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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.10122-10123 /2016 (arising out of SLP (Civil) Nos.24281-82/2013)

Asikali Akbarali Gilani etc.                                      ….Appellants

Vs.

Nasirhusain Mahebubbhai Chauhan & Ors.         ….Respondents

J U D G M E N T

A.M.KHANWILKAR,J.

Leave granted.

2. These appeals challenge the judgment and final order passed

by the Division Bench of the High Court of Gujarat at Ahmedabad

dated 11th July 2013 in Writ Petition (PIL) No.144 of 2011 and Writ

Petition (PIL) No.13 of 2013.

3. The  respondent  No.1  had  filed  a  Writ  Petition  as  Public

Interest Litigation for issuance of direction against respondent No.3

to  5  (State  Authorities)  to  remove  the  illegal  encroachment  and

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structure  erected  by  the  appellant  on  a  Municipal  Land  behind

Urdu  Kumar  Shala  No.7  and  on  the  public  road  going  from

Bharwadi Road and the surrounding area. The High Court on the

basis  of  the  information  furnished,  noticed  that  besides  the

structure  referred  to  in  the  Writ  Petition,  there  were  in  all  869

leases  given  by  the  Municipality  to  different  persons  without

authority  of  law  and  on  which  constructions  have  been  put  up

without  any  formal  lease  executed  in  favour  of  concerned

persons/occupants nor  the  approval  of  the  State  Government  in

terms of Section 65 of Gujarat Municipality Act, 1963 was obtained.

The Division Bench after analysing Sections 65, 80 and 146 of the

Act and the decisions in Parasram Manjimal & Ors. V. The Kalol

Municipality,  Kalol1,  Dipak  Kumar  Mukherjee  v.  Kolkata

Municipal Corporation & Ors.2 , Sri K.Ramadas Shenoy v. The

Chief  Officers,  Town Municipal  Council,  Udipi  &  Ors.3 And

Friends Colony Development Committee v. State of Orissa &

Ors.4held  that  ordinarily  public  streets  must  be  used  by  the

Municipality as public streets for the public right of way and cannot

1 AIR 1972 Guj.54 (para 7) 2 . Civil Appeal No.7356/2012 decided on 8th Oct.2012 3  (1974)2 SCC 506 4 (2004) 8 SCC 733

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be let out or allowed to be used for any other purpose. It held that

the  Municipality  is  a  trustee  and  must,  therefore,  ensure  that

public streets are not encroached upon.  Further, the Municipality

cannot lease out any portion of the public street. The High Court in

paragraph 9 of the impugned judgment, noted the concession given

by the counsel  for  the Municipality  that  none of  the resolutions

granting  lease  rights  to  private  person(s)  were  approved  by  the

General Board of the Municipality and that the subject structures

were allowed to be constructed in absence of any formal sanction

given by the Competent Authority in that behalf. Paragraph 9 of the

impugned judgment reads thus:

“In the present case, Mr. Sanchela, the learned advocate appearing for the Municipality has conceded that none of the Resolutions was approved by the General Board of the Municipality and not only that, but no plans for the construction have also been sanctioned. It  has been  conceded  by  Mr.  Sanchela,  the  learned  advocate  that innumerable constructions have come up all over the town as a result of  such  grant  of  land  indiscriminately  in  flagrant  violation  of  the provisions of the Act.”

4. The High Court, accordingly, issued directions to the Collector

in the following terms:

“14. In such circumstances, we are left with no other alternative but to direct the Collector to exercise power in terms of Section 258 of the Act, by  taking  possession  of  the  property  after  removing  the  illegal occupants of  the same and demolition of  the existing structure.  We further find that the cases do not come even under sub-section (2) of

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Section 65 of the Act, and thus, the illegal occupants or the lessees cannot have any protection under the law.

15. Let the matter appear after two months, when the Collector will report compliance of this order.”

5. This decision is the subject matter of the present appeals. The

appellant  would  contend  that  the  Writ  Petition  was  filed  out  of

political vendetta. Further, the Municipality had granted plot to the

appellant  pursuant  to  the  resolution  passed  by  the  Executive

Committee of the Municipality on 19th March 1988 allotting 50 x 50

land  on  the  basis  of  rent  at  Rs.50/-  on  specified  terms.  It  is

contended  that  the  direction  given  by  the  High  Court  to  the

Collector transcends beyond the mandate of Section 258 of the Act.

It is also contended that persons affected by the directions given by

the High Court, therefore, have approached the High Court by way

of civil applications.

6. The respondent-Municipality  and the State  Authorities  have

supported the view taken by the High Court. The learned counsel

for the State also pointed out that no previous permission of the

State Government was taken by the Municipality before granting

869 stated leases to concerned persons, which was imperative in

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terms  of  Section  65(2)  of  the  Act.  It  was  contended  that  mere

passing  of  a  resolution  by  the  Executive  Committee  of  the

Municipality is not enough; and in any case no structure can be

permitted on public streets in terms of Section 146 of the Act.

7. We have heard the learned counsel appearing for the parties at

length. It is indisputable that no formal lease has been executed in

favour of the appellant or similarly placed persons for allotting the

subject plot of land. Further, no prior permission was obtained from

the State Government before allotting any portion of the municipal

land or public property, much less on the land earmarked as public

street. The High Court, in paragraph 2 of the impugned judgment,

has  encapsulated  the  substance  of  the  matters  in  issue,  which

reads thus:

“The  sum  and  substance  of  the  allegation  contained  in these applications is that by virtue of the Resolution passed by the Executive  Committee  of  the  Virangam Municipality,  869  different leases have been given to different persons even authorizing them to make construction, but no formal lease-deed has been executed, nor have this decision been approved by the State Government in terms of Section 65 of the Gujarat Municipalities Act, 1963[the Act, hereinafter].”

8. The fact that a resolution has been passed by the Executive

Committee of the Municipality or a letter of allotment is issued by

the  Municipality,  cannot  legitimize  the  occupation  of  a  public

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property in absence of a formal lease deed executed in that behalf

and moreso in respect of a land falling within the public street. It is

indisputable  that  the  respondent-Municipality  has  been  making

such allotments since 1956 without any prior approval of the State

Government. The break-up of such allotments made year wise by

the respondent-Municipality has been given as under:

VIRAMGAM MUNICIPALITY

THE LIST OF THE RESOLUTIONS PASSED BY THE EXECUTIVE COMMITTEE

Year * No.

Year * No. Year * No.

1956 3 1977 15 1988 58 1962 9 1978 42 1989 5 1963 3 1979 22 1990 4 1969 20 1980 32 1991 4 1970 60 1981 1 1992 18 1971 130 1982 8 1993 32 1972 96 1983 3 1996 3 1973 82 1984 24 1998 34 1974 15 1985 15 2000 32 1975 3 1986 30 2007 9 1976 17 1987 40 Total 869

Note:  * The number of tenants that are provided property on rent     by executive committee resolutions.

9. We have no hesitation in accepting the argument of the State

Authorities  that  no  right  can  enure  in  favour  of  the

allottees/occupants of the structure on a public property, in respect

of which no formal lease deed has been executed and that too when

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no prior approval of the State Government for such allotment and

grant of lease has been obtained by the Municipality. Understood

thus, the direction issued by the High Court in paragraphs 14 and

15 of the impugned judgment, does not merit any interference.  

10. The argument of the appellant that the direction given by the

High Court transcends beyond the mandate of Section 258 will be

of  no avail.  Section 258 of  the  Gujarat  Municipalities  Act,  1963

reads thus:

“258(1) If, in the opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of  anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful,  he may by order in writing under  his  signature suspend the execution or  prohibit  the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work”.

11. On a  plain  reading  of  this  provision,  it  is  evident  that  the

Municipality  is  obliged  to  restore  the  public  property  as  it  had

originally existed, if such direction is issued by the Collector. The

direction  given  by  the  High  Court  to  take  possession  of  the

concerned property and remove illegal occupants therefrom and to

demolish the unauthorized structure is not in derogation of the said

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provision;  and  particularly  when  the  Collector  is  expected  to

exercise that power by following due process.

12. Indeed, the Collector may have to take action on case to case

basis  in  relation  to  the  stated  869  leases  or  unauthorized

occupation of the concerned public property and structures put up

thereon without a sanctioned plan. However, considering the fact

that some of the structures may be in existence for quite some time

and  have  been  tolerated  for  all  these  years,  it  may  warrant  a

humane approach to be taken by the State Authorities. For that the

State Government must evolve a comprehensive policy, if  already

not in existence; and thereafter the Collector may proceed to take

action  in  respect  of  such  unauthorized  occupation  and

encroachment on the public property.  

13. If  such a  policy  is  already in place then the  Collector  may

proceed in conformity with the existing policy.  

14. However, if a new policy is required to be formulated, it may

provide  for  rehabilitation  of  the  unauthorized  occupants  to

alternative location, if the unauthorized structure in occupation of a

given person has been tolerated for quite some time or has been

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erected before the cut off date to be specified in that regard. If the

structure  has  been  erected  after  the  cut  off  date,  no  right  of

rehabilitation would enure to the occupant(s) of the unauthorized

structure(s) on the public property; and such structure(s), in any

case will have to be removed in terms of the direction given by the

High Court. The State Government may formulate an appropriate

policy within six months from today, if already not in existence.  

15. The State Government will be free to consider the request of

the  occupants  of  unauthorized  structures  on  the  subject  public

property including to ratify the resolution passed in their favour by

the Executive Committee of the respondent-Municipality, provided

it  is  in  conformity  with  the  expounded policy.  If  that  request  is

accepted, the Government will be free to provide for such terms and

conditions, as may be permissible in law.

16. The Collector may examine the claim of the occupants of the

concerned unauthorized structure(s) standing on the subject public

property on case to case basis and take suitable action as may be

permissible in law.

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17. If  the  occupation  of  the  subject  public  property  is  not  in

conformity  with  the  policy  of  the  State  Government  and  the

structure cannot be tolerated thereunder, the Collector must then

proceed to take action against such structure(s) within two months

in accordance with law, for complying the directions given by the

High Court.

18. We dispose of these appeals in the above terms with no order

as to costs.

……………………………CJI (T.S.THAKUR)

……………………………..J. (A.M.KHANWILKAR)

New Delhi, Dated: 7th October, 2016