PETITIONER:
MUNICIPAL COMMITTEE, KARNAL
Vs.
RESPONDENT:
NIRMALA DEVI
DATE OF JUDGMENT24/11/1995
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 AIR 892 1996 SCC (1) 623
JT 1995 (9) 576 1995 SCALE (7)183
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
An area admeasuring 4 ft. x 6-1/2 ft. situated in Chaura Bazar near Rai Saheb Jogiwara, Karnal is claimed to belong to the respondent. The appellant asserted it to be part of public street. They found that the respondent had constructed a shop on the said portion of public street. Consequently, they issued a notice, after inspection, for demolition of the shop. Since the respondent did not demolish the shop, the appellant got the construction demolished necessitating the respondent to file the suit for damages. The Trial Court dismissed the suit by decree dated November 15, 1990. On appeal, the Additional District Judge by judgment and decree dated October 29, 1993 reversed the decree of the Trial Court and granted damages for a sum of Rs.20,000/-. The High Court in Second Appeal No.173/94 by order dated January 24, 1994 dismissed the appeal as usual in limine, which in recent past is getting changed by giving reasons which one hopes shall become a rule. Thus this appeal by special leave.
The only question is whether the aforestated disputed area is a public street. Section 2(23) of the Haryana Municipalities Act, 1973 (for short, ’the Act’), defines "street" thus :
(23) "street" shall mean any road,
footway, square, court, public park,
alley or passage, accessible, whether
permanently or temporarily to the
public, and whether a thoroughfare or
not; and shall include every vacant
space notwithstanding that it may be
private property and partly or wholly
obstructed by any gate, post, chain or
other barrier, if houses, shops or other
buildings abut thereon, and if it is
used by any persons as a means of access
to or from any public place or
thoroughfare, whether such persons be
occupiers of such buildings or not, but
shall not include any part of such space
which the occupier of any such building
has a right at all hours to prevent all
other persons from using as aforesaid ;
and shall include also the drains or
gutters therein, or on either side, and
the land, whether covered or not by any
pavement, verandah or other erection, up
to the boundary of any abutting property
not accessible to the public; Section 2(21) defines "public street" thus : "(21) "public street" shall mean any street -
i) heretofore levelled, paved,
mettalled, channelled, sewered or
repaired out of municipal or other
public funds; unless before such work
was carried out, there was an agreement
with the proprietor that the street
should not thereby become a public
street, or unless such work was done
without the implied or express consent
of the proprietor, or
ii) which, under the provisions of
section 180, is declared by the
committee to be, or under any other
provision of this Act becomes, a public
street; Under Section 61(1) (g) of the Act, all public streets vested in the Municipal Committee which records thus :
61. Property vested in committee - (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 and situated within the
municipality shall vest in and be under
the control of the committee, and with
all other property which has already
vested or may hereafter vest in the
committee, shall be held and applied by
it for the purpose of this Act, that is
to say, -
x x x x x x
g) all public streets, not being land
owned by the State Government, and the
pavements, stones and other materials
thereof, and also trees growing on, and
erections, materials implements, and
things provided for, such streets." Section 181 of the Act gives power to lay prosecution for encroachment on any street etc. Sub-section (2) of Section 181 gives power to demolish the unauthorised construction thus :
(2) Without prejudice to the provision
of sub-section (1), the Committee may,
by notice, call upon any person who has
committed a breach of the provisions
contained in the said sub-section, to
stop the unauthorised construction
forthwith and to remove or alter such
immovable encroachment or overhanging
structure as aforesaid within a period
of seven days and if such person fails
to show cause to the satisfaction of the
Committee or the Chief Executive Officer
or any person authorised by it or him
shall proceed to remove the unauthorised
construction and the cost of such
removal shall be recovered from the
defaulter. If the defaulter fails to pay
the cost of removal or unauthorised
construction on demand within fifteen
days, the costs shall be recoverable
from such person as arrears of land
revenue and the Committee may also
disconnect the water supply and sewerage
connections, as it may deem fit."
It would thus be clear that every street which is a public street vests in the Municipal Committee. If unauthorised construction is made by encroaching on it, after issuing the notice for demolition and service thereof, if the encroacher does not remove the same within the specified time, in addition to laying prosecution for contravention of the provisions of the Act, the Municipal Committee has power to have the unauthorised encroachments and construction removed and the to recover the costs thereof from him. It is seen that notice was in fact given to the respondent for removal of the construction. When the husband of the respondent was examined, he admitted that he constructed the shop after the purchase. Though the District Judge found that it is the private property of the respondent, in view of the fact that it is on a public street, by operation of Section 3(21), even the private property which forms part of public street, stands vested in the Municipal Committee. Thereby, the Municipal Committee has necessary power to have the unauthorised construction removed and encroacher ejected. If the encroacher does not voluntarily remove the unauthorised construction, the Municipal Committee has power to have it removed by exercise of the power vested under Section 181(2) of the Act. Since the Committee has exercised the statutory power, the award of damages is clearly illegal, unwarranted and unsustainable.
The appeal is accordingly allowed. The judgment and decree of the appellate court as confirmed by the High Court stands set aside and that of the trial court stands confirmed. But in the circumstances, no order as to costs in this Court and the appellate court.