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1996 Supreme(MP) 634
1997 (1) MPLJ 376
T.S. Doabia, J.
Akhilendu Arjaria And Ors.
vs
Banarasidas And Ors.
DECIDED ON : 19 July, 1996
Headnote:
MUNICIPAL CORPORATION - PUBLIC STREET - ENCROACHMENT - LIABILITY OF MUNICIPAL AUTHORITIES - RELATIONSHIP OF LANDLORD AND TENANT - DURATION OF PERMISSION - NULLITY OF PERMISSION - BREACH OF COURT ORDER - NUISANCE - CIVIL AND CRIMINAL LIABILITY - FINANCIAL COMMITMENTS - REMOVAL OF ENCROACHMENTS - TRAFFIC REGULATION - PROJECTIONS ON PUBLIC STREET - GARBAGE HEAPS - VEHICULAR TRAFFIC - AUGMENTATION OF RESOURCES.
Fact of the Case:
The petitioner, Municipal Corporation of Gwalior, filed a petition challenging the order of the trial court, which had initiated contempt proceedings against the officials of the Corporation for allegedly breaching an injunction order passed by the court. The Corporation had taken action to remove an encroachment on a public street, which was occupied by the respondent, Banarasi Das, who claimed to be a lessee under the Corporation. The Corporation argued that the encroachment was unauthorized and that it was within its rights to remove it. The respondent contended that he had been granted permission to occupy the land and that the Corporation's action was in breach of the injunction order.
Finding of the Court:
The court held that the Municipal Corporation is a trustee and has an obligation to protect and improve public property, including streets and public streets. The court further held that the piece of land on which the encroachment was made was part of a public street and that the Corporation was not within its rights to permit any permanent or pakka structure on a street or a public street. The court also held that the mere payment of rent by the respondent did not create a relationship of landlord and tenant between him and the Corporation. The court further held that the Corporation's action in removing the encroachment was not in breach of the injunction order passed by the trial court.
Issues: 1. Whether the municipal authorities owe an obligation to the citizens of this country to see that the public property is not permitted to be encroached upon? 2. Whether the piece of land on which permission was granted by the Corporation is part of public street? 3. To what use public streets can be put? 4. Whether there exists any relationship of landlord and tenant between plaintiff and the Corporation? 5. Whether the permission granted to the plaintiff was for indefinite duration? 6. If the permission was null and void can it be ignored? 7. Whether the action of the Corporation in removing the encroachments was in conformity with the directions contained in the order dated 11th of November, 1992, passed by the trial Court? 8. Whether the respondent is entitled to restoration of possession? 9. Whether any civil or criminal liability is incurred when public streets are encroached up? 10. If public streets are to be properly maintained then what should be the source of financial commitments?
Ratio Decidendi: 1. The Municipal Corporation is a trustee and has an obligation to protect and improve public property, including streets and public streets. 2. The piece of land on which the encroachment was made was part of a public street and the Corporation was not within its rights to permit any permanent or pakka structure on a street or a public street. 3. The mere payment of rent by the respondent did not create a relationship of landlord and tenant between him and the Corporation. 4. The Corporation's action in removing the encroachment was not in breach of the injunction order passed by the trial court.
Final Decision: The petition was allowed and the proceedings initiated under Order 39, Rule 2(A) were automatically lapsed. The court also directed the Corporation to take steps to remove other structures on the circular road, which were also in breach of the provisions of the Corporation Act.
T.S. Doabia, J.
1. "We, the people of India", solemnly resolved to constitute ourselves into a "Sovereign Socialist Secular Democratic Republic." It was resolved to give justice and equality to all. Having been ruled by a foreign power for more than two centuries it was thought apt to include a chapter of Fundamental Rights in the Constitution which we gave to ourselves. Attainment of "Liberty" in all spheres was thought as an imperative goal. The Courts have been enforcing these fundamental rights only. Some how or the other it was felt that we were concerned about our rights only. We absolutely forgot that we owe a duty to this Nation also. It was precisely for this reason in 1976, a chapter dealing with "Fundamental Duties" of the citizen of this country was incorporated in the Constitution. Part IV A was added by 44th Constitutional Amendment Act, 1976. Article 51A which was so added prescribes a duty for every citizen of India "to protect and improve the natural environment including forest, lakes, rivers" and to safeguard "Public Property". It is imperative that the citizens of this country be reminded of their obligations to this Nation.
2. Expansionist instinct is a basic in-built human trait. When this desire was manifested by kings and Emperors this was described as "occupation" and "annexation". When this desire is exhibited by a common man, it is described as encroachment. It is one of these encroachments on public streets which is the subject-matter of this litigation. As a matter of fact this Court took cognizance of this very encroachment earlier also. It was concluded that Banarasi Das-plaintiff who figure as respondent in this petition had no right of statutory flavour in his favour to continue on a piece of land which is part of the public street. Now after a successful effort was made by Municipal Corporation, Gwalior (hereinafter referred to as the Corporation) to remove the encroachment the respondent plaintiff approached the trial Court. An application under Order 39, Rule 2-A of the Code of Civil Procedure, 1908, (hereinafter referred to as the Code) was filed. Contempt proceedings are sought to be initiated against the officials of the Corporation. The plaintiff-respondent insists that there is breach of the order of injunction passed by the trial Court on 11th of November, 1992. Restoration of possession has also been sought. Order by which proceedings have been initiated in this regard by the trial Court are being challenged in the present proceedings. The argument advanced on behalf of the officials of the Corporation is that they took action with a view to remove the encroachment in terms of the order passed by the trial Court itself and in any case it is submitted that the earlier decision given by this Court in civil revision No. 159 of 1994 decided on 24th of May, 1994 i.e., Banarasi Das and Anr. v. Ramkrishan and Ors. (since reported as AIR 1995 M.P. 147) authorised the Corporation to take steps for removing the encroachment. It is, therefore, argued that the Court below has assumed jurisdiction not vested in it. Before noticing the contentions raised by both the sides, it would be apt to recapitulate some basic facts.
3. In the city of Gwalior, there is a place known as Jiwiji Chowk, Maharaj Bada. It is circular in shape. Buildings displaying fine architecture which may also be covered by the term "ancient monuments" exist on this circular chowk. One such fine structure known as "Victoria Market" is being used rather misused as Fruit Market. Several roads from different directions converge on this circular chowk. As a matter of fact, some of the traffic has necessarily to pass through this place. It is because the traffic converging on this circular area moves in one direction only. It is in this circular area there exists a temple dedicated to Lord "Hanumanji". The Corporation for reasons best known to it gave permission to respondent Banarasi Das to temporarily occupy a piece of land adjoin
