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Madhya Pradesh High Court · body

2016 DIGILAW 865 (MP)

Jogesh v. Indore Municipal Corporation

2016-09-26

VIVEK RUSIA

body2016
ORDER : Vivek Rusia, J. With the consent of the parties, present petition is heard and decided finally at motion hearing stage. The petitioner has approached this Court by way of writ petition under Article 226 of the Constitution of India seeking following reliefs : (i) A writ, direction or order of or in the nature of Mandamus to compel the respondents to take action to remove encroachment from the entire strip of land indicated in the site plan Annexure-P/1 (ii) A writ, direction or order of or in the nature of Mandamus to compel the respondents to take steps against their municipal staff responsible for allowing the encroachment to take place, consolidate and continue. 2. The petitioner, who is at present residing at Australia, is the owner of the property called "Lantern Hotel" situated between Yashwant Niwas Road and Yashwant Club Road. This property is in the same line as official residential bungalows of the Mayor and the Commissioner of Indore Municipal Corporation and house of respondent no. 8 and 9. In the month of 2013, when the petitioner visited India and came to his property i.e. Lantern Hotel, he found that the vacant portion between his house and the road has been encroached upon by someone. At that time, the petitioner was not aware about, that who and under whose instructions, the area has been encroached by fencing and plantation has been carried out therein. The petitioner has demonstrated the said encroached portion by way of site plan, which is filed as Annexure-P/1 in this petition. As the owner of the property is entitled to ingress from and egress to the public street and to his property vice-versa at every point. The petitioner made complaint to respondent no. 1 to 7 and requested to identify encroacher and called upon him to furnish the authority under which he has made encroachment. 3. The petitioner has described the rights and duties of the Municipal Corporation under the various provisions of the Municipal Corporation Act, 1956 like sections 322-A, 307 and 293 in the notice dated 09/01/2014, and by which, he called upon respondent nos. 1 to 3 for removal of the encroachment. 3. The petitioner has described the rights and duties of the Municipal Corporation under the various provisions of the Municipal Corporation Act, 1956 like sections 322-A, 307 and 293 in the notice dated 09/01/2014, and by which, he called upon respondent nos. 1 to 3 for removal of the encroachment. Since no action was taken and the said encroachment is causing inconvenience to the petitioner and diminishing the value of the property, therefore, the petitioner had no option, but to approach this Court under Article 226 of the Constitution of India seeking directions initially to respondents 1 to 3 to perform their duties as provided under the Municipal Corporation Act. 4. Vide order dated 19/03/2014, considering the seriousness of the matter, notice was issued to the respondents and the Indore Municipal Corporation was directed to take appropriate steps as expeditiously as possible and the Commissioner, Indore Municipal Corporation was directed to file an affidavit in respect of the alleged encroachment of private land as well as over the public street, adjoining to the public street. The order dated 19/03/2014 is reproduced below : "W.P. No. 2134/2014 19/03/2014 Mr. A.K. Chitale, Sr. Counsel with Mr. S.V. Abhyankar, learned counsel for the petitioner. Issue notice to the respondents, on payment of PF within seven days, failing which the writ petition shall stand dismissed, without reference to this Court. Learned Sr. Counsel has vehemently argued before this Court that on account of alleged encroachment, though the petitioner's land has been encroached, the same is resulting in great inconvenience to the public at large as the road is being used by the residents of Indore for a morning walk and for the purposes of jogging. It has been stated that there is no parking space left and persons who are very influential holding a very high position have encroached a part of the public street, which is in front of Yashwant Club Road. The matter appears to be a very serious matter, keeping in view the allegations made in the writ petition and, therefore, the Commissioner, Indore Municipal Corporation is directed to take an appropriate steps as expeditiously as possible. Let affidavit be filed by the Commissioner, Indore Municipal Corporation in respect of alleged encroachment of a private land as well as over the public street, adjoining to the petitioner's land. Notice be made returnable within six weeks. Let affidavit be filed by the Commissioner, Indore Municipal Corporation in respect of alleged encroachment of a private land as well as over the public street, adjoining to the petitioner's land. Notice be made returnable within six weeks. List the matter on 30/04/2014." (S.C. Sharma) JUDGE 5. In compliance of the aforesaid order, the Commissioner, Indore Municipal Corporation filed an affidavit dated 21.08.2014, in which, it is submitted that the building officer visited the spot on 07.05.2014 and delivered notice seeking information regarding the alleged encroachment to the owner Shri Sunil Sojatiya of the house no. 10, Yashwant Colony, Indore. On receiving the said notice, Shri Sunil Sojatiya informed that vide letter dated 20.11.2007, permission was granted to him for planting and maintaining trees on the vacant land and an agreement to that effect was also executed. 6. As per the inspection report, the disputed area has been developed as green belt and for the protection of the said area, fencing was erected. However, by way of report, the Commissioner, IMC has justified the action of Shri Sunil Sojatiya and recommended for protection of that area as green belt. Vide order dated 31.10.2014, status report was filed by the Municipal Corporation, but it was found unsatisfactory and therefore, vide order dated 31.10.2014, respondent no. 3 was directed to file an affidavit disclosing the following facts : (i) Disclosing the authority and provision of law under which the agreement which is part of Annexure R/2 was executed with one person giving him the entire strip of land, which is to be used by the general public. (ii) The map with dimensions of entire area of strip of land which has been fenced and the number of gates existing for public to access the disputed strip of land and their location. (iii) Photographs of entire strip of land with each photograph covering 50 feet length of strip of land in succession. (iv) The photograph of the strip of land in front of the house of the person with whom the agreement in question has been executed. 7. In compliance of the court order dated 31.10.2014, again the Commissioner, IMC filed an affidavit on 26.02.2015 and the petitioner has also filed an application for amendment of the writ petition by impleading the officers of the Indore Municipal Corporation as respondent nos. 4 to 7 and the owner of the house no. 7. In compliance of the court order dated 31.10.2014, again the Commissioner, IMC filed an affidavit on 26.02.2015 and the petitioner has also filed an application for amendment of the writ petition by impleading the officers of the Indore Municipal Corporation as respondent nos. 4 to 7 and the owner of the house no. 10, Yashwant Colony, Indore as respondent nos. 8 and 9 on the same day. On the same day, the affidavit of the Commissioner, IMC was also considered and the respondents were directed to file relevant resolution, in pursuance to which, the so-called agreement was executed. 8. Service of the notice to respondent nos. 8 and 9 were affected and they were directed to file returns. Respondent nos. 8 and 9 filed their returns on 16.08.2016. In the return, respondent nos. 8 and 9 submitted that there is no encroachment on the petitioner's alleged property and the petitioner is having remedy to file a civil suit or an application under section 307(5) of the Municipal Corporation Act. They have further submitted that there are other owners of the property of "Lantern Hotel" and they have not been joined as petitioner. They justified their action by contending that before the year 2007, there was a Nala, which was being used to put filthy garbage and other house hold materials, which was causing nuisance to the local residence, therefore, they submitted an application before the Municipal Corporation, Indore for maintaining the said area as garden and plantation and the said application was accepted and the agreement was executed later on. Under the said agreement, they are maintaining with greenery of that area and to avoid the encroachment, fencing has also been erected. They have further submitted that they have provided number of gates in the fencing and the petitioner is free to use his property and there is no encroachment by them. The petitioner has not filed any rejoinder and agreed to argue the petition on the basis of the material on record. 9. Shri A.K. Chitle, learned Sr. Counsel has drawn attention of this Court towards the various provisions of the Municipal Corporation Act. He submits that under section 15 of the Easement Act, 1982, the petitioner has right to access and use of light or air to and for his premises, which is being enjoyed by him as an easement without interruption for last so many decades. Counsel has drawn attention of this Court towards the various provisions of the Municipal Corporation Act. He submits that under section 15 of the Easement Act, 1982, the petitioner has right to access and use of light or air to and for his premises, which is being enjoyed by him as an easement without interruption for last so many decades. Under section 57 of the M.P. Land Revenue Code, the State Government is having ownership over the land including standing and flowing water, mines quarries, minerals and forests reserves etc. and entire lands are the property of the State Government. He has further submitted that "public street" is defined under section 5(49) of the Municipal Corporation Act and the "street" is defined under sections 50 and 56 of the Municipal Corporation Act and it is the duty of the Municipal Corporation to provide public street. Under section 293 of the Act, no person has right to erect or re-erect over the public street without permission of the Municipal Corporation. Under section 307 of the Act, the power has been given to the Municipal Corporation to remove the said illegal erection or re-erection in contravention of any town planing scheme etc. He has further drawn attention of this Court towards section 318, 320, 322 and 322-A of the Act. Regarding prohibition of projection upon streets, he submits that the action of respondent nos. 8 and 9 in connivance with respondent nos. 1 to 7 is contrary to the provisions of the Municipal Corporation Act as the same is also causing obstructions in the free flow traffic of the road. The area between the Yashwant Club and the house of the petitioner is a public street. 10. In support of his contention, he has placed reliance over the judgment of Hon'ble Supreme Court delivered in the case of State of U.P. v. Ata Mohd reported in (1980) 3 SCC 614 , in which the Hon'ble Apex Court has held that the street is vested in the municipality and the land adjoining to road falls within the definition of street and if Municipality puts the streets to any other user, then such action would be an illegal and it is their duty to maintain as road. 11. In support of his contention, Shri A.K. Chitle learned Sr. 11. In support of his contention, Shri A.K. Chitle learned Sr. Counsel has also cited Halsbury's Laws of England, in which right of access by adjoining owners has been discussed. According to which, owner of the land adjoining a highway is entitled to access that highway at any point, at which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right, if a strip of land, however, narrow, belonging to another and not subject to the public right of passage, intervenes. The relevant part is reproduced below : The right of access of any adjoining owner from his premises to the highway and vice versa is a private right, and is distinct from his right to use the highway as soon as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public. An interference with the transference of goods from the highway to private premises is, therefore, an interference with a public right, in which the owner of the premises has an individual interest as a member of the public. The private right of access is subject to the public right of passage, which is the higher right, but the public right of passage is also subject to the private right of access to the highway, where the adjoining owner may exercise that right by means, which do not amount to a serious obstruction to the right of passage and are not, therefore, inconsistent with it. The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises. Where a footwalk intervenes between the carriage way and the adjoining premises, the owner of those premises, if he also owns the soil up to the middle of the highway, is entitled at common law to access across the footwalk to the carriageway for any kind of traffic, which is necessary for the reasonable enjoyment of his premises and will not, as he proposes to conduct it, cause a substantial nuisance and it seems, his rights are the same, even if he does not own the soil of the highway. 12. 12. He has further relied upon Section 315 i.e. Interference with right of access is reproduced in Volume 39 of the American Jurisprudence (2nd Edition) Section 315 "Interference with right of access. Various conclusions have been reached in considering whether interference with the right of access to and from abutting premises constitutes a special injury for the redress of which an action may be maintained by a private individual or corporation. It is generally held that one, whose means of ingress to and egress from his property is completely cut off by an obstruction suffers a special injury, different from that suffered by the public at large. A distinction has often been drawn, however, between an obstruction which is adjacent to the plaintiff's property and one which is located at a distance, although the injury inflicted may be the same, many courts taking the view that a recovery may be had in the former case, but not in the latter unless the distant obstruction is such as to prevent all ingress and egress to and from the property. Stated conversely, the rule applied by the courts taking such view is that, to warrant relief, the property must abut directly on the obstructed portion of the street or highway, or the obstructed portion thereof must furnish the only reasonable means of access to such property. Relief may not be had where the obstruction is beyond the next intersecting street, but relief may be had where the obstruction places the plaintiff's property in a cul-desac, that is, where the obstruction blocks his access to the next intersecting street, although access still exists in the opposite direction to an intersecting street. 13. He submitted that even the agreement which is executed between respondent nos. 1 to 7 and respondent nos. 8 to 9 to develop the area as green belt, is illegal because the Municipal Corporation has no authority to enter into such type of agreement. Even the resolutions no. 11 dated 09.03.2000 and no. 41 dated 18.02.2000 which deal with the development of the gardens and squares only, therefore, he prayed that respondents be directed to remove the encroachment on public property and the entire road be made available for the traffic. 14. Shri Chitle, learned Sr. Counsel further submits that in the said road, numbers of trees are already available. Lush green garden of Yashwant Club is also there. 14. Shri Chitle, learned Sr. Counsel further submits that in the said road, numbers of trees are already available. Lush green garden of Yashwant Club is also there. The said area is full of green, therefore, no additional area is required to be reserved for green belt. 15. Shri Amol Shrivastava, learned counsel appearing on behalf of respondent nos. 1 to 7/Indore Municipal Corporation submits that the agreement dated 19/11/2007 was executed by the Municipal Corporation in respect of the strip of land for maintaining greenery and the green belt area in front of house no. 10, Yashwant Colony, Indore and the said agreement was executed in pursuance to the resolutions no. 11 dated 09/03/2000 and no. 41 dated 18/02/2000. He further submits that as per the Clause-3 of these resolutions, any company or individual may apply for taking maintenance of the garden and the square. Since respondent nos. 8 and 9 had applied and they were ready to develop the greenery/green belt, therefore, with certain conditions, permission was granted. As per the map, total length of the said street is 560 ft and there are total four gates provided for public to access the disputed strip of the land and the traffic is not affected as there is 10 ft footpath available between the road and the disputed area of the land. He further tried to justify his action by contending that the authority of the Corporation has closed/fenced the strip of the land after house no. 10, Yashwant Colony, Indore towards the petitioner's plot and the petitioner is having passage to ingress from and egress to the public street and the Corporation is ready to execute the agreement with the petitioner also to maintain the said area as green belt. 16. Shri Vijay Sharma, learned counsel appearing on behalf of respondent no. 8 and 9 has argued in support of Municipal Corporation and submitted that the writ petition is not the remedy available to the petitioner. The intention of the answering respondents are not to encroach the government land, therefore, the intentions are bona fide to protect the green belt. The entire area is free to use by public, therefore, the same is liable to be protected. ORDER 17. That, this fact is not disputed that the Municipal Corporation has permitted respondent nos. The intention of the answering respondents are not to encroach the government land, therefore, the intentions are bona fide to protect the green belt. The entire area is free to use by public, therefore, the same is liable to be protected. ORDER 17. That, this fact is not disputed that the Municipal Corporation has permitted respondent nos. 8 and 9 to develop the disputed area as green belt, where the house owner in front of his house can use the government land for plantation purpose. To justify their action, the Municipal Corporation has relied upon two resolutions no. 11 dated 09.03.2000 and no. 41 dated 18.02.2000. 18. From perusal of the said resolutions, the fact is clear that the resolutions have been passed for development of the garden and the square by way of adoption by private individuals. The garden and the square must be already existing garden and square with Municipal limits. It has not been resolved that new area would be given to the private individuals to develop as garden. That area must be already declared as a garden and square already mentioned in the city master plan. 19. In the present case, that the Municipal Corporation has stated that the said area is a green belt area, but no such document or master plan has been filed to establish this fact. In the letter dated 20/11/2007, the garden officer has granted permission to respondent nos. 8 and 9 for plantation and maintenance of the land in front of house no. 10, Yashwant Colony, Indore. In this letter, it is mentioned that the land is a vacant land, therefore, there was no garden prior to 20/11/2007. The said land was lying as open/ vacant land. In the agreement also, it is mentioned as open/vacant land. There is no such provision under the Municipal Corporation Act to grant such permission to private individuals to develop the land for plantation/greenary. 20. From the photographs filed by the petitioner as well as the respondents, it is reflected that the entire area is covered and developed and used as a private garden by respondent no. 8 and 9 and is using it as it belongs to them. The respondent has sought permission to develop the land in front of his house, but he has planted and fenced upto the house of the petitioner. 8 and 9 and is using it as it belongs to them. The respondent has sought permission to develop the land in front of his house, but he has planted and fenced upto the house of the petitioner. It is settled law that the petitioner has easementary right to access from the road at any point at which his land is actually touches it. It is also not disputed that the land in dispute is belonging to the Municipal Corporation, Indore and which is a part of the public road. The respondent has no right to make any construction on the public street in the name of garden or green belt. The respondent has covered that area in the name of garden by virtue of agreement and the resolutions. Similarly, owners of other residents have also encroached the area in the same way by erecting fancing in front of their houses and using the same as garden. Parallel to this area, other vacant places are being used by others as personal property. When the petitioner objected, the Municipal Corporation ought to have removed the said encroachment in front of his house and in front of other houses. 21. That, the Municipal Corporation has wrongly applied the resolutions no. 11 dated 09/03/2000 and no. 41 dated 18/02/2000 to justify their action. As clarified above, these resolutions are pertaining to development of the existing garden and the squares, but not for the area adjacent to public street. The petitioner is entitled to access to the road at every point, where his property touches it. The permission, which was granted by the respondents concerned to respondent nos. 8 and 9 is for the area between the petitioner's land and the road, because of which, he is not in a position to approach the road from each point of his property. Under section 318 of the Municipal Corporation Act, even overhang or projection towards the road is not permissible. Projection or encroachment upon or cover any drain or open channel in any street so as to interfere in any way with the use or proper working of such drain or channel or to impede the inspection or cleansing thereof is not also permissible. Such conduct or act is punishable also under the provisions of the Municipal Corporation Act. It is the duty of the Municipal Corporation to maintain the road and remove the encroachment. Such conduct or act is punishable also under the provisions of the Municipal Corporation Act. It is the duty of the Municipal Corporation to maintain the road and remove the encroachment. It is very surprising that the Municipal Corporation is justifying the action of respondent nos. 8 and 9 as well as their action which is per-se illegal and without authority under the provisions of the Municipal Corporation Act, therefore, this Court have no option, but to direct the Indore Municipal Corporation, Indore to remove the said so-called encroachment in the name of garden made by respondent nos. 8 and 9 forthwith. Since it has been held to be encroachment over the road, therefore, this Court expect the Indore Municipal Corporation to remove the similar type of encroachment, even in front of the Government Bungalows. The public street is to be used as street and not for other purposes, therefore, direction to the Indore Municipal Corporation to remove all the encroachment from both side of public street in Indore City. Present writ petition is allowed with costs of Rs. 10,000/-. C.c. as per rules.