RAVINDRA v. GHUGE, & Y. G. KHOBRAGADE, JJ.DATE ON
Legal Reasoning
WP-15393-2023-Judgment IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 15393 OF 2023Shaikh Babu s/o Shaikh MohammadAge 57 years, Occu: BusinessR/o Mughalpura, Near PanchakkiKohinoor Colony, Aurangabad ….....PetitionerVERSUS1.The State of Maharashtra,Through its Secretary,Urban Development and Welfare Department, Mantralaya, Mumbai-322.The Municipal Co Corporation,Aurangabad,Through Its Commissioner.... RespondentsMr. Akram Inamdar, Advocate h/f Adv. S. S. Kazi for the PetitionerMr. A. B. Girase, the Government Pleader, for Respondent No. 1 StateMr. S. S. Tope, Advocate for the the Respondent No. 2CORAM: RAVINDRA V. GHUGE, & Y. G. KHOBRAGADE, JJ.DATE ON :19-12-2023.JUDGMENT: (Per- Y. G. Khobragade, J.)1. Rule. Rule made returnable forthwith. With the consent of bothsides, heard finally at the stage of admission.Page 1 of 13
Legal Reasoning
WP-15393-2023-Judgment2. Heard at length Mr. Akram Inamdar, Advocate, the learnedcounsel appearing for the Petitioner and Mr. A. B. Girase, theGovernment Pleader appearing for the Respondent No.1 State and Mr.S. S. Tope, the learned counsel appearing for the Respondent No. 2Municipal Corporation. 3.The Petitioner has put forth prayer clauses (B) as under:"(B) By issuing writ of mandamus or any other writ or direction inthe like nature, the impugned notice/ communication dated29-11-2023 issued by respondent no. 2 bearing No. 64/2023be quashed and set aside.4.The learned counsel for the petitioner in vehemence canvasedthat, the Petitioner has been running a tea stall near the main gate ofthe Government Hospital &Training Institute (for the sake of brevity,herein after to be referred as “G. H. A. T .I”). Initially in the year 1984,the petitioner was inducted as a tenant on a small portion admeasuring3 X 6 Ft., on rent of Rs. 30/- per month. The Petitioner is serving Tea tothe patients, relatives of the patients, Doctors, Medical Staff Members.Therefore, the business of the petitioner flourished at the said place.Respondent No. 2 Municipal Corporation extended the portion of thepremises to 6X18 Ft., and increased rental charges per month. Presently,the petitioner is paying Rs. 25,896/- toward annual rent. Accordingly,on 08-06-2022, the petitioner paid the said rental charges. There arefew more shops which are given on rent by Respondent No. 2 near maingate of G. H. A. T. I . So also, there are encroachments on road side.Therefore, the Respondent No. 2 Municipal Corporation published apublic notice thereby giving a notice period to the encroachers forremoval of the encroachment in the daily Newspaper “Lokmat” datedPage 2 of 13 WP-15393-2023-Judgment28-10-2023. Therefore, the petitioner apprehends removal of his shop,though he is not an encroacher. The petitioner was granted portion ofland by the Respondent No. 2 and lease/rent amount been regularlypaid by the Petitioner. Therefore, on 17-10-2023, the Petitionersubmitted a representation to Respondent No. 2 stating that he has beenrunning the tea stall with due permission of the Corporation and hence,he is not an encroacher and therefore, his stall should not be removed.5.The learned counsel for the petitioner further canvased that,the petitioner is having Licence under the Bombay Shops andEstablishment Act. The Petitioner had filed the Suit bearing R. C. S. No.1244 of 1996 for perpetual injunction restraining Respondent No. 2 i.e.Municipal Corporation from removing his Tea Stall. On 15th July, 1997,the VI th Joint Civil Judge (Sr. Dn.,) Aurangabad passed the Judgmentand order, thereby restrained Respondent No. 2 it’s agents, servantsfrom removing the tea house of the plaintiff, except by following thedue process of law. Thereafter, the petitioner had submittedrepresentations dated 3-7-2006 and 4-8-2006 to Respondent No. 2, butthose representations remained undecided. Therefore, the Petitionerhad filed Writ Petition No. 89 of 2007 and had prayed for directions todecide the representation. On 12-01-2007, the Co-ordinate bench of thisCourt passed an order and directed Respondent No. 2 to decide thepetitioner’s representations in accordance with law and to communicatethe said order to the petitioner. Therefore, the petitioner’s possessionover the land in question and Tea stall is neither unauthorised nor anencroachment. On 29-11-2023, the petitioner was served with a noticeu/s 478 (1) of the Maharashtra Municipal Corporation Act calling uponhim to remove Tea Stall within 24 hours. Therefore, the impugnednotice is illegal bad in law.Page 3 of 13 WP-15393-2023-Judgment6.Per contra, Adv. Tope, the learned counsel appearing for theRespondent no. 2 strongly resisted claim of the petitioner on the groundthat, no permanent land or structure was given to the petitioner eitheron written lease or rent. The petitioner erected a Tea Stall near themain Gate of “G. H. A. T. I”, beside the road. Therefore, as per theproperty Tax Rules, meager amount of tax towards rent was collectedfrom the petitioner. So also, the petitioner deposited Rs. 25,896/- on08/06/2022 till 31-03-2023, which is already expired and no furtherrent or lease amount received from the petitioner. The petitioner is anencroacher and structure of his tea stall is illegal and unauthorised.Therefore, he has prayed to dismiss the present petition.7.Having regard to the submissions canvased on behalf ofrespective parties, we have perused the record. It is an undisputed factthat, the petitioner is running a tea stall near the main gate of theMedical College and Hospital since 1984 under the valid Licence issuedunder the provisions of Bombay Shops and Establishment Act. Thepetitioner claimed that, he has been inducted as a tenant and payingannual rent to the Respondent No. 2, but the Petitioner has notproduced any written Lease Agreement or Rent Agreement. Prima facieit appears that, initially the petitioner encroached upon landadmeasuring 3X6 Ft., but later on he expanded the area to 6X18 Ft.Indeed, the petitioner deposited amount of Rs. 25,896/- as annual renttill 31-03-2023 and the said period is already over. Therefore, it cannotbe said that, the possession of the petitioner over the land and structurein question is legal. It is not the case of petitioner that, he has valid titleover the portion of land on which Tea Stall is standing. It is apparentthat Respondent No. 2 officials have been accepting such rent amountswithout there being any lease agreement. There is no provision of lawPage 4 of 13 WP-15393-2023-Judgmentcited by the Corporation under which it could have accepted therent/lease amount from the petitioner. 8.Needless to say that the Petitioner had filed a suit bearingR.C.S. No. 1244 of 1996 for perpetual injunction restrainingRespondent No. 2 Municipal Corporation from removing his Tea Stall.On 15th July, 1997, the 6th Joint Civil Judge (Sr. Dn.,) Aurangabaddelivered a Judgment and Decree and and restrained Respondent no. 2it’s agents, servants from removing the tea stall, except by following thedue process of law.9.It further appears that, on 12-01-2007, a Co-Ordinate benchof this Court (Coram: P. V. Hardas And Shri P .R. Borkar, JJ.) passed anorder in Writ Petition No. 89 of 2007, thereby directing Respondent No.2 to decide the representations dated 3-7-2006 and 4-8-2006 of thePetitioner in accordance with law and to communicate its decision tothe petitioner. But the petitioner has not pleaded, whether hispossession over the Tea Stall has been regularised. Therefore, it wouldbe difficult to accept the contention of the petitioner about his legalpossession over the Tea Stall.10.In case of Olga Telis -Vs- Municipal Corporation, GraterBombay, AIR 1986 SC 180 , the Hon’ble Apex Court held that, even theencroachers should not be removed without following the dueprocedure of law.11.In the case of M. M. Sangtani -VS- Dhule Nagar Palika(Municipal Council), Dhule, AIR 1994 Bom., 189, the petitioners werepossessing tenements belonging to the Municipal Council, Dhule forPage 5 of 13 WP-15393-2023-Judgmentcarrying on petty business, for more than 20 years under the licencefrom the Municipal Council, Dhule under the Shops and EstablishmentsAct for carrying on their business in the tenements in question and thatthey were paying taxes to the Municipal Council from time to time. On1st March, 1987, some officers of the Municipal Council, Dhule alongwith a number of it's workers came to the premises of the petitioners fordemolition of the same on the ground that they were encroachers onthe public road, then the petitioners instituted suits in the Court of JointCivil Judge, Junior Division, Dhule and also sought temporaryinjunction. The trial Court was satisfied that it was a fit case and byorder dated 7th March, 1987 temporary injunction was issued to thepetitioners as prayed by them. Appeals were preferred by DhuleMunicipal Council, the 3rd Additional District Judge, Dhule by acommon judgment and order, dated 27th August 1990 set aside theorder of the Joint Civil Judge, Junior Division, dated 7th March 1987,granting an injunction in favour of the petitioners. The learnedAppellate Court find that prima facie case stood in favour of theAppellant. However, it was observed that, irreparable harm andinconveniences may not be sufficient criteria for granting an interiminjunction. The Appellate Court held that while considering the point ofbalance of convenience, it was necessary to see the surroundingprevailing circumstances and welfare of the general public at large; thatit was indispensable to protect the rights of community rather than theindividual rights. It is in this background that following observationswere made by this Court:"7. I have carefully considered the rival submissions. I fully agreewith the counsel for the respondent that the object of demolitioncannot be totally disregarded in considering the prayer fortemporary injunction. But, I am also conscious of the fact thatwhere valuable rights of the citizens are involved and shops intheir occupation for long 20 years are sought to be demolished,Page 6 of 13 WP-15393-2023-Judgmentthe courts are entitled and in fact required to look into thebalance of convenience of the shop-owners. Prima facie merit ofthe case and balance of convenience of the parties cannot begiven a good-bye on the ground that "what is sought to be doneis for the happiness of many". The principles governing grant oftemporary injunction are too well settled to need reiteration.Ordinarily an injunction should be issued if the court is satisfiedthat (a) a prima facie case exists (b) the balance of convenienceis in favour of granting injunction and (c) if injunction is notgranted irreparable injury would be caused to the party prayingfor injunction which cannot be compensated in terms of money.An interlocutory injunction should normally be granted torestrain an apprehended or threatened injury where the injury iscertain and imminent or where the mischief likely to be done isof an overwhelming nature viz. demolition and destruction ofproperty. 8. In the instant case I am, therefore, of the clear opinion thatthe approach of the 3rd Additional District Judge, Dhule in thematter was not correct. Having accepted the prima faciecontentions of the petitioners regarding long standing possessionof the petitioners, issue of licence to them under the Shops andEstablishments Act for all these years, granting electricconnection etc. and also having recorded a categorical findingthat there was a prima facie case in favour of the petitioners forgrant of interim injunction, the Additional District Judge was notjustified in setting aside the order of the trial Court grantingtemporary injunction on the basis of the philosophy propoundedby him in his order."12.In the case of Govindbhai R. Chauhan v. Gokulchand J.Agarwal MANU/MH/1062/1994MANU/MH/1062/1994:1996(2)Mh.L.J. 1062, it has been held that a trespasser in settled possession canseek temporary injunction to protect his possession till he isdispossessed in accordance with law. 13.In the case of Vinayak S. Bapat v.Superintendent of Police,Chandrapur and Ors., MANU/MH/0652/2005MANU/MH/0652/2005 :2006 (2) Mh.L.J 97 : AIR 2005 Bom. 328, this Court [Shri J.N. PatelPage 7 of 13 WP-15393-2023-Judgmentand B.P. Dharmadhikari JJ] has considered the issue of removal ofencroachment and observed in para 26 & 27 as under:Para 26: One of the excuses pleaded by respondent No 3 Municipal Council is pendency of issue in subordinate Courts. The parties to these court proceedings are not before us. Hence it is not possible for us to make any effective or bindingcomment on any of these proceedings. However the law on the point in relation to encroachments or hawkers is considered above and were also made reference to judgment of Hon'ble Apex Court in case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan reported at MANU/SC/0051/1997MANU/SC/0051/1997:AIR1997SC152 (supra). In paragraph 27 below we have also extracted the important observations in this respect. It is apparent that plaintiff or applicant who wants his encroachments on public Road to be protected by any interim order has to satisfy the court about existence of any legal right in his favour to maintain such encroachment during pendency of suit and for that purpose, he has to point out some title in him authorisinghim to occupy the portion of public Road or footpath etc., In the absence of any such legal right, the encroacher cannot be permitted to obstruct the free flow of traffic or cause inconvenience to public at large. Mere long possession or usercannot be an answer to tilt the balance in his favour when in other pan of balance, the Court has to way interest of public at large. Even the threat of loosing source of livelihood cannotbe, by itself a circumstance in favour of such applicant. He encroached upon public road or footpath knowing fully well that nobody can clothe him with authority to occupy and use it for his private gain. He cannot feign ignorance of provisionsof Law and try to raise equity in his favour. Court of Law cannot permit such wrongdoer to continue to injure public at large during pendency of suit. Hence, his plaint itself must contain sufficient material and facts to satisfy the court that the convenience and interest of public at large must suffer because of legal right in his favour, which will be a very rare case. 27. Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan reported at MANU/ SC/0051/ 1997 MANU/ SC/0051/1997 : AIR1997SC152 (supra) is the judgment which lays down law on the point of removal of encroacher from Page 8 of 13
Decision
WP-15393-2023-Judgmentpublic lands/road. Following observations therein are important:9. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic one to meet the given fact situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or re-passing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tedious and time-consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum ofreasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachmentis not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action taken by Page 9 of 13 WP-15393-2023-Judgmentthe appellant-Corporation is not violative of the principle of natural justice.14.In the case of Municipal Council-vs- Kundanlal MohanlalJaiswal and Ors., 2007 (3) Mh. L.J. 155, it has been held that, merelong possession or threat of losing source of livelihood cannot be takenas a circumstance in favour of the encroacher. If an encroachment isrecent, then there is no requirement to follow principles of naturaljustice. However, if Municipality allows settlement for a long time thenreasonable notice must be served. 15.In the case of Mohd. Suleman v. S.O., Municipal Corporationof Hyderabad, AIR1994AP275 , it has been observed as under:"10. Following the ratio of the Supreme Court's decision in SodanSingh case (supra), I hold that the petitioners have no legal rightto insist that they should be permitted to retain their structures ona busy road margin when the road itself is sought to be widenednor can it be said that till an alternative accommodation is shownby the Municipal Corporation, the petitioners have a right tocontinue their business even at the cost of holding up the roadwidening programme. No doubt, a scheme has been directed to beframed in Sodan Singh's case (supra) to regulate the street tradingand to rehabilitate some of them in the zone specially selected forsquatting/hawking and while considering the scheme prepared bya Committee, the Supreme Court pointed out the need to adopt acompassionate approach so as to ensure that genuinesquatters/hawkers are not denied their daily bread on the altar oftechnicalities [vide para-2 of Saudan Singh case (supra)]. Butnowhere it is spelt out that in all cases of encroachment of publicroads and streets by poor for the purpose of making theirlivelihood , a proposal for rehabilitation in an alternative place is acondition precedent for taking any step to remove theencroachment. A large section of pavement vendors in the city ofDelhi called for a special approach especially having regard to thefact that the permission to squat was being granted to the traderson daily basis or for short periods by the Corporation itself. TheCorporation itself conducted a survey and prepared a scheme toPage 10 of 13 WP-15393-2023-Judgmentdetermine the categories of persons to be considered for grant ofpermission to squat subject to availability of space. In framing thescheme, the hawkers/squatters in busy areas having severe trafficcongestion were allotted space for their business in some less busyareas. The case of two or three persons running mechanicalworkshops by putting up temporary structures on the road marginare not comparable to cases of large section of squatters/hawkersconsidered by the Supreme Court in the aforementioned case,especially when the road widening work had to be urgentlyundertaken in public interest. It is not even the case of thepetitioners that they were prepared to go to any place or that theyapproached the Municipal Corporation for a grant of suitable siteat a non-objectionable place."16. In the case of Dr. H. S. Rikhy -vs New Delhi MunicipalCommittee, AIR 1962 S.C. 555, the Hon’ble Apex Court held that, theuse of the word “Rent” in receipts passed by a Municipality to theoccupiers of the shops in the market constructed, by itself is notconclusive that relation of landlord and tenant is created between theMunicipality and the said occupiers. The word “rent” may be used in thelegal sense as amount paid by the tenant to the landlord for theexclusive possession of the premises occupied by him. It may also beused in the generic sense, without importing the legal significanceaforesaid of compensation for rise and occupation. “Rent” in the legalsense can only be reserved on a premise of immovable property. Hence,the use of the term ‘rent’ cannot preclude the landlord from pleadingthere is no relationship of landlord and tenant. The question must,therefore, depend upon whether or not there is a relationship ofPage 11 of 13 WP-15393-2023-Judgmentlandlord and tenant in the sense that there is a transfer of interest bythe landlord in favour of the tenant. 17.In the case in hand, the rent period for which the petitionerhas deposited an amount already lapsed on 31-03-2023. As per the viewtaken by the Hon’ble Apex Court in case of Dr. H. S. Rikhy, (supra) thealleged rent receipt relied upon by the petitioner is not conclusive proofto create any right that, the petitioner is the tenant/lessee of theRespondent No. 2. Further, said alleged rent receipt does not create anyproprietary in favour of the petitioner. Respondent No. 2 has foundvarious other encroachments on the road side in front of main gate ofthe G. H. A. T. I., due to which there is always a hurdle for ingress andegress of the patients, visitors, Ambulance and obstructions to trafficflow. Therefore, Respondent No. 2 has served the notice dated 29-11-2023 and called upon the Petitioner to remove encroachment within 24hours as the period of Tea Stall has expired on 31-03-2023, which doesnot appear to be illegal or bad in law. Therefore, considering ratio laiddown in above cited judgments, it is clear that, a mere plea that thepetitioner is running the Tea Stall since 1984 does not establish his rightto carry on business on a public street.18.Respondent No. 2 is an artificial person created under theprovisions of the Municipal Corporation Act. Therefore, it is thePetitioner who has to establish that the possession of land in questionPage 12 of 13 WP-15393-2023-Judgmentwas given to him in accordance with the provisions of the MunicipalCorporation Act. However, nothing has been brought on record to showthat the possession of the land in question was given to the petitioner inaccordance with the provisions of law. It is to be noted that, thepetitioner got sufficient time to make alternate arrangements afterreceipt of notice for removal of encroachment, but as already statedabove, the petitioner desires to prosper at the cost of the general publicwhich cannot be tolerated at all, moreso since such encroachments havebecome a nuisance in front of the Govt. Medical College and Hospital.19. In view of the above discussion, this Writ Petition is herebydismissed. Rule is discharged. No order as to cost.( Y. G. KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J.)JPChavan Page 13 of 13