Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 980 (BOM)

Gangadhar Narayanrao Wat v. State of Maharashtra

2005-08-04

F.I.REBELLO, N.A.BRITTO

body2005
F. I. REBELLO, J.: - Rule. Heard forthwith. The petitioners had approached this court, as it is their case that on the East side of the layout there is a 20 feet sanctioned road by respondent no.3 the Nagpur Improvement Trust. It is their case that encroachers have put up illegal constructions and have closed the road by erecting huts. As a result of which, it is not possible for the petitioners to approach their houses and use the road. Petitioners along with other residents of the locality have filed a complaint of encroachment, one such complaint is dated 12 - 8 - 1994. Subsequent to the complaint, officers of Respondent No.4 the Nagpur Municipal Corporation issued a letter dated 21 - 2 - 1995 to the Nazul Officer. Though the petitioners have made various representations including oral request to remove the encroachment on the road, no action has yet been taken to clear the public way. It is pointed out that the land on which the layout road is situated is shown as Government land having city survey No.258/164. It is on account of this in action to remove the illegal construction the petitioners have approached this court for appropriate relief or directions to remove the encroachment of hut on public road. On behalf of the respondents no.1 and 2 their learned counsel have filed reply in which it is set out that the city survey Officer has submitted a report which indicates that the lands where encroachment has taken place, belongs to Nazul Department. The respondents have issued notices to encroachers as also to Respondent No.4 and others. In the notice issued to encroachers it was mentioned that if they are protected by Government Resolution dated 10 - 7 - 2002 and if they have proof of residence before 1 - 1 - 1995, they should submit their claim and objections to the office of the answering respondent. Notice has also been issued to Assistant Director, Town Planning, Nagpur, to point out whether the land in question is reserved for public road under development plan of N.M.C. The report received shows that the land in question is reserved for residential purpose in development plan of Nagpur Municipal Corporation. The encroachers have submitted proof of residence before 1 - 1 - 1995. It is found that they are protected by Government Policy. The encroachers have submitted proof of residence before 1 - 1 - 1995. It is found that they are protected by Government Policy. It is set out that the officer will issue notices to the encroachers for regularisation and will regularise the encroachment as per the Government Resolution. 2. An application bearing C. A. No.3988 of 2005 for intervention has been filed by seven applicants who the petitioners have contended were the encroachers, which is also been considered along with the present petition. It is their contention that the total area occupied by them is not more than 1500 sq. ft. and the names have been recorded in Government record. There is no record and any other scheme on the land. The area has been notified as a slum area. It is, therefore, submitted that they be allowed to intervene. Petitioners have filed reply to the intervention application and it is pointed out that encroachments are on a public road which is sanctioned as 25' wide road by Nagpur Improvement Trust and does not come under the slum area. 3. On 27 - 6 - 2005 we have noted that a large number of matters are coming up before this court in the matter of unauthorised constructions on public roads or properties or illegal construction on private properties. Inspite of complaints the statutory authorities are not taking any action and as such the court has to deal with a large number of matters which ordinarily should have been disposed off by the statutory Authorities. Considering the statutory power and duties which respondents no.3 and 4 have been conferred with and which they have to discharge we had directed Respondent no.3 and 4 for submitting proposals for setting up anti - encroachment Cell for each of the ten Zones and also submit a time frame within which the complaints received from the citizens will be decided. Pursuant to that direction and direction in some other petitions, the Nagpur Deputy Municipal Corporation has filed an affidavit in W.P. No. 1201 of 2003 through R. Z. Siddiqui, Municipal Commissioner. That reply is also to be treated as reply in this petition and xerox copy of the same is placed on record in the file of this Writ Petition. The affidavit discloses that a meeting as directed was held. In the meeting conducted and considering the various suggestions the following proposals have been made. That reply is also to be treated as reply in this petition and xerox copy of the same is placed on record in the file of this Writ Petition. The affidavit discloses that a meeting as directed was held. In the meeting conducted and considering the various suggestions the following proposals have been made. (A) Each Zone of the Nagpur Municipal Corporation/Area shall have mechanism where complaints made by any citizens of that Zone could be registered and complaint shall be acknowledged and forwarded to Anti - encroachment Cell for further verification. (B) The Anti - encroachment Cell shall take appropriate action wherever necessary as per due process of law within a period of fifteen days after the complaint is registered. (C) In case action could not be taken for some reasons the Ward Officer or any Officer deputed, shall inform the person who has lodged the complaint about the status of his complaint and also give reasons why the action could not be taken. (D) The working of the Anti - encroachment Cell shall be monitored by the Deputy Commissioner and Additional Deputy Commissioner in each of the respective Zones and they will review the work undertaken by search in each month in order to ensure effective action as per rules. (E) In case any citizen is aggrieved by inaction at the level of Deputy or Additional Deputy Commissioner, he can approach the Additional Commissioner or the Commissioner, Nagpur Municipal Corporation, who shall clear the complaint and if necessary direct redressal of the complaint to the Anti - encroachment Cell. It is also intimated that in the meantime the anti - encroachment Cell has already started functioning for removal of encroachment· on the public roads, streets, foot - paths and public places. 4. Considering the proposals put up on behalf of Nagpur Municipal Corporation, we think that same should substantially meet the cause with which the petitioners herein have been agitating. While accepting the proposals the Municipal Commissioner of the City of Nagpur Respondent no.3 shall prepare a similar mechanicism to entertain the complaints falling within their jurisdiction. In order that the citizen become aware as to where the complaint can be filed in respect of each ward, the Municipal Commissioner should name the post of Officer who will entertain the complaints in each Zone. This mechanicism be prepared within 30 days from today. In order that the citizen become aware as to where the complaint can be filed in respect of each ward, the Municipal Commissioner should name the post of Officer who will entertain the complaints in each Zone. This mechanicism be prepared within 30 days from today. On so doing, the Municipal Commissioner to notify the mechanicism prepared in terms of what is submitted to the court in form of suggestions B, C, D and E. The same shall then be published by way of advertisement in the three Daily Newspapers published in the city of Nagpur, with the largest circulation, one of which shall be in English, one in Marathi and other in Hindi. 5. Once the mechanicism is published ordinarily the complaint should be first made to the authorities set out and only on failure should aggrieved persons approach this court by invoking its extra - ordinary jurisdiction. 6. Having said so, we may also draw the attention of the authorities to the judgment of this Court in Down Mangor Valley, Residents Welfare Association and another Vs. Monnugao Municipal Council, Goa and others, AIR 2002 Bombay 258, where we have noted the judgment of the Apex Court in Dr. G. N. Khajuria Vs. Delhi Development Authority, AIR 1996 SC 253 . The Apex Court has made it clear in that judgment that the Legislature has conferred the power on the authority with the hope and object that they will discharge their statutory power honestly, faithfully and in the spirit in which such power have been conferred by the statute on public functionaries. The Apex Court also observed that those Officers of the bodies, who are entrusted with such functions and who fail to discharge their duties, such Officers shall be punished ~n accordance with Law. 7. For that purpose, if there be failure on the part of the Officers to discharge their statutory obligations or failure to address the complaints in terms of what has been placed before this court and accepted, the Officers guilty should be proceeded with by holding disciplinary proceedings in law when a case of misconduct prima facie is found against them and their conduct is found not to be bonafide. This apart from the fact that if the matter comes to this court, it will always be open to the court to impose such costs and damages and recover the same from such officers or the Municipal Corporation, as the circumstances of the case may warrant. 8. Having said so we now come to the facts of the present case. It must be made clear that any encroachments on public roads and foot paths cannot be legalized even if there be a policy of State Government. That policy cannot prevail over the provisions of the relevant Act and Rules, unless there be an Act which overrules the provisions of the Act governing the Nagpur Municipal Corporation, Public roads and foot - paths must be kept free from all encroachers. Considering the specific complaint by the petitioners herein, the Municipal Commissioner, if it is not possible for him to hear this complaint, to delegate powers to a Senior Officer of the Corporation duly authorised to hear the petitioners and the encroachers who are applicants in Civil Application No.3988 of 2005 and if it need be any others including Officers of the State of Maharashtra dealing with the land in question and thereafter to pass appropriate orders according to law at any rate within 12 weeks from today. Rule is made absolute accordingly. There shall be no order as to costs. Petition allowed.