rendered paralysed. The Court did not receive a satisfactory answer.
7. Public streets, cause ways, side walks, footpaths, are also public places within the meaning of Section 2(18) and as otherwise defined in Section 2(19) of the Act aforesaid. These two definitions are reproduced below : --
"2(18) "Public Place" means a space, not being private property, which is open to the use of enjoyment of the public whether such space is vested in the board or not.
2(19) "Public street" means a street--(a) which is declared a public street by the board under the provision of Section 221, or
(b) which with the consent, express or implied, of the owner of the land comprising the street, has been levelled, paved, metalled, channelled, sewered or repaired out of the municipal or other public funds."
8. These definations are to be found in other pari-materia enactments. In its grammatical variations, the meaning and the purpose is the same.
9. The uses of such public places is limited and contained by a civic discipline within the meaning of the Act aforesaid. Such public places and public streets are one such category and includes causeways, sidewalks, footh paths, etc. are laid for public good. They are laid for safety of the pedestrians who tread on them, and the convenience and the orderly movement of vehicular traffic.
10. This is what the Supreme Court laid down, interpreted, on the law which governs the discipline of public places, public streets being one such place. The extracts from the judgment in the Olga Tellis v. Bombay Municipal Corporation, (AIR 1986 SC 180), are reproduced below :
"38. These provisions, which are clear and specific empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavement over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put upon the pavements, the public have a right of passage or access over those pavements.
"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 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..... claim of the pavements 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 pavements 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.....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......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.....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....."
"57. 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.......".
11. These decisions were noticed by this Court, by a Bench in a matter relating to public places; a public street being one such public place. In reference to encroachments on public places this Court observed; "It is at this juncture where the Courts are obliged to call upon local bodies to administer, plan and maintain urban areas in accordance with their statutory obligations. Public parks, open spaces, and public streets are for the thousand and millions in the towns, cities and metropolises. Such areas are not to be occupied by a few, so that they hold the entire city to ransom by denying access to such areas in derogation of the purpose for which they were created." 1986 UPLBEC 781 : U.P. Krishak Samaj, Lucknow v. Administrator, Nagar Mahapalika, Allahabad.
12. The petitioner's little shop is over a public street and also over a public drain. Like a public street a public drain is also meant to be kept free from any obstruction so that it flows to the ultimate point of its discharge without hindrance. Encroachments, consequentially affect public drains too. A Municipal Board is under an obligation of law to keep public streets free from encroachments and public drains free of obstruction. No construction can be made over, nor ought to be made next, to a public drain as it would interfere with its maintenance. Thus, this Court does not see any reason from restraining the Municipal Board, Etawah for removing, the encroachment like the petitioners.
13. We may now deal with another aspect of the petitioner's submission -- The petitioner contends that there is no logic in the Municipal Board removing his shop and further there are others who have obtained injunctions from the Civil Court in Etawah and they may continue. This argument on behalf of the petitioner is misconceived. Once a Municipal Board is satisfied that there is an encroachment upon a public place", its consequential action qua which encroachment it would remove first is a matter with which the Courts ought not to interfere generally. Even according to the petitioner, others who have encroached have not been ignored by the Municipal Board.
14. There can be no acquiescence of a public authority like a Municipal Board to condone an action which is otherwise illegal. This in reference to the contention of the petitioner that the Municipal Board had on one occasion compounded the offence of encroachment by levying a penalty which was paid. Encroachment of a public place, or a construction which is against the discipline of Urban planning can never be the subject matter of condonation by compounding. What is against the law and discipline of urban planning will always be illegal and cannot be compounded. This principle has also been settled by the Supreme Court, AIR 1974 SC 2177 K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi.
15. This Court is satisfied, after a careful consideration of the circumstances, the law and the decisions of the Supreme Court, that a writ, order or direction in the nature of mandamus as sought by the petitioner ought not and cannot be issued.
16. The petition is dismissed with costs. Petition dismissed.