S/ORDERS PASSED BY THE HIGH COURTS IN WRIT PETITIONS FILED AS PIL

Prior History:

From the Judgment and Order dated 11.07.2013 of the High Court of Gujarat at Ahmedabad in Writ Petition (PIL) No. 144 of 2011 with Writ Petition (PIL) 13 of 2013

Disposition:

Disposed off

Citing Reference:

Mentioned

4

Case Note:
Civil - Illegal encroachment - Removal and Demolition - Direction thereof - Section 258 of Gujarat Municipalities Act, 1963 - Respondent No. 1 had filed petition seeking direction to State Authorities to remove illegal encroachment and structure erected by Appellant on Municipal Land and on public road and the surrounding area - High Court noticed that besides structure referred, there were in all 869 leases given by Municipality without authority of law - High Court issued directions to Collector to take possession of property after removing illegal occupants and demolition of existing structure - Hence, present appeal - Whether direction given by High Court to Collector transcended beyond mandate of Section 258 of Act

Facts:

The Respondent No. 1 had filed a petition for issuance of direction against Respondent No. 3 to 5/State Authorities to remove the illegal encroachment and structure erected by the Appellant on a Municipal Land and on the public road and the surrounding area. The High Court noticed that besides the structure referred, there were in all 869 leases given by the Municipality to different persons without authority of law and on which constructions have been put up without any formal lease executed. The Division Bench held that ordinarily public streets must be used by the Municipality as public streets for the public right of way and could not be let out or allowed to be used for any other purpose. The High Court issued directions to the Collector to take possession of the property after removing the illegal occupants of the same and demolition of the existing structure. It was held that the illegal occupants or the lessees cannot have any protection under the law. Hence, the present appeal filed by the Appellant.

Held, while disposing off the appeal:

(i) No formal lease was executed in favour of the 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. The fact that a resolution was passed by the Executive Committee of the Municipality or a letter of allotment was issued by the Municipality, could not legitimize the occupation of a public property in absence of a formal lease deed executed in that behalf and moreso in respect of a land falling within the public street. The direction issued by the High Court did not merit any interference. [7],[8] and[9]

(ii) The Municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector. The direction given by the High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure was not in derogation of the Section 258 of the Gujarat Municipalities Act, 1963 and particularly when the Collector was expected to exercise that power by following due process. [11]

(iii) For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property. If such a policy is already in place then the Collector may proceed in conformity with the existing policy. [12] and[13]

(iv) The State Government would be free to consider the request of the occupants of unauthorized structures on the subject public property including to ratify the resolution passed in their favour by the Executive Committee of the Respondent-Municipality, provided it is in conformity with the expounded policy. [15]

