1994 Supreme(MP) 582

T.S. Doabia, J.
Madhusudan Khandelwal v. Municipal Council, Shivpuri
W.P. No. 909 of 1988 (G); Decided on 25.7.1994.

Headnote:(1) Landlord and Tenant -- relationship -- mere issuance of receipt on payment of rent -- does not establish relationship.

        (2) Municipalities Act, 1961 (M.P.) -- S. 3 (28) and 3 (36) -- open place -- amounts to "public street" or street as defined under.

       ¼1½ Hkw&Lokeh rFkk vfHk/kkjh & laca/k & HkkM+s ds lank; ij ek= jlhn dk fn;k tkuk & laca/k LFkkfir ugha gksrkA

        ¼2½ uxjikfydk vf/kfu;e] 1961 ¼e-Á-½ & /kkjk 3 ¼28½ rFkk 3 ¼36½ & [kqyk LFkku & ^^yksd ekxZ** vFkok /kkjk ds v/khu ;FkkifjHkkf"kr ekxZ dh dksfV esa vkrk gSA

        The Municipal Council, Shivpuri issued a notice to the petitioner to remove the construction which was said to be on public street. This notice led the petitioner to come to this Court. According to the petitioner, there exists a temporary construction. It is however stated that the Municipal Council has no jurisdiction to issue the notice. Reliance is being placed on Annexure P/3. This is in the shape of permission granted to him to make use of vacant space. It is indicated in P/3 that this permission is for a period of 30 days and the rent would be Rs. 3.25 p. per day. It is on the basis of this permission, it has been projected that there exists a relationship of landlord and tenant between the petitioner and the Municipal Council.

        The further contention of the learned counsel appearing for the petitioner (in W.P. No. 909 of 1988 only) is that the State administration in pursuance of a scheme wanted to re-habilitate the petitioner. A loan was got sanctioned from a nationalised bank. The Municipal Council is, however, not a party to the scheme referred to above.

        The con tension of the counsel for the petitioner is that as rent is being charged by the Municipal Council, therefore, a relationship of landlord and tenant has come into existence. It has further been contended that the space in question would not fall within the definition of the term street or public street as contemplated by the M.P. Municipalities Act, 1961. It has further been contended that in case the petitioner is dislocated then he is entitled to be accommodated at some other place.

        Held : All these contentions have been considered in detail in Civil Second Appeal No. 191 of 1983 (Jagannath Prasad v. Municipal Council, Morena and another), decided on 4.7.1994. In the above case, it was pointed out that merely because some payment is being received by the Council, then mere issuance of receipt indicating payment of rent would not bring into existence relationship of landlord and tenant. Reliance was placed on a decision given by the Supreme Court in the case of H.S. Raikhey v. New Delhi Municipality, AIR 1962 SC 554.

        The further question whether the vacant space would be covered by the definition of public street was again examined and it was ultimately concluded that such space would also fall within the definition of the term public street. Reliance was placed on several decisions including the decisions given in Manglaur Municipality v. Mahadeoji, AIR 1965 Supreme Court 1147; State of U.P. v. Attah Mohd., AIR 1980 SC 1785 and M/s. Gobind Prasad v. New Delhi Municipality, (1994) 14 Legal Reports & Statutes 296.

        In view of the legal position indicated above, the contention of the petitioner that the Municipal council is not competent to remove the encroachment, cannot be sustained.

        The further argument that the Municipal Council should provide alternative accommodation is again without any merit. In Sodan Singh v. New Delhi Municipality (1980) 8 Legal reports and Statutes ((p.) 82, the rights of street hawkers were recognised but no direction was given to the Municipal Committee to provide alternate accommodation. As a matter of fact, in Pyare Lal v. New Delhi Municipal Committee, AIR 1968 SC 133, it was observed that merely because alternate accommodation is not provided to everyone would not make the action of the Council discriminatory in nature.

        In view of the position of law as noticed above and for reasons given in Jagannath Prashads case (supra), there is no merit in these writ petitions. These are dismissed.

        The Municipal Council, Shivpuri would be at liberty to remove the encroachment in accordance with law. As a matter of fact, what was said in Attorney General v. Corporation of Sunder Land, 1875-76 (2) Ch. D. 634 would apply in this case. The Municipal Council is merely a trustee and cannot permit user of any part of a public street for purposes other than those contemplated by the Act.