Bombay High Court
Govind Nagar Shop Keepers Association ... vs State Of Maharashtra And Others on 20 August, 1997
Equivalent citations: 1998(5)BOMCR280, (1998)4BOMLR788, 1998(2)MHLJ45
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar, B.H. Marlapalle
ORDER V.S. Sirpurkar, J.
1. This writ petition has been filed at the instance of about 400 shopkeepers of Jaripatka locality at Nagpur who claim to have formed an Association. The petitioner No. 2 who is also a member of that Association has Joined in his individual capacity probably because the said Association is not a registered Association. There is a list on record along with the reply of the Corporation filed by the respondent No. 3 Corporation mentioning the details of 305 members. Perusal of the list suggests that number of members are occupying their shops in the capacity of tenants thereof while in respect of others it is discreatly avoided to be told as to in what capacity the said persons are the occupiers of the shops in question. The detailed reference to this list will be made later on.
2. The precise complaint of the petitioners is that they are the occupiers of the shops which have been constructed by them only on either side of Jaripatka Main Bazar Road as also on some other roads in Jaripatka locality and that they are doing their business in the shops. It is claimed and not seriously disputed that Jaripatka locality was settled for the refugees from West Pakistan, almost all of whom were Sindhis. It is claimed and seen from the list that most of the members of the petitioner No. 1. Association appear to be Sindhis. It is again a common ground that these being the displaced persons from West Pakistan were allotted the plots in Jaripatka area for the purposes of their rehabilitation. It is their further claim that though some area was earmarked for shopping complex in Jaripatka in or about 1984 the said land was allotted to the members of public for residential purposes and the regular allottees erected their respective houses on those plots. It is also an admitted position that these very persons having no other land started using the lands infront of their respective houses and constructed the shops right in front of their respective houses on both the sides of the main Jaripatka road with the result that the road which was originally a very broad road has almost become a lane. The petitioners further claim that they have been paying the taxes to the Nagpur Municipal Corporation but it is discreetly avoided to be stated in the petition as to whether the said taxes are for the houses alone or also for the shops which are standing on the encroached portions. It is the further contention of the petitioners that in the year 1993, the Nagpur Improvement Trust started a drive to demolish the constructions for removing the encroachments made on either side of the Main Road. It is, therefore, that all the occupants of the shop sites held a meeting with one Abdul Qadir the then Chairman of the Standing Committee of the City of Nagpur Municipal Corporation the respondent No. 3 herein. It is then suggested that in that meeting it was decided that the Main Road of Jaripatka should be kept 30 feet wide and the shopkeepers who had encroached should remove their encroachments to see that the Main Road and Jaripatka remains 30 feet wide. It is claimed that a representation dated 21 -6-1993 for this purpose was made to the Commissioner, Nagpur Division, Nagpur who had issued the instructions and on these instructions, the Collector, Nagpur by his letter dated 23-6-1993 had addressed to one Sindhi Social Service Society, Jaripatka calling upon to submit documentary evidence showing the position of the shop-owners for more than 40 years. It is claimed that the documents were submitted accordingly before the Collector with the idea to get the said encroachments regularised or at least to get alternative site. It is claimed that nothing has been done on the basis of those letters or even the subsequent letter dated 23-6-1993. It is further claimed that on 19-6-1996, the Government Agencies, namely, State of Maharashtra, respondent No. 2 Nagpur Improvement Trust and respondent No. 3 Nagpur Municipal Corporation started removing the encroachments and in that process damaged number of shop structures belonging to the members of the petitioner No. 1 Association without giving any notice or without making any alternative arrangement and, therefore, agitation was started and a meeting was held with the Guardian Minister of Nagpur Hon'ble Shri Nitin Gadkari who visited the locality personally and got himself satisfied that the Main Bazar Road which resulted in a dead end on one side did not have a heavy traffic and the requirements of the public could also be met if the width of the road was maintained at 40 feet so that beyond the limits of this breadth the shops could continue. It is asserted that the Honourable Minister called the meeting at Ravt Bhawan, Nagpur on 4-7-1996 wherein all the Government Agencies were also present and it was decided and announced that the width of the main road would be reduced to 40 feet and the development plan would be so amended and this would be treated as a minor change in the development plan.
Again it is discreetly avoided to be told as to what was the width of the road suggested in the development plan and from the arguments at the Bar as also from the other material available it is clear that the said road was meant to be 60 feet wide. It is the further case that in the said meeting dated 4-7-1996 a Committee was constituted under the Chairmanship of one Shri Uttamchand Thawrani to suggest the other developments to the locality as also to solve the other problems of the locality and that the said Committee had suggested that the land lying vacant called 'Dayanand Park' should be developed as the Stadium-cum-Shopping Complex and this should be done apart from regularising the existing shops on the road side. It is claimed that the Collector, Nagpur also welcomed this move and had requested the Nagpur Improvement Trust to look into the matter.
3. The petition then makes a reference to the Public Interest Litigation in shape of Writ Petition No. 1855/96 which was filed by some citizens in Jaripatka wherein the directions were sought to remove the encroachments on the road ot Jaripatka, Nagpur. It is contended that there is a reference in this petition that the Minister had announced to reduce the width of the Main Bazar Road to forty feet. It is claimed that the petitioner association had sought to intervene in this petition but the application for intervention was rejected and a statement on behalf of the respondents came to be recorded that all the encroachments would be removed by 31st May, 1997. It is claimed that after this there was a panic in the members of the Association as to the interpretation of the High Court's judgment in this Writ Petition as to whether the Main Road was to be kept 60 ft. wide or 40 ft. wide. It is claimed that again the Honourable Minister was approached for resolving this controversy and again the Honourable Minister visited the locality on 7-4-1997 with the officers of the Nazul Department, Nagpur Municipal Corporation and Nagpur Improvement Trust to inspect the alternate site and a further meeting was held in Ravi Bhawan, Nagpur on 16-4-1997 wherein even the public representatives like the Members of Legislative Assembly and the other public servants, including the Collector, Nagpur; Chairman, Nagpur Improvement Trust; Superintending Engineer, Nagpur Municipal Corporation and other high officials were present. It is claimed that in that meeting it was decided that the Nagpur Improvement Trust would develop the said land at Dayanand Park and would construct a stadium-cwn-shopping complex and the said shops would be allotted to the affected shop-owners of Jaripatka who would be affected by the widening of the roads meaning thereby removing the encroachments. It is also further alleged that it was decided in that meeting that the shop-owners would bear the costs of the shops which would be constructed on the periphery of the ground and it is only after the construction of the shops and the allotment of the same that the task of removal of the existing shop structures would be taken up. To support their contention, the petitioners have filed a copy of the notice of meeting but significantly enough, again the petitioners have not filed any minutes of the meeting signed or counter-signed by the persons attending the same. It is contended further that even the Corporator attended this meeting and addressed a letter on 17-4-1997 to the Commissioner, Nagpur Municipal Corporation. The letter is also produced. It is further asserted that on 22-4-1997 the petitioner Association sent an undertaking in terms of what was decided in the meeting. A Government Resolution is also relied upon, a copy of which has been filed with the petition. An apprehension then was expressed that in spite of all this, the authorities would proceed to honour their undertaking before the Court given in the writ petition referred to earlier and, therefore, it would amount to a total injustice to the petitioners. The petitioners have also alleged violation of fundamental rights guaranteed by Articles 14,19(1){g) and 21 of the Constitution of India. The present petition, therefore, came to be filed on 12-5-1997 wherein a declaration was sought that the proposed action of demolishing the structures and shops without providing alternate accommodation was illegal. An injunction was sought permanently restraining the respondents from demolishing the said shops without providing alternate accommodation. An interim order to this effect in the nature of an injunction was also sought during the pendency of the petition.
4. The petition came up before this Court before the Hon'ble Single Judge during the summer vacation wherein this Court proceeded to pass the following order :-
"Coram : M.B. Ghodeswar, J.
Dated: May 16,1997.
The learned Counsel for the petitioner has stated that the sites allotted for shops to each Member of the Association and the actual sites in their possession will be submitted to Nagpur Improvement Trust and Nagpur Municipal Corporation-respondents Nos. 2 and 3 within a period of 15 days from today. The learned Counsel for respondent No. 3 has stated that on receipt of the details from petitioner Association, the Corporation will make enquiry in this matter as to the encroachment on the public road. The Corporation shall complete the enquiry within 15 days from the receipt of the details. The State Government respondent No. 1 also shall furnish the relevant material and documents to this Court in respect of allotment of shops sites to the members of the petitioner Association. The learned Counsel for the Corporation has submitted that in view of this Court's order dated 16-1-1997, the Corporation has to remove the encroachment on or before 31st May, 1997. In view of the latest development, Corporation is not in a position to remove the encroachment on or before 31st May, 1997.
S.O. After vacation. Meanwhile status quo."
Thus, it would be clear that in compliance with the earlier order passed by this Court, the members were to furnish the details regarding their occupation and the Corporation was to complete the enquiry within 15 days thereafter. It seems that the Corporation had made a statement before the Court that in view of this latest development it was not in a position to remove the encroachments on or before 31-5-1997. At this stage, it would be worthwhile to know what the order of this Court was in the earlier writ petition. The order dated 16-1-1997 in Writ Petition No. 1855 of 1996 is in the following terms :---
"Coram : M.B. Ghodeswar and S. Radhakrishnan, JJ.
Dated: January 16, 1997 Case Note:
Constitution of India 1950 - Article 14, 19(1)(g) 21 - Article 226 - Writ - Bombay Municipal Corporation Act - Section 314 - Govind Nagar Shop Keepers - Encroachment on Public place - Nagpur Improvement trust started drive for removing encroachment - Shop Keepers demanded alternative site - Whether Shop Keepers were entitled for alternative site as a matter of right ?
Held:
Encroachment of public properties have no absolute right of alternative accommodation.
In the celebrated case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. the Apex Court was candid enough to deleave that no person had a right to encroach by erecting a structure or otherwise on footpaths, pavements or others places reserved or earmarked for public purpose like gardens or play-grounds. The Apex Court of course in that case had made a reference to Section 314 of the Bombay Municipal Corporation Act and held that provision not to be unreasonable. Even in the reported decision in Sodan Singh and etc. etc. v. New Delhi Municipal Committee and Anr. etc. AIR 1989 SC 1988, where the question was whether it was a fundamental right of a citizen to occupy a particular place on the pavement where he could squat and engage in trading the business, the Supreme Court therein had very clearly given a negative verdict against such citizens. Carrying the same thread in Ahmedabad Municipal Corporation's case, the Supreme Court went on to hold that though the citizens have a fundamental right to carry on their trade or business of their choice, the said right cannot be extended so as to hold that the petitioners have a right to do so on a particular place. It was held that hawkers cannot be allowed to or be permitted to carry on the trade or business on every road in the city. If the road is not wide enough to conveniently accommodate the traffic on it, no hawking could be permitted at all. In Sodan Singh's case and in the Ahmedabad Municipal Corporation case, the Supreme Court had minimised the hardship to pedestrians. The Apex Court has, therefore, spelt out the extents of the rights to carry on trade and business and pointed out its limitations. So also the Supreme Court has pointed out the extents of right of life guaranteed under Article 21 and had pointed out that the width of Article 21 could not be read so as to provide a latitude for anybody to encroach the public places for the purposes of doing the business.
It cannot be, therefore, said that a common man would suffer if these encroachments are removed by the Corporation particularly when the Corporation is duty bound in law to remove the encroachments. It cannot further be said that the petitioners' right to life would be affected if these encroachments are removed by demolition of the illegal constructions. If the petitioners and most of them had the resources to construct the pucca built shops and carry on the business therein, it cannot be said that their right to life would be seriously jeopardised or even marginally jeopardised.
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 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 petitioners did not 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 the public properties and public enjoyment of those properties like the public roads. The assertion of the learned Counsel that unless an alternative arrangement was made, the demolitions would not be effected has, therefore, to be rejected forthwith.
In the wake of this clearest possible pronouncement of law, it cannot be held that there is an absolute right of alternative accommodation to the encroachers on the removal of their encroachments on the public properties. The command of the Supreme Court does suggest the consideration of facts in each case. We are afraid such relevant facts firstly are not brought on record nor have they been contended before. Excepting the large number of petitioners whose shops were going to be demolished and the so-called assurance given by the Hon'ble Minister for limiting the width of the road to 40ft. or in the alternate to provide the shopping complex for all those whose shops would be affected, there was no other fact which was canvassed in favour of the petitioners. It was haltingly said that the shops are therefor last number of years. We are of the clear opinion that none of these facts can justify the wild encroachments on the road side and thereby jeopardising the general traffic on the road in particular and residents of the locality in general.
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 provisions of alternative sites to the petitioners as of right and as a pre-condition to the removal of the encorachments. 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 case some positive steps in helping the petitioners by providing them alternate sites and/or constructing a shopping complex for them. However, that cannot be read to be and meant to be a pre-condition or a condition precedent for the removal of the encroachments. Encroachments have seriously jeopardised the city of Nagpur and it is common experience that a common man has welcomed the removal of the encorachment. We cannot be indifferent to the need of the society of removal of the encroachments. Result - Petition discussed.
.
JUDGMENT
1. Parties by Counsel. Rule. Heard forthwith.
2. The petitioners are seeking direction to respondents to remove the encroachments on the roads of the Jaripatka locality of Nagpur City. The learned Counsel for petitioners has submitted that today also there are unauthorised encroachments on the roads of Jaripatka locality.
3. Some persons tried to intervene in the matter. However, we are not inclined to allow intervention.
4. The learned Counsel for respondent No. 3 and Assistant Government Pleader for State and Shri Bobde for Nagpur Improvement Trust respondent No. 2 said that the unauthorised encroachments on the public roads of Jaripatka locality will be removed by 31st May, 1997 in accordance with law. In view of this statement, nothing survives in the petition. It is accordingly disposed of. No order as to costs,"
That order clearly reflects that there was an undertaking given to this Court in the clearest possible terms on behalf of the State Government as also on behalf of the Nagpur Improvement Trust that unauthorised encroachments on the public roads of Jaripatka locality would be removed by 31 -5-1997 in accordance with law.
5. While this petition was in progress, an intervention application came to be made on behalf of four residents of Jaripatka locality opposing the petition. It was inter alia contended that these intervenors had the houses on the main road in Jaripatka and that the shops of the members of the petitioner. Association which were illegally constructed were causing traffic hazards and amounted to great hindrance to the vehicular traffic especially in the evening hours. It was contended that even the pedestrians found it very difficult to move around. It was pointed out that the width of the road was drastically reduced because of the said illegal constructions. A further reference was made to the efforts which were made by the respondent No. 3 City of Nagpur Corporation for maintaining 60 feet wide road by removal of the encroachments as also to the publication dated 28-8-1996 which contained a warning to the encroachers to remove the said unauthorised constructions. They have also referred to the notices issued by the respondent No. 3 to the encroachers. Reference to Writ Petition No. 1855/96 was also made and it was pointed out that the undertaking given therein was not honoured. The applicants also contended that even the access to their own houses had become blocked because of the wild encroachments made by the members of the petitioner No. 1 Association. This intervention application came to be granted by this Court on 9-7-1997.
6. In response to the notice before admission issued by this Court dated 13-5-1997, the respondent No. 3 Nagpur Municipal Corporation has come out with the detailed submissions opposing the petition. It has been clearly contended therein that the petitioners had made the encroachments on the Main Bazar Road as also on the by-lanes and the constructions were made on both sides of the road the width of which was meant in the development plan to be 60 ft. It was pointed out that the width was reduced substantially because of the encroachments and, therefore, the encroachments were sought to be cleared and the action for that was initiated by the Corporation in the year 1996. A reference to the earlier writ petition as well as the undertaking given therein was also made. It is pointed out that the reliance by the petitioner on the Government Resolution dated 17-4-1974 was of no consequence as the sites on which the alleged encroachments were made were not available for being regularised. It is suggested that only the encroachers whose encroachments were prior to 1 -5-1964 were entitled to be regularised. Secondly it is contended that the shop sites which could not be granted on permanent basis could not be considered for regularisation. It was, therefore, pointed out that the said Resolution was not applicable to the petitioners as these were not the encroachments on the shop sites but the encroachments on the road, The respondent No. 3 also pointed out that though this Court had ordered on 16-5-1997 that the details regarding the actual possession should be supplied by the petitioners, the only details which were supplied were a list of 305 persons on 30-5-1997 and another list of 12 persons on 24-6-1997 a reference to which has earlier been made by us in this judgment. The submissions further go on to suggest that the details of the encroached area were also not provided and it was also not clarified as to whether these encroachments were prior to 1 -4-1964. It is further suggested in the submissions that in the name of encroachments, Pucca constructions were made by the members of the petitioner Association without having even any semblance of right. It was pointed out that no Pucca construction was done with the prior sanction or permission of the Nagpur Municipal Corporation. It is pointed out that a notice was given by the respondent No. 3 requiring the petitioners to submit the documents, namely, (a) the letter of allotment/lease-deed issued by any Competent Authority/Collector in their favour; (b) sanctioned map of the site; (c) the sanctioned map of the construction made by the occupant on the site and (d) the details of any case pending in any other Court and the shopkeepers were directed to furnish the said details within three days from the date of the notice and a clear-cut idea was given that if they failed to furnish any such information sought, it would be presumed that they had made illegal encroachments on the road and a consequent report would be submitted to the Honourable Court. A copy of this notice has been filed along with the submissions. It is further suggested that though the notices were served on 8-7-1997, 9-7-1997, 10-7-1997 and 11-7-1997, no member of the petitioner Association has ventured to supply these particulars till date. The Corporation, therefore, prayed that the petition was wholly without any substance and there was absolutely no justification to continue these encroachers even to the chagrin of the local residents.
7. Shri Shangde, the learned Counsel for the petitioners, strenuously submitted that considering the length of the encroachments and further considering the Government policy to regularise the encroachments as also the assurance given by the Honourable Minister Shri Nitin Gadkari, the petitioners' encroachments were liable to be regularised. His further submission is that even if those encroachments are to be removed treating the encroachments to be hazardous to the traffic, the respondents were duty bound to first provide the petitioners with the alternative site as the petitioners mainly depended on the shops for their livelihood. He based his challenge on the fundamental rights of the petitioners under Article 19(1)(g) as also under Article 21 of the Constitution of India. Shri Bhangde has very heavily relied on the reported decision of the Apex Court reported in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan , Shri Bhangde points out from this decision that even the Apex Court has spelt out a duty on the part of the authorities to provide with an alternative accommodation.
8. In reply, the learned Counsel appearing on behalf of the Corporation Shri, C.S. Kaptan pointed out that firstly there was a complete absence of even semblance of right in the petitioners. They were rank trespassers and encroachers. He has pointed out that these encroachments have posed a serious threat to the traffic as the encroachments are mostly on both the sides of the Main Road in Jaripatka as also in the by-lanes thereof. Shri Kaptan points out further that the road which was meant to be 60 feet wide has been so extensively encroached upon by the petitioners that at some points it has barely remained 30 feet wide road. He has also invited the attention of the Court to the fact that this case is unique one as herein there is already a judgment of this Court in field. According to the learned Counsel, the Corporation was duty bound to remove the encroachments before 31-5-1997 as a statement to that effect was already made before this Court in the earlier writ petition. The learned Counsel further points out that the Government Resolution relied upon by the petitioners in this case was wholly inapplicable for the reasons stated in the affidavit on behalf of the Corporation and that the petitioners themselves had failed to comply with their obligations inasmuch as none of the petitioners had approached the Corporation or had bothered to supply the information to the Corporation regarding the source of the encroacher's right and the duration of the encroachment. He points out that this itself spells out a complete absence of bona fide in the petitioners. The learned Counsel submits that it is the duty of the Nagpur Municipal Corporation to remove the encroachers and the Corporation was not duty bound to first provide with the alternative sites. He pointed out that the Corporation had given no such undertaking in the earlier petition.
9. Shri V.C. Daga, the learned Counsel appearing on behalf of the intervenors, has a different tale to tell. He contends that it has become difficult for some of the house owners in Jaripatka to even approach their houses owing to the indiscriminate and wild encroachments by the petitioners. He points out that there is no question of right of life or right to carry on the proffession particularly because the petitioners have only shown their avarice and greed in encroaching upon the road side. He contended that almost all the shops which have been constructed by encroaching are connected with the residential houses of the petitioners. According to the learned Counsel, even if these encroachments are removed, the petitioners who are the owners of the house would still be able to carry on their business from their houses. He points out that the ordinary citizens who are not the shop-owners find it extremely difficult to commute from the Jaripatka Main Road and the accident rates had also gone up because of the usurpation of the road side space by the encroachers. According to the Counsel, the rank trespassers like the petitioners could claim no protection of law and it would amount to a premium being given on their illegal acts of encroaching on the public road.
10. We have deliberately given the resume of the petition as also the replies, as this judgment is going to affect a large number of petitioners almost amounting to 400 shop-owners of Jaripatka. A citizen undoubtedly has a right to carry on a profession. He has also a right to lead a decent life. The Apex Court has time and again zealously guarded these fundamental rights. The Apex Court has titled its scale in favour of a common man who can be classified as belonging to the class of 'have-nots'. Time and again the basic needs of the common man for leading decent life as also for carrying on the profession have been spelt out. The question, however, is whether the concept of the common man includes even those persons who cannot be strictly called the members of the have-nots section of society and those who have avariciously usurped the public properties. The Apex Court time and again dealt with the problems of the have-nots such as the pavement dwellers or even the hawkers and has acknowleged their rights. However, even in the celebrated case of Olga Tellis v. Bombay Municipal Corporation , the Apex Court was candid enough to declare that no person had a right to encroach by erecting a structure or otherwise on footpaths, pavements or other places reserved or earmarked for public purpose like gardens or play-grounds. The Apex Court of course in that case had made a reference to section 314 of the Bombay Municipal Corporation Act and held that provision not to be unreasonable. Even in the reported decision in Sodan Singhv. New Delhi Municipal Committee, A.I.R. 1989 S.C. 1988, where the question was whether it was a fundamental right of a citizen to occupy a particular place on the pavement where he could squat and engage in trading the business, the Supreme Court therein had very clearly given a negative verdict against such citizens. Carrying the same thread in Ahmedabad Municipal Corporation's case the Supreme Court went on to hold that though the citizens have a fundamental right to carry on their trade or business of their choice, the said right cannot be extended so as to hold that the petitioner have a right to do so on a particular place. It was held that hawkers cannot be allowed to or be permitted to carry on the trade or business on every road in the city. If the road is not wide enough to conveniently accommodate the traffic on it, no hawking could be permitted at all. In Sodan Singh's case and in the Ahmedabad Municipal Corporation case, the Supreme Court had minimised the hardship to pedestrians. The Apex Court has, therefore, spelt out the extents of the rights to carry on trade and business and pointed out its limitations. So also the Supreme Court has pointed out the extents of right of life guaranteed under Article 21 and has pointed out that the with of Article 21 could not be read so as to provide a latitude for anybody to encroach the public places for the purposes of doing the business. Considering the case law and further considering the facts as have already been stated in the earlier paragraphs, it cannot be said that firstly the petitioner come from the section of 'have-nots'. On the other hand, the petitioner are the owners of the properties. Most of the petitioners have their houses in Jaripatka and practically all the shops are connected with those houses but on the encroached portion of the road side. The assertion to these effects by the learned Counsel for the Corporation and for the intervenors was not seriously disputed at Bar. It cannot, therefore, be said that we are dealing here with the case of a common man. Photographs have been brought on record of the said shops which only suggest that these are all Pucca built decent shops wherein roaring business takes place. It cannot be, therefore, said that a common man would suffer if these encroachments are removed by the Corporation particularly when the Corporation is duty bound in law to remove the encroachments. It cannot further be said that the petitioners right to life would be affected if these encroachments are removed by demolition of the illegal constructions. If the petitioners and most of them had the resources to construct the Pucca built shops and carry on the business therein, it cannot be said that their right to life would be seriously jeopardised or even marginally jeopardised.
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 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 effected has, therefore, to be rejected forthwith.
12. The petitioner have heavily relied upon the so-called assurances given by the Minister. They say that those assurances are binding on the State of Maharashtra as also the other two Authorities. We will not go into the question as to whether the assurances were actually given and what was the nature of the assurances given for the simple reason that the assurance could not be given so as to jeopardise the rights of the general public. Shri M.G. Bhangde submits that the assurance of limiting the road width to 40 feet was given by the Hon'ble Minister. Of course, the Hon'ble Minister has not been joined as a party in this petition. That apart, once the development plan shows the road to be of 60 feet width, unless the procedural steps were taken under the Maharashtra Regional Town Planning Act, The road could not be straightaway narrowed down from 60 ft. to 40 ft. We, therefore, hold that even if any assurance was given, it would be of no consequence. We hasten to add that the State Government Counsel has not chosen to own this assurance.
13. Shri Bhangde further submitted that unless the alternative sites were given and unless the complex was constructed giving the shops to the encroachers, the encroachments could not be removed and the shops could not be demolished. As we have already pointed out, we do not see any such kind ot right in the petitioners. Shri Bhangde had pointed out that in the Ahmedabad Municipal Corporation's case such step was taken by the Corporation and even the High Court had given the directions to that effect. He has relied upon the following observations in paragraph 30:
"......It would, therefore, be the duty of the Corporation to evolve the schemes.
In the light of the schemes now in operation, we are of the view that opportunity should be given to the 10 named petitioner-encroachers to opt for any one for the three schemes and the named two persons who are carrying on commercial activities should immediately stop the same...."
14. We are afraid that the observations are being read too widely by the learned Counsel. These observations were made in the light of the facts of that particular case. In fact, in paragraph 29, the Apex Court has clarified the law in these terms:---
"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 principal of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate direction or remedy be evolved by the Court suitable to the facts of the case. Normally, the Court may not, as a rule, direct that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case requires examination and suitable direction appropriate to the facts requires modulation...."
In the wake of this clearest possible pronouncement of law it cannot be held that there is an absolute right of alternative accommodation to the encroachers on the removal, of their encroachments on the public properties. The command of the Supreme Court does suggest the consideration of facts in each case. We are afraid such relevant facts firstly are not brought on record nor have they been contended before us. Excepting the large number of petitioners whose shops were going to be demolished and the so-called assurance given by the Hon'ble Minister for limiting the width of the road to 40 ft. or in the alternate to provide the shopping complex for all those whose shops would be affected, there was no other fact which was canvassed in favour of the petitioners. It was haltingly said that the shops are there for last number of years. We are of the clear opinion that none of these facts can justify the wild encroachments on the road side and thereby jeopardising the general traffic on the road in particular and residents of the locality in general. We cannot ignore the fact that the number of residents of the locality have come up firstly by way of a separate petition and secondly by way of the intervention application in this petition praying the removal of these indiscriminate and avaricious encroachments.
15. Shri Bhangde tried to spell out a legal right on the basis of a Government Resolution dated 27-9-1973 whereby a policy is spelt out for providing shop sites to the refugees from West Pakistan like the members of the present petitioner No. 1 Association. He invites out attention to the observations in paragraph 3 of this Resolution and contends that under that Resolution it was Government policy to regularise all the encroachments which are prior to 1-5-1964 and which are on the permanently available shop sites. We are afraid that the petitioners are reading something which is not there in the Resolution and not reading something which is not there in the Resolution and not reading something which is vitally against their interest. In the first place, in paragraph 3 the Resolution refers to the encroachments made on the "permanently available shop sites". The essence of the said paragraph is that if such encroachments were made, they should be treated to be at par with the regular allotments and they should be regularised . What the petitioners are ignoring are the words on which the emphasis is supplied by us. It is not and it cannot be the case of the petitioners that the sites on which they have encroached were permanently available shop sites. On the other hand, it is an admitted position that these were road sides the width of which was meant to be 60 feet. Again in paragraph No. 40, it is observed:
"The shop sites which-cannot be granted on permanent basis should not be considered for permanent grant and their holders should be granted suitable alternative shop sites for permanent grant. New shop sites should be selected in sufficient numbers for such alternative grants and the persons eligible for them should be asked to shift to the new sites as early as possible....."
Now there is no question of a permanent grant to the petitioners because the road side was not available for a permanent grant at all. This is precisely being avoided to be read by the petitioners in the said Government Resolution. That apart, it has not been even factually established that all these shops have been there prior to 1-5-1964. Indeed when such information was invited by the Corporation, none of the petitioners has chosen to supply the details regarding the duration of encroachments. Thus, the Government Resolution dated 27-9-1973 which is very heavily relied upon by the petitioners does not help them at all.
16. 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 precondition 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 providing 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.
17. For the reasons stated above, we are of the opinion that the petitioners have no case. The petition has no merits and must be dismissed with costs. It is accordingly dismissed with costs.
18. At this juncture, Shri Bhangde requested for continuance of status-quo for four weeks. Considering the dire need of removal of encroachments, we cannot accede to the request. The request is rejected.
19. Petition dismissed.