Case BriefsHigh Courts

Calcutta High Court: Expressing that, “Time has come that every dutiful citizen of the country must realize their duties and accountability to the society and must refrain from taking the law in their own hands”, Division Bench of Harish Tandon and Rabindranath Samanta, JJ., held that,

Destruction of the public property has a ramification on the society and the taxpayers are burdened for no fault on their part. The charging sections would evince that not only the Public Officers but the public properties have also been destroyed.

Petitioners filed the instant application for anticipatory bail while apprehending the arrest under Sections 147/148/149/325/332/353/435/427 of the Penal Code, 1860 read with Section 3 of the Prevention of Damage to Public Property Act and Section 9 of the West Bengal Maintenance of Public Order Act.

Matter of Great Concern

 The citizens of this country took the law into their own hands and vandalized not only the Police Officers while discharging their duties but also the public property.

Further, the Police Officers intercepted a person ferrying the sacred bull for performing the rituals and more than 100 people encircled the Police Station/Post to create a ruckus pressurizing the Police Officers to succumb to their unreasonable demand and refrain from discharging their statutory functions. The petitioners are the accomplices who accompanied such hooligans and according to the learned Advocate for the State they damaged public property.

High Court expressed that, in recent times, a tendency has developed in the society that if any action is taken by a Public Officer in pursuit of discharge of his duty, the mass gatherings are eminently done not only to create pressure upon them to desist them from discharging their pious duties but also to avoid any action to be taken by such Public Officers. Even sometimes public properties are damaged, and they do not owe any responsibility nor there is any mechanism for accountability towards the burden on the public exchequer. They appeared to have escaped easily as no overt act has been disclosed because of the large gatherings of the people and sometimes it is projected as an act of defence in the trial.

Court opined that petitioners should not be treated differently as equality and equal protection is the hallmark of the Constitutional vision.

However, Bench expressed serious concern on the role of such gatherings interfering with the carriage of the statutory duties by the Public Officers.

In view of the above discussion, anticipatory bail was allowed. [Ashish Singha, In re., 2021SCC OnLine Cal 2913, decided on 11-11-2021]


Advocates before the Court:

Mr Avinaba Patra, Advocate ……for the Petitioners

Mr Sudip Ghosh, Advocate

Mr Bitosok Banerjee, Advocate ……for the State

Case BriefsHigh Courts

Bombay High Court: While emphasizing the aspect of encroachment of public land, the Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., observed that,

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Aggrieved by the public notice issued by respondent 1 – the Slum Rehabilitation Authority, petitioners were to be rehabilitated being affected by Pune Metro Rail Project.

Petitioners contended that under the State’s policy, being slum dwellers, they have a status of being protected occupiers, who would be required to be rehabilitated by allotment of a free of cost permanent alternate accommodation in case land below the slum is sought to be utilized for public purpose.

Further, the petitioners contend that the slum dwellers society had opposed the passing of the Pune Metro through the slum land, so did the developers. They also suggested realignment of the metro track, however, sans success.

High Court noted that the petitioners who had initially encroached on the Government land and remained on the same for some time to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed within the vicinity.

Bench opined that any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies.

Violation of Public Trust Doctrine

Government on account of negligent approach by not protecting public lands from encroachment is later required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of taxpayers money.

Despite the might machinery, Government doesn’t protect its valuable land resulting into the grossest violation of public trust doctrine as a result of patent abuse of powers vested in such Government machinery is not protecting public property.

Accountability

Court added that it wonders as to whether at any point of time an audit in regard to encroached government land in State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and whether any steps to preserve the same have been taken – these are certain questions to be answered to “we the people” and accountability fixed for negligence.

Bench hoped that the Government awakens on such issues before it is too late and restores all the encroached Government lands for public benefit.

The above would certainly require a genuine political will and consciousness towards larger public benefit.

Coming to the present matter, High Court expressed that,

Mere right of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land.

 In the present matter, the petitioners were not denied the benefit of rehabilitation, infact they were called upon by several notices for allotment of premises, but they took an unreasonable adamant stand and refused the benefit.

Opining that the present petition was not filed bonafide, Court stated that the petition appeared to be a patent abuse of process of law.

While imposing costs of Rs 5,000 the petition was dismissed. [Abdul Majid Vakil Ahmad Patvekari v. Slum Rehabilitation Authority, WP No. 3983 of 2021, decided on 31-08-2021]


Advocates before the Court:

Mr. Nikhil Wadikar i/b. Mr. Rajesh Katore for the petitioners.
Mr. Deepak R. More for respondent no. 1.
Mr. B.V. Samant, AGP for the State.
Mr. S.K. Mishra, Senior Advocate a/w. Mr. Pralhad D. Paranjape and Mr. Kaustubh Deogade for respondent nos. 4 and 5.

Jammu and Kashmir and Ladakh High Court
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]