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Madhya Pradesh High Court · body

2002 DIGILAW 923 (MP)

SHRIMANT SETH GOPALSAO POORANSAO v. STATE OF M P

2002-10-03

ARUN MISHRA

body2002
Judgment ( 1. ) PETITIONER No. 1 is a religious charitable trust and is duly registered under the provisions of Madhya Pradesh Public Trust Act, 1951. Petitioners trust owns and possesses plot No. 10. The adjoining plot No. 9 is public street used for time immemorial. ( 2. ) PETITIONERS submit that under M. P. Municipalities Act, 1961 (hereinafter referred to as the Act) Section 3 defines the various terms used in the Act. Sub-section (28) of Section 3 of the Act defines the terms public street. Section 100 of the Act relates to property vested in Council-Subsection (1) of Section 100 provides that the properties vested in and be under the control of the Council. Sub-section (2) authorises the State Government to direct by notification that any property which has vested in the Council shall cease to be so vested and thereupon the property notified in the said notification shall cease to be so vested. Sub-section (3) of Section 100 authorises the state Government to resume any immoveable property transferred to the council. Section 102 relates to acquisition of land. Sub-section (1) of Section 102 authorises the State Govt. to acquire such land as requested by the Council under the provisions of Land Acquisition Act. Sub-section (2) of Section 102 lays down that a Council shall not, without the previous sanction of the State government, transfer any land which has been acquired for and vests in the council under sub-section (1) or divert such land to a purpose other than the purpose for which it has been acquired. Section 123 of the Act relates to duties of the Council. Under clause (j) of sub-section (1) of Section 123, maintenance of Public Streets is one of such duties. Section 223 of the Act relates to obstructions and encroachments upon Public Streets and open spaces. Subsection (1) of Section 223 prohibits any person to build or set up encroachments and obstructions on any public streets and is made punishable thereunder. Sub-section (2) authorities the Council to remove such obstruction or encroachment. Sub-section (4) authorises the Municipal Council to allow temporary occupation or erection in a public streets on the occasion of festival and ceremonies for not more than ten days and in such manner as not to cause inconvenience to the public or any individual. ( 3. ) SECTIONS 100,102 and 103 are quoted below :- "100. Sub-section (4) authorises the Municipal Council to allow temporary occupation or erection in a public streets on the occasion of festival and ceremonies for not more than ten days and in such manner as not to cause inconvenience to the public or any individual. ( 3. ) SECTIONS 100,102 and 103 are quoted below :- "100. Property vested in Council.- (1) Subject to any special reservation made or to any special conditions imposed by the state Government, all property of the nature hereinafter in this section specified within the limits of the Municipality shall vest in and be under the control of the Council and with all other property which has already vested, or may hereafter vest in the council, shall be held and supplied by it as trustees for the purposes of this Act, that is to say- (f) all public streets, not being land owned by the State government and the payment, stone and other materials thereof and also trees growing on and erections, materials, implements and things provided for such street; (2) The State Government may, by notification direct that any property which has vested in the Council shall cease to be so vested and thereupon the property specified in the notification shall cease to be so vested, and the State Government may pass such orders as it thinks fit regarding the disposal and management of such property. (3) The State Government may resume any immovable property transferred to the Council by itself or any other local authority, where such property is required for a public purpose, without payment of any compensation other than the amount paid by the council for such transfer and the market value at the date of resumption of any building or works subsequently erected or executed thereon by the Council: provided that before taking any such action, the State Government shall obtain and take into consideration the view or objections of the Council: provided further that compensation need not be paid for build-ings or works constructed or erected in contravention of the terms of the transfer. 102. 102. Acquisition of Land.- (1) When any land, whether within or without the limits of a Municipality, is required for the pur-poses of this Act and the Council is unable to acquire it by agreement the State Government may, at the request of the council proceed to acquire such land under provisions of the land Acquisition Act, 1894 (1 of 1894); and, on the payment by the Council of the compensation awarded under the Act, and of any other charges incurred by the State Government in connection with the acquisition the land shall vest in the Council. Explanation: When any land is required for a new street or for the improvement of an existing street, the Council may proceed to acquire, in addition to the land to be occupied by the street, the land necessary for the sites of the buildings to be erected on the sides to the street and such land shall be deemed to be required for the purposes of this Act. (2) A Council shall not, without the previous sanction of the state Government, transfer any land which has been acquired for and vests in the Council under sub-section (1) or divert such land to a purpose other than the purpose for which it has been acquired. 123. Duties of Council.- (1) In addition to the duties imposed upon it by order under this Act or any other enactment for the time being in force, it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality namely :- (j) Constructing, altering and maintaining public streets, culverts, Municipal boundary markets, huts, slaughterhouses, latrines, privies, urinals, drains, sewers, drainage works, sewerage works, baths, washing places, drinking fountains, tanks, wells, dams and the like; ( 4. ) PETITIONER further submits that under Section 102 (1) as per notification dated 16th February, 1962, the State Government has delegated the power under sub-section (1) of Section 102 to the Commissioner of the division. The adjoining plot No. 9 is the property of the State of Madhya pradesh and it is recorded as public road and vests in Municipal Council, Seoni. The adjoining plot No. 9 is the property of the State of Madhya pradesh and it is recorded as public road and vests in Municipal Council, Seoni. The maintenance khasra is Annexure b. The said road adjoins the National highway 7 to the main road of the city and is being used as public road to pass and repass by the public in general from time immemorial. The width of the road is 72 feet and is very busy road and is used by the residents of all walks of life; to pass and repass and by the children to go to the school as per site map c. Public notice dated 18th May, 1990 was issued by the Collector, Seoni in which it was notified for public that the Nazul Department of the State of M. P. proposes to auction the plots of 10 x 10 out of plot No. 9 and the auction shall be held on 28th May, 1990. Notice was published in samwad Kunj a hindi Daily published from Seoni. A modified notification was issued on 22nd may, 1990 as per e. There is no proposal to construct market complex on the public street. The petitioner submits that action is illegal, void and without jurisdiction as the same is in contravention of the provisions of Sections 3 (28), 100,100 (2), 123 and 223 of the Act. The public street can not be allowed to be used for construction of shopping complex and has to be maintained by the municipal Council. It is not open to the respondents to take the action of construction of shopping complex on a public road. It is further submitted that land vests in the Council and it has not been resumed by the State Govt. As such Collector has no jurisdiction to lease out the portion of the said land. Thus, the Collector has no authority to lease out the portion of the said land. ( 5. ) THIS Court stayed the confirmation of sale and application for intervention has been filed by Shri Madansingh pointing out that action is entirely illegal and auction has been cancelled by the respondent as stay was granted by this Court. Respondent Nos. 1 to 3 have chosen not to file any return. None appeared for respondent No. 3 though served. The State has also not filed the return. ( 6. Respondent Nos. 1 to 3 have chosen not to file any return. None appeared for respondent No. 3 though served. The State has also not filed the return. ( 6. ) SHRI R. P. Jain, learned Counsel for the petitioners, submitted that it is not open to convert the public street into the market complex. The area in question is used for time immemorial as public street as recorded in the maintenance khasra Annexure b of the year 1981-82 which shows that the road for the purpose of maintenance is vested in Municipal Committee, Seoni. Thus, the action of the Collector treating it as open space is bad in law, impermissible and in derogation to the provisions of Sections 100,102,123 and 223 of the Act. He submits that public street in question is the main street and adjoins with the National Highway No. 7. The duty enjoined to prevent encroachment on the road, public street pathway. These are the spaces which vest for the user of general public and Municipal Council is the trustee and is in capacity of fiduciary has to preserve it in accordance with the mandate of the legal provisions of the Act. The action of the Collector is, thus, absolutely without jurisdiction and is bad in law. ( 7. ) M/s Seema Agrawal, learned Counsel for respondent Nos. 1 and 2, submitted that small portion is being taken away from the area recorded as road and it is for the Collector to consider the public interest and obstruction and the decision has been taken considering the rival interests and requirement of a shopping complex. As such no interference is required to be made in the writ petition. The same deserves to be dismissed. ( 8. ) AFTER hearing the learned Counsel for parties and from the documents on record, it has become clear that in maintenance of khasra it is recorded as road and under the Municipal Council of Seoni as apparent from b. This is also clear from the map c that the road straightway joins to national highway No. 7. It is clearly a public street as defined under sub-section (28) of section 3 of the Act. As the same is recorded as such. There is untraversed allegation made in the petition regarding its user as public street. The total width of the road is 72 feet. It is clearly a public street as defined under sub-section (28) of section 3 of the Act. As the same is recorded as such. There is untraversed allegation made in the petition regarding its user as public street. The total width of the road is 72 feet. Considering the map of the public street it is directly connected with national highway No. 7, road is of the utmost importance for the public in general any narrowing down of the same is bound to cause obstruction and once public street is made, the Municipal Council and the collector Nazul could not convert it into the shopping complex. It is duty enjoined upon under Section 123 of the Act to remove obstruction and encroachment in the public street or places. In the instant case construction is proposed in violation of provisions of Section 123 (1) (f) of the Act. Once the area has been reserved for specific purpose the fiduciary status is that of trustee. They have to keep it and maintain it. ( 9. ) IN Olga Tellis and others Vs. Bombay Municipal Corporation and others, AIR 1986 SC 180 , the Apex Court held that private use of pavements and public pathways used for private purpose frustrates the very object for which they are carved out from portions of public streets. In Bombay Hawkers union and others Vs. Bombay Municipal Corporation and others, AIR 1985 SC 1206 , the Apex Court laid down that no one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public street, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. The duty of the municipal authorities has been emphasized time and again to protect such properties, public pathways, public parks by the Apex Court in State of U. P. Vs. Ata Mohd. AIR 1980 SC 1785 , Bangalore Medical Trust Vs. B. S. Maddappa, AIR 1991 SC 1902 , in Mis Gobind Pershad Vs. New Delhi Municipal Committee, AIR 1993 sc 2313 and in Municipality Vs. Mahdeoji, AIR 1965 SC 1147 , the Apex Court has time and again reiterated that removal of encroachment from public road is an obligation of municipality. In Municipal Corporation Delhi Vs. B. S. Maddappa, AIR 1991 SC 1902 , in Mis Gobind Pershad Vs. New Delhi Municipal Committee, AIR 1993 sc 2313 and in Municipality Vs. Mahdeoji, AIR 1965 SC 1147 , the Apex Court has time and again reiterated that removal of encroachment from public road is an obligation of municipality. In Municipal Corporation Delhi Vs. Gurunam kaur K, AIR 1989 SC 38 , Sodan Singh Vs. New Delhi Municipal Committee, air 1989 SC 1988 and Ahmedabad Municipal Corporation Vs. D. Balwant singh, 1992 (2) JT (SC) 363, tenders of the Municipal Corporation has candidly laid down. No person has any fundamental right to occupy a particular place and particular public road. ( 10. ) IT is clear from the above discussion that petitioner has been able to make out the case that the public street has reserved for that purpose. Thus, the respondents have no right to construct shopping complex on the public street for the private purpose and allot it. The action is in derogation to the provisions of the Act. ( 11. ) RESULTANTLY, writ petition is allowed. The impugned action initiated as per Annexures D, E and F is quashed. Respondents are directed to keep the public street free of obstruction. Costs on parties. Writ Petition allowed.