Supreme Court

Asikali Akbarali Gilani and Ors. v. Nasirhusain Mahebubbhai Chauhan and Ors.

MANU/SC/1285/2016

07.10.2016

Civil

No right ensure in favour of occupants on a public property, when no formal lease deed executed and permission not obtained from State Government

Appellant is aggrieved by direction of High Court to the Collector. 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 illegal encroachment and structure erected by Appellant on a Municipal Land. High Court on the basis of the information furnished, noticed that besides the structure referred to in Writ Petition, there were in all 869 leases given by 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 State Government in terms of Section 65 of Gujarat Municipality Act, 1963 was obtained. High Court directed Collector to exercise power in terms of Section 258 of Act, by taking possession of property after removing illegal occupants of the same and demolition of existing structure. Appeals challenged final order passed by the Division Bench of the High Court of Gujarat.

No formal lease has been executed in favour of Appellant or similarly placed persons for allotting the subject plot of land. Further, no prior permission was obtained from the State Government before allotting any portion of the municipal land or public property, much less on the land earmarked as public street.

No right can ensure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of State Government for such allotment and grant of lease has been obtained by the Municipality. Direction issued by High Court in impugned judgment, does not merit any interference.

Section 258 of Act, provides that, If, in opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend execution or prohibit the doing thereof and where execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct municipality to restore the position in which it was before the commencement of the work.

As per Section 258 of Gujarat Municipalities Act, 1963, Municipality is obliged to restore public property as it had originally existed, if such direction is issued by Collector. Direction given by the High Court to take possession of concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure is not in derogation of said provision; and particularly when Collector is expected to exercise that power by following due process. Indeed, the Collector may have to take action on case to case basis in relation to the stated 869 leases or unauthorized occupation of the concerned public property and structures put up thereon without a sanctioned plan.

Supreme court disposed off the appeals observing that, Collector may examine claim of occupants of concerned unauthorized structure(s) standing on subject public property on case to case basis and take suitable action as may be permissible in law.

Relevant

Section 258 of Gujarat Municipality Act, 1963

Tags : Illegal Encroachment Removal Direction

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