MU­NIC­I­PAL­ITY, BE­ING A TRUSTEE, MUST EN­SURE THAT PUB­LIC STREETS ARE NOT EN­CROACHED UPON

Libertatem Magazine - - From The Courtroom -

Case - Asikali Ak­bar­ali Gi­lani v. Nasirhu­sain Ma­he­bubb­hai Chauhan, 2016 SCC On­line SC 1122, de­cided on 07.10.2016

The Apex court while deal­ing with a case where around 869 leases were given by the Mu­nic­i­pal­ity to dif­fer­ent per­sons with­out any au­thor­ity of law and in ab­sence of any for­mal lease ex­e­cuted in favour of con­cerned per­sons and with­out the prior ap­proval of the State Gov­ern­ment in terms of Sec­tion 65 of Gu­jarat Mu­nic­i­pal­ity Act, 1963, ob­served that mu­nic­i­pal­ity be­ing a trustee should en­sure that pub­lic streets are not en­croached upon. The Court held that the fact that a res­o­lu­tion has been passed by the Ex­ec­u­tive Com­mit­tee of the Mu­nic­i­pal­ity or a let­ter of al­lot­ment is is­sued by the Mu­nic­i­pal­ity, can­not le­git­imize the oc­cu­pa­tion of a pub­lic prop­erty in ab­sence of any for­mal lease deed ex­e­cuted in that be­half and more so in re­spect of a land fall­ing within the pub­lic street.

It was ar­gued that the di­rec­tion given by the Gu­jarat High Court to take back the pos­ses­sion of the con­cerned prop­erty and re­move il­le­gal oc­cu­pants there­from and to de­mol­ish the unau­tho­rized con­struc­tions was in dero­ga­tion of the Sec­tion 258 of the Act of 1963. The court while re­ject­ing the said con­tention said that­mu­nic­i­pal­ity is obliged to re­store the pub­lic prop­erty as it had orig­i­nally ex­isted, if such di­rec­tion is is­sued by the Collector and hence, the High Court’s di­rec­tion is not in dero­ga­tion of the said pro­vi­sion; and par­tic­u­larly when the Collector is ex­pected to ex­er­cise that power by fol­low­ing due process.

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