Legal Framework and Judicial Mandates for Removing Unauthorized Encroachments from Public Roads and Highways

The rapid growth of urban centers often leads to a clash between private enterprise and public utility. One of the most persistent issues in urban governance is the proliferation of unauthorized shops, religious shrines, and commercial hoardings on footpaths and streets. When these encroachments obstruct traffic and endanger pedestrians, the judiciary is frequently called upon to intervene. The central legal concern revolves around Court Directions to Remove Illegal Structures on Public Roads, balancing the necessity of urban order against the claims of those occupying the land.

The Legal Status of Public Roads and Land

Public roads, highways, and footpaths are legally designated for the convenience of the general public. The Indian judiciary has consistently maintained that these spaces cannot be converted into private assets. The overarching principle is that public interest must prevail over any private claim of possession.

Courts have been explicit that no individual possesses a legal entitlement to occupy public land. For instance, it has been held that There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon 2016 Supreme(Online)(All) 74. This means that even if a structure has existed for many years, the occupant cannot claim a prescriptive right to remain.

Public utilities must remain open to ensure safety and fluidity of movement. As noted in judicial findings, Public properties such as footpaths, streets, and pavements are intended for the convenience of the general public and cannot be used for private purposes 2021 0 Supreme(HP) 299. This includes the removal of nuisances to ensure that roads are not blocked, whether by illegal constructions or the misuse of space by slum dwellers 1981 0 Supreme(SC) 511.

Treatment of Religious and Unauthorized Structures

A common point of contention is the presence of religious shrines, temples, or dargahs on public roads. While religious sentiments are significant, they do not grant a legal right to occupy public pathways. Courts have mandated that Religious structures cannot legally occupy public pathways, and their removal is mandated under municipal law regardless of religious significance 2026 0 Supreme(Mad) 572.

In some instances, specialized bodies are tasked with managing these removals. For example, the Delhi High Court has highlighted the role of the Religious Affairs Committee in deciding the issue of alleged illegal religious structures and encroachments in accordance with the law 2024 Supreme(Online)(DEL) 14564.

Statutory Powers and Procedural Requirements

The removal of illegal structures is usually carried out by municipal corporations or national highway authorities under specific statutes.

1. Municipal Corporation Powers

Under legislation such as the Mumbai Municipal Corporation Act, 1888 (specifically Section 351), authorities have the power to demolish illegal structures. However, they must generally provide a notice period, typically 15 days. Interestingly, the courts have ruled that if a structure is totally illegal, a procedural flaw in the demolition process may lead to compensation, but it will not lead to the restoration of the building. The courts have observed that illegal structure cannot be permitted to be re-erected 2019 0 Supreme(SC) 1187 because doing so would encourage unplanned and haphazard construction 2019 0 Supreme(SC) 1187.

2. National Highway Protections

Encroachments on national highways are viewed with even greater severity due to the high risk of accidents. Under the National Highways Act, 1956, and the Control of National Highways Act, 2002, any occupation within the Right of Way (ROW) is strictly prohibited. Judicial precedents state that Encroachments within the Right of Way (ROW) of National Highways pose a significant threat to public safety... Any occupation within the ROW is illegal and cannot be regularized 2026 0 Supreme(Raj) 132.

High Court Interventions and Enforcement

Across various states, High Courts have used writ petitions and Public Interest Litigations (PILs) to compel authorities to clear roads:

• Delhi and Uttar Pradesh: In Dehradun, the court issued mandatory orders for the removal of street encroachments, stating that Public streets are for public convenience 2018 0 Supreme(UK) 228. In New Delhi, authorities were directed to remove unauthorized constructions within three weeks following a 2014 Circular 2022 0 Supreme(Del) 197.
• Southern States: The Kerala High Court has viewed the failure to remove illegal hoardings as a dereliction of duty under the Kerala Municipality Act and Highway Protection Act 2021 Supreme(Online)(KER) 14507. Similarly, directions have been issued in Telangana to clear footpaths being used for commercial purposes 2026 Supreme(Online)(Tel) 3904.
• Gujarat: The courts have clarified that mere municipal resolutions cannot legitimize the occupation of a public street without a formal lease, requiring the Collector to demolish such structures after due process 2016 7 Supreme 228.

The Constitutional Link: Article 21 and Article 14

The judiciary has linked the removal of illegal structures to the fundamental Right to Life under Article 21 of the Constitution. This interpretation suggests that The right to life encompasses the State’s obligation to ensure safe movement on public roads; unauthorized constructions within safety zones impair this right 2026 0 Supreme(Raj) 132.

Furthermore, allowing some individuals to encroach while others follow the law violates the principle of equality under Article 14. The courts maintain that there is no estoppel against statutes designed for public safety 2026 0 Supreme(Raj) 132.

Common Defenses and Judicial Rebuttals

Those facing demolition often present several defenses, which courts typically reject:

1. Long Possession: The claim that they have occupied the land for decades is rejected because no prescriptive rights exist on public land 1995 0 Supreme(Del) 410.
2. Right to Livelihood: While the right to trade under Article 19(1)(g) is recognized, it is subject to reasonable restrictions. Courts have held that Public streets are not meant for private business 2026 0 Supreme(Ori) 49.
3. Religious Sentiment: As previously noted, Religious feelings cannot justify illegal encroachment 2026 0 Supreme(Mad) 572.

The prevailing legal standard is that No man can claim equity who comes to court with unclean hands 2025 0 Supreme(Bom) 1565, meaning those who knowingly broke the law to encroach cannot seek equitable relief to stay.

Procedural Safeguards for Fair Demolition

To prevent the arbitrary exercise of power, courts mandate certain safeguards:* Notice: A minimum of 15 days' notice is generally required before demolition 2019 0 Supreme(SC) 1187.* Publicity: Using newspapers to give public notice for voluntary removal.* Verification: The use of GIS technology and geomapping to verify land claims and identify illegalities accurately 2019 0 Supreme(SC) 1187.* Transparency: The Exercise of power of demolition... must be exercised in an absolutely fair and transparent manner 2019 0 Supreme(SC) 1187.

Key Takeaways for Stakeholders

For municipal authorities, the mandate is clear: act promptly on complaints, follow the prescribed notice periods, and use technological evidence like Google Maps for documentation 2021 0 Supreme(Ker) 934.

For citizens, the path to reclaiming public space is often through a PIL or writ petition when authorities fail to act. It is important to understand that encroachments within the ROW of national highways are almost never regularized 2026 0 Supreme(Raj) 132.

In conclusion, the legal consensus is that No man is above the law 1988 0 Supreme(SC) 337. The removal of illegal structures is not merely an administrative task but a constitutional necessity to ensure the safety and rights of the general public. While these rulings are generally applied, the specific outcomes of any case depend on the unique facts involved, and legal experts should be consulted for individual matters.