Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Vinod Chatterji Koul and Ali Mohammad Magrey, JJ., had heard the instant PIL, directed to be registered by the Court on its own motion in terms State of J&K v. Mir Saifullah, CM No.4613 of 2020. The instant petition was regarding unauthorized/ illegal occupation of Government accommodation by the erstwhile allottees in the Union Territory of Jammu and Kashmir.

The Court had issued a notice to State directing it to file the details of properties/ official accommodations which were under illegal occupation of the erstwhile allottees including ex-Ministers/ ex-Legislators/ Bureaucrats in the Union Territory of Jammu and Kashmir. Pursuant to which the Estates Department, had filed the action taken report on 26-11-2020. According to the report:

“5. Many former ministers/ legislators/ retired officers/ politicians/political persons vacated Government accommodation after department served them notices, however, 74 of them are still occupying the Ministerial Bungalows/ Special Houses beyond the period of their allotment.  

  1. That the respondents have already given final eviction notices/ orders to all the illegal occupants.
  1. That besides above the Department has recovered rent of rupees 47,65,906 from illegal occupants w.e.f. February, 2020 to till date.”

Noticing that the government of Jammu and Kashmir was in the process of evicting the illegal/ unauthorized occupants in tune with the mandate of law and the rules governing the field the Bench expressed, 

“It is unfortunate that some former Ministers/ Legislators/ Retired Officers/ Politicians/ Political persons, etc., have illegally managed to continue to stay in the residential accommodation provided to them by the Government of Jammu and Kashmir, though they are no longer entitled to such accommodation.”

The Bench stated that the unauthorized occupants must realize that rights and duties go correlative to each other. Occupants must appreciate that their act of overstaying in the premise directly had infringed the right of another. The Bench further stated,

“Natural resources, public lands and the public goods, like Government bungalows/ official residence are public property that belongs to the people of the country.” 

Any former Minister/ Legislator/ Retired Officer/ Politician/ Political person, once demitted from office, stand on a par with the common citizen, though by virtue of the office held, he/ she may be entitled to security and other protocols as per the assessment of the concerned filed agency. But allotment of government bungalow, to be occupied during the lifetime of such persons, would not be guided by the constitutional principle of equality.

 While relying on the judgments of the Supreme Court in S. D. Bandi v. Divisional Traffic Officer, Karnataka: (2013) 12 SCC 631’; and Lok Prahari v. State of U.P. (2016) 8 SCC 389, the Bench reiterated that such illegal and unauthorized occupation was bad in law, and directed the authorities concerned to recover appropriate rent from the occupants of the said government accommodation for the period during which they were in unauthorized occupation of the said accommodation. The Bench stated,

“No law or direction could entirely control this act of disobedience, but for self-realization among the unauthorized occupants.”

Accordingly, the case was disposed of with the following directions:

  1. The directions passed by this Court from time to time in the matter of eviction of unauthorized/ illegal occupants should be strictly implemented by the authorities concerned in the same spirit in which they were meant to be;
  2.  The Chief Secretary of the Government of Jammu and Kashmir and the Secretary to Government of Jammu and Kashmir, Estates Department, should take all possible steps for ensuring eviction of the illegal/unauthorized occupants in tune with the mandate of law provided by  the Supreme Court in the two judgments referred to hereinabove;
  3. The Chief Secretary of the Government of Jammu and Kashmir and the Secretary to Government of Jammu and Kashmir, Estates Department, should ensure recovery of rent/ arrears of rent from the occupants of Government accommodation for the period for which they were in authorized/ unauthorized occupation of the said accommodation as Land Revenue.

[Union Territory of J&K v. Sumeera Jan, 2021 SCC OnLine J&K 85, decided on 18-02-2021]


Kamini Sharma, Editorial Assistant ahs put this story together.

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Sandeep Mehta, J. gave directions to remove all encroachments which hinder the use of public property.

It was alleged that the plot which was allotted to the petitioner was encroached upon by the respondents. The area encroached upon included roads and parks which were meant for the public at large. Also despite the direction given by the High Court almost five years ago, till date, the encroachments on the roads and the steps reserved for public utility continued to thrive.

The Court firmly believed that had there been initiatives taken by the authorities for the same the issue would not have arisen. It was of the view that since the encroachments were hindering the use of public property, the land shall be liberated for use of Government lands, roads, designated park areas, and open lands.

Accordingly, the Commissioner, JDA was directed to forthwith initiate lawful proceedings for the removal of the encroachments from roads and lands reserved for parks. Along with it, notice for removal of the encroachments shall be issued and action is taken accordingly. Appropriate and adequate force shall be made available to the officials. Also no Civil Court shall grant any stay on the proposed removal of the encroachments specifically for such road and parks.

With above directions, the writ petition was disposed of. [Suraj Prakash Dave v. State of Rajasthan, S.B. CWP No. 10932 of 2016, order dated 31-10-2018]

 

 

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Case BriefsSupreme Court

Supreme Court: In the matter where in all 869 leases were alleged to be given by the Municipality to different persons without authority of law and on which constructions have been put up without any formal lease executed in favour of concerned persons/occupants nor the approval of the State Government in terms of Section 65 of Gujarat Municipality Act, 1963, was obtained, the Court said that municipality is a trustee and must, therefore, ensure that public streets are not encroached upon.

The Bench of T.S. Thakur, CJ and A.M. Khanwilkar, J 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 a formal lease deed executed in that behalf and more so in respect of a land falling within the public street no right can enure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of the State Government for such allotment and grant of lease has been obtained by the Municipality.

It was alleged that he direction given by the Gujarat High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure was in derogation of the Section 258 of the Gujarat Municipalities Act, 1963. Rejecting the said contention the Court said that municipality 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.

Directing the removal of the encroachment, the Court said that considering the fact that some of the structures may be in existence for quite some time and have been tolerated for all these years, it may warrant a humane approach to be taken by the State Authorities. For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property.

However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorized occupants to alternative location, if the unauthorized structure in occupation of a given person has been tolerated for quite some time or has been erected before the cut off date to be specified in that regard. If the structure has been erected after the cut off date, no right of rehabilitation would enure to the occupant(s) of the unauthorized structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy within six months from today, if already not in existence. [Asikali Akbarali Gilani v. Nasirhusain Mahebubbhai Chauhan, 2016 SCC OnLine SC 1122, decided on 07.10.2016]

Case BriefsSupreme Court

Supreme Court: Expressing serious concern over the issue pertaining to government bungalows occupied by former Chief Ministers of the State of Uttar Pradesh, the 3-judge bench of A.R. Dave, N.V. Ramana and R. Banumathi, JJ held that such an act is bad in law and the concerned respondents shall hand over possession of the bungalows occupied by them within two months from the date of this order  and the State Government shall also recover appropriate rent from the occupants of the said bungalows for the period during which they were in unauthorized occupation of the said bungalows.

Examining the question that whether the provisions of Ex-Chief Ministers Residence Allotment Rules, 1997 are valid or contrary to the provisions of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981, the Court held that the position of the Chief Minister and the Cabinet Ministers of the State cannot stand on a separate footing after they demit their office. Moreover, no other dignitary, holding constitutional post is given such a facility. For the afore-stated reasons, the 1997 Rules are not fair, and more so, when the subject of “salary and allowances” of the ministers, is governed by Section 4 (1) (a) of the 1981 Act. Stating that the 1997 Rules are not statutory but only executive instructions, it was held that when the 1981 Act enables the Chief Minister to have residential accommodation only during his tenure and for 15 days after completion of his tenure, the 1997 Rules providing for an accommodation for life to the Chief Minister cannot be said to be legal and valid as If there is any variance in statutory provision and executive instruction, the statutory provision would always prevail.

It was further held that public property cannot be disposed of in favour of any one without adequate consideration. Allotment of government property to someone without adequate market rent, in absence of any special statutory provision, would also be bad in law because the State has no right to fritter away government property in favour of private persons or bodies without adequate consideration and therefore, all such allotments, which have been made in absence of any statutory provision cannot be upheld. If any allotment was not made in accordance with a statutory provision at the relevant time, it must be discontinued and must be treated as cancelled and the State shall take possession of such premises as soon as possible and at the same time, the State should also recover appropriate rent in respect of such premises which had been allotted without any statutory provision. [Lok Prahari v. State of U.P., 2016 SCC OnLine SC 750, decided on 01.08.2016]