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1994 Supreme(MP) 511
1995 (0) MPLJ 212
T.S. Doabia, J.
Jagannath Prasad
vs
Municipal Committee And Anr.
Decided On : 4 July, 1994
A Municipal Council has the obligation to keep public streets free from encroachment and can remove encroachments under the relevant provisions of the Act, even if the encroacher claims a landlord-tenant relationship or argues that they cannot be evicted without alternate accommodation.
Headnote:
MUNICIPAL LAW - PUBLIC STREET - ENCROACHMENT - REMOVAL - ALTERNATE ACCOMMODATION - RIGHT TO CARRY ON BUSINESS - CONSTITUTIONAL RIGHTS - MUNICIPAL COUNCIL'S OBLIGATION TO KEEP STREETS FREE FROM ENCROACHMENT - INTERPRETATION OF RELEVANT PROVISIONS OF THE ACT - JUDICIAL PRECEDENTS.
Fact of the Case:
The plaintiff, who ran a pan shop in a wooden cabin on a public street, challenged the Municipal Council's decision to evict him, claiming that he had a landlord-tenant relationship with the Council and that the cabin did not fall within the definition of a public street. The Council maintained that the plaintiff was merely a licensee occupying the space on a daily license fee and that it had the right to remove the encroachment under Section 223 of the Madhya Pradesh Municipalities Act, 1961.
Finding of the Court:
The Court held that the plaintiff did not have a landlord-tenant relationship with the Municipal Council as there was no valid transfer or contract in terms of the Act. The Court further held that the cabin was located on a public street, which the Council was obligated to keep free from encroachment. The Court also rejected the plaintiff's argument that he could not be evicted without being provided alternate accommodation, as this principle did not apply to the facts of the case.
Issues: 1. Whether the plaintiff had a landlord-tenant relationship with the Municipal Council? 2. Whether the cabin was located on a public street? 3. Whether the Municipal Council had the right to remove the encroachment? 4. Whether the plaintiff could be evicted without being provided alternate accommodation?
Ratio Decidendi: 1. The Court held that the plaintiff did not have a landlord-tenant relationship with the Municipal Council because there was no valid transfer or contract in terms of the Madhya Pradesh Municipalities Act, 1961. The Court relied on the Supreme Court's decision in H.S. Raikhey v. New Delhi Municipality, which held that the use of the word 'rent' in receipts issued by the committee did not create a relationship of landlord and tenant. 2. The Court held that the cabin was located on a public street, which the Council was obligated to keep free from encroachment. The Court relied on the definitions of 'public street' and 'street' in Sections 2(28) and 2(36) of the Act, as well as English and Indian case law holding that the right of the public to use land as a highway is not regarded as property or property rights. 3. The Court held that the Municipal Council had the right to remove the encroachment under Section 223 of the Act. The Court relied on the Supreme Court's decision in Manglore Municipality v. Mahadeoji, which held that streets and public streets should be kept free from encroachment. 4. The Court held that the plaintiff could not be evicted without being provided alternate accommodation, as this principle did not apply to the facts of the case. The Court distinguished the Supreme Court's decision in Olga Tellis v. Bombay Municipal Corporation, which dealt with the right of hawkers to carry on street trading without raising a temporary or semi-permanent structure.
Final Decision: The Court dismissed the plaintiff's appeal, holding that the Municipal Council was within its rights to remove the encroachment.
T.S. Doabia, J.
1. This is plaintiff's second appeal. He lost before both the Courts below. His case is that he has been carrying on his business in a wooden cabin. A pan shop is being run by him. He came to the Court with a plea that there is relationship of landlord and tenant between him and Municipal Council. Morena and as such he cannot be evicted from the site in question. The plaintiff placed reliance on receipts which mentions the word 'ground rent'. It was on these premises the contention was raised that there exists a relationship of landlord and tenant and the Municipal Council cannot evict him.
2. The case of the Municipal Council, Morena was that the plaintiff was carrying on his business on a vacant space which falls within the term public street. It was further the case of the Municipal Council that no relationship of landlord and tenant exists; the plaintiff being merely a licensee sitting on the land on daily licence fee. The trial Court came to the conclusion that merely because some amount has been accepted by the Municipal Council towards the use and occupation would not confer on the plaintiff the status of a tenant. It further came to the conclusion that the Municipal Council has a right to get the encroachment removed from the space which is accessible to public by resorting to Section 223 of the M. P. Municipalities Act, 1961 (hereinafter referred to as the Act').
3. The first appellate Court maintained the decree of the trial Court. The plaintiff in this appeal reiterates the arguments which failed to impress the Courts below. It is contended that relationship of landlord and tenant does exist as Municipal Council in the receipts issued in favour of the plaintiff/appellant has indicated the payment as 'rent'. It is further submitted that place where the cabin exists is not covered by the term public street. According to him Section 223 of the Act is not attracted to the facts and circumstances of the case. He has also argued that the construction does not fall within the term building and in any case before evicting the plaintiff alternate accommodation should be provided to the plaintiff.
4. The question as to whether the mention of the word 'rent' in the receipt would bring the relationship of landlord and tenant may be examined. The law is settled that unless and until there is a valid transfer and a contract in terms of the statutory provisions no relationship of landlord and tenant would come into existence. It is further a settled law that streets and public streets are meant to be used by the public at large and the Municipal Council is under an obligation to keep these streets and public streets free from encroachment.
5. The provisions which deal with transfer of property under the Act may be noticed. These are contained in Section 109 of the Act. This section reads as under :-
"Section 109. Other transfers of Municipal Properly.- Subject to such exceptions as the Slate Government may, by general or special order, direct, no Council shall transfer any immovable property except in pursuance of a resolution passed at a meeting by a majority of not less than two thirds of its members and in accordance with rules made under this Act, and no Council shall transfer any property which has been vested in it by the State Government except with the sanction of the State Government :
Provided that nothing in this section shall apply to leases of immovable property for a term not exceeding three years."
6. A reading of the above provision indicates that certain formalities are required to be observed before a contract may be said to have come into existence. The precise question was considered by the Supreme Court in the case of H.S. Raikhey v. New Delhi Municipality, AIR 1962 SC 554. The argument advanced was that the use of the word 'rent' in the receipts issued by the committee would create a relationship of landlord and tenant. Their Lordships of the Supreme Court negatived this argument. Dealing with
