IMPORTANT POINTS
A resolution passed by the Executive Committee of the Municipality or a letter of allotment issued by the Municipality cannot legitimize occupation of a public property in absence of a formal lease deed executed in that behalf.
Municipality obliged to restore public property as originally existed, on a direction issued by Collector who in turn is bound to carry out direction s of the High Court.

JUDGMENT :

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 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, Kalol, AIR 1972 Guj.54 (para 7) Dipak Kumar Mukherjee v. Kolkata Municipal Corporation & Ors., Civil Appeal No.7356/2012 decided on 8th Oct.2012 Sri K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi & Ors., (1974)2 SCC 506 And Friends Colony Development Committee v. State of Orissa & Ors., (2004) 8 SCC 733 held that ordinarily public streets must be used by the Municipality as public streets for the public right of way and cannot 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 persons 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 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