Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Vinit Kumar Mathur and Sangeet Lodha, JJ., disposed of the petition and issued directions to the respondents to remove encroachments made over the land in question. 

The instant petition was filed by the petitioners seeking directions to the respondents to remove encroachments made over the land comprising Khasra Nos. 70, 73, 90, 106, 107, 108, 108/1, 114, 115 & 128 in Village-Chandana, Tehsil Shivganj District Sirohi wherein it is set apart in the revenue record as ‘Gair Mumkin Rasta’, ‘Gair Mumkin Nadi’, ‘Gair Mumkin Gochar’ and ‘Gair Mumkin Abadi’.

The Court relied on Gulab Kothari v. State of Rajasthan, D.B.C. Writ Petition No.1554 of 2004 wherein it was observed that

“146. It is well settled that the footpaths and public roads are meant for convenience of public at large and no private person can be allowed to make unauthorised use of the same for personal use. As a matter of fact, every citizen has right to pass over the footpaths and public ways and custody thereof with the State and the Local Authorities is in realm of public trust and therefore, what to say of private individuals even, the State Government and Local Authorities are yoked under an inhibition not to put any structure on footpaths and public ways, which is not necessary for regulating and maintaining the user thereof. Every inch of the land forming part of footpaths and public ways has to be preserved and maintained meticulously and therefore, the State Government and the Local Authorities, who are under an obligation to check growth of unauthorised encroachment made by unscrupulous persons on footpaths and public ways and remove the same, cannot shirk from their responsibility to take the appropriate measures in this regard.”

The Court further relied on judgment Jagdish Prasad Meena v. State of Rajasthan, D. B. C. Writ Petition (PIL) No.10819 of 2018 wherein it was observed

“In order therefore to provide a pan-Rajasthan solution to this ever persisting problem, we deem it appropriate to direct the Chief Secretary of the State to devise a permanent mechanism, which should be operational in every District of the State where the concerned District Collector should be required to periodically notify for the information of the general public to lodge the complaints/representations with regard to such encroachments with a specially designated Public Land Protection Cell (for short ‘PLPC’) for rural areas. The PLPC should be head by District Collector and function under his direction and supervision. The PLPC shall get such complaints/representations enquired into by deputing concerned Sub Divisional Officer/Tehsildar/Naib Tehsildar so as to verity whether or not such encroachments have actually taken place on such land.

If the allegations are found to be substantiated, appropriate steps in accordance with law be immediately taken for removal of the encroachments and appropriate penal action be also taken against the trespassers. The complaints/representations received in the PLPC should be decided by passing speaking order, informing the respective complainant/representationist about the action taken. This would obviate the necessity of such complainants/representations approaching this Court directly by way of public interest litigation. If this practice is put in place, this Court would not be inclined to directly entertain such public interest litigation or would do so only in the event of inaction on the part of the concerned PLPC. The PLPC aforementioned shall also keep in view the guidelines issued by the Supreme Court in Jagpal Singh & Others vs. State of Punjab & Others, (2011) 11 SCC 396 wherein all the State Governments of the country were directed that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/Poramboke/ Shamlat land and the same must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. The said scheme should provide for the speedy eviction of illegal occupants, after giving them a show cause notice and a brief hearing. It was further held therein that long duration of the illegal encroachment/occupation of land or huge expenditure in making construction thereon or political connections of trespassers are no justification for regularising such illegal occupation. Regularisation should be permitted only in exceptional cases where lease has been granted under some government notification .e.g. to landless labourers or members of Scheduled Castes/Scheduled Tribes or where there is already a school, hospital, dispensary, ‘shamshan’, ‘kabristan’ or other public utility of the like nature on the land. Observations of the Supreme Court in Jagpal Singh (supra) thus leave no manner of doubt that removal of encroachment on all such land is a rule and regularisation an exception and that too in extremely limited number of cases, which only the Government can do by appropriate notification of the government and no other authority.”

The Court held “In view of the directions already issued by this Court as aforesaid, no further directions are required to be issued in the instant case.”

[Ganpat Singh v. State of Rajasthan, 2021 SCC OnLine Raj 1752, decided on 03-09-2021]


Appearances:

For Petitioner(s): Mr. Moti Singh


Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While addressing the issue of encroachments of footpaths for the purpose of holding assemblies and protests, the Division Bench of Anil K. Narendran and Ziyad Rahman A.A., JJ., stated that,

“Footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads…forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.”

The instant petition had been filed by the Trivandrum Chamber of Commerce and Industry seeking a writ of mandamus commanding the respondents as well as law enforcement agencies including Police to formulate and issue guidelines for earmarking certain public areas in State of Kerala for the purpose of holding mass assemblies, including protests, campaigns, demonstrations, etc. The petitioners had contended that holding assemblies staged around Government Secretariat and Raj Bhavan, including the adjoining footpaths is illegal and unconstitutional.

Noticeably, various organisations and political parties were staging protests, demonstrations, etc., in public places, including footpaths/ pavements, causing serious inconvenience to general public and also commercial and other establishments set up at such places. The campaigns or protests on footpaths, which initially started on a temporary basis, had attained the nature of permanence along with sheds and others which provide shelter to the campaigners/ protesters and cause hindrance to the general public using footpath for the purpose for which it was constructed.

In C.S.S. Motor Service v. Madras State, 1952 SCC OnLine Mad 142 a Division Bench of the Madras High Court had held that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. In Sodan Singh v. Delhi Municipal Committee, (1989) 4 SCC 155, a Constitution Bench of the Supreme Court held that the primary object of building roads is undoubtedly to facilitate people to travel from one point to another.

The Bench opined that to what would constitute a public nuisance and what could be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. Noticeably, the Indian Roads Congress had formulated Guidelines for Pedestrian Facilities, as per Para. 4.2 of the said guideline, efforts should be made to create such conditions that pedestrians are not forced to walk in unsafe circumstances and that motorists respect the position of pedestrians. The Guidelines for Pedestrian Facilities had the approval of the Ministry of Road Transport and Highways (MoRTH). Hence, every local authority in the State is bound to provide pedestrian facilities on public roads in conformity with these guidelines.

In Sivaprasad v. State of Kerala and others 2020 (6) KHC 373, this Court held that, The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The Court had further held that,

“Nobody has got a right to erect any structures on roads. The State is not an exception. The National Highways and State Highways constructed by acquiring private property and by using public funds, can be used only for the travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials.”

Section 4 of Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 deals with prohibition of obstruction on public ways and as per sub-section (1) of Section 4, no person shall cause any obstruction by conducting any business or meeting or assembly or procession or demonstration on any public way or part thereof. As per sub-section (2) of Section 4, no meeting or assembly shall be conducted so as to obstruct any portion of the carriage way or footpath. As per subsection (3) of Section 4, no demonstration or procession shall be conducted in such a manner that the entire carriage way or free flow of traffic is fully obstructed.

Hence, the Bench held that the footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances. Accordingly, the state was directed to explain the steps taken to ensure strict enforcement of the orders of the Supreme Court and the relevant statutory provisions, including the Guidelines for Pedestrian Facilities formulated by the Indian Roads Congress in order to prevent encroachment of any nature, in any form, either temporary or permanent, on the right of way or pedestrian facilities on public roads. [Trivandrum Chamber of Commerce and Industry V. State of Kerala, W.P.(C) No.11886 of 2021, Order dated 08-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.