Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma CJ. and Sachin Shankar Magadum J. allowed the petition and quashed the orders passed by the State Govbernment dated 03-03-2017 and the order dated 28-08-2017 of Mysuru Mahanagara Palike.

The facts of the case are such that the 1st petitioner is an All India Trust and 2nd petitioner is the State level Trust, involved in the work of social economic upliftment of the people belonging to backward and downtrodden community having grievance that inspite of the order passed by the Hon’ble Supreme Court on 18-01-2013 in SLP No. 8519/2009 is being installed the statue of Sri Shivratri Rajendra Mahaswamy at Gun House Circle, which is on the main road. A request was made initially for installing the statue of Sri Srikantadatta Narasimha Wodeyar to the District Urban Development Cell and the same was rejected citing the judgment of the Supreme Court (supra) and yet the permission was granted to install the statue of Sri. Shivrathri Rajendra Swamiji.

The Court relied on the Supreme Court judgment which reads as under:

“….we direct that the status-quo as obtaining today, shall be maintained in all respects by all concerned with regard to the Triangle Island where statue of late Shri. N. Sundaran Nadar has been permitted to be sanctioned. We further direct that henceforth, State Government shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public street lights or construction relating to electrification, traffic, toll or for development and beautification of the streets, highways, roads etc. and relating to public utility and facilities.”

The Court thus observed that Supreme Court has categorically directed the State Governments not to grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places and therefore on account of the order passed by the Supreme Court, the question of permitting the State Government and Mysuru Mahanagar Palike to install the statue does not arise.

The Court thus held “neither the petitioners nor any one can install the statue on the island which is on the road (circle which is on the road) keeping in view the judgment delivered by the Supreme Court”

[Akhila Bharata Kshatriya Mahasabha v. State of Karnataka, Writ petition No. 49960 of 2017, decided on 07-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioners: Mr. Sampath and Mr. Puneeth K

For State: Mr. Vijayakumar A Patil For R 1

 Mr. Mohan Bhat for R2

 Mr. Vinayaka B. for impleading R3

 Mrs. Anjana C H for impleading R4

 Mr. Amrutesh N P for impleading R 5

 Mr. Sreenidhi V for respondents

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.

Case BriefsHigh Courts

Karnataka High Court: A Division bench comprising of Dinesh Maheswari and S.G. Pandit, JJ. while hearing a civil writ petition declined to exercise its jurisdiction under public interest litigation since the petition involved the determination of questions of fact.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to call for records pertaining to the case on hand and seeking a direction against the respondent State to clear the road by removing encroachments made on public roads.

The court, on the day of preliminary hearing, stated that it was not persuaded to entertain the present petition as a public interest litigation (PIL) because though the petition alleged several encroachments on public pathway and roads but none of the alleged encroachers had been impleaded as a party to the said petition, not even in a representative capacity. Further, it was noted that the matter involved questions of fact which could not be determined in the PIL jurisdiction of the Court.

With the aforesaid observations and noting, the court dismissed the present petition with a liberty to the petitioner to take recourse to appropriate remedies in accordance with law. [Chaitanya Mandal v. State of Karnataka,2018 SCC OnLine Kar 1755, decided on 23-10-2018]

Case BriefsHigh Courts

Allahabad High Court: Deciding on the matter of whether construction of a religious structure (Temple) and attempting to encroach upon the public land is a fundamental or legal right, the division bench comprising of Sudhir Agarwal and Rakesh Srivastava, JJ gave directions to the Uttar Pradesh Government and other officials, that no religious structure in any form, shall be allowed/ permitted to be raised on public roads and to remove any religious structure that were raised in public places from January, 2011 and to be shifted to Private Lands donated by beneficiaries.

The petitioners who were 19 in number filed an appeal stating that in the garb of constructing religious structures, like Temple, Mazar, Samadhi, Mosque, Gurudwara, Church etc., public roads (including highways), streets, pathways etc. are encroached upon, obstructing or creating hindrance in smooth movement of public including vehicular traffic. The Court observed that, “There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon. These unauthorized and illegal activities cause hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen has a fundamental right of movement and this cannot be allowed to be infringed by a few violators in public and apathy of State authorities.”

Therefore, the Court while disposing off the writ petition gave following directions:

  • Uttar Pradesh Government and other officials to ensure that no religious structure in any form, whatsoever, shall be allowed/ permitted to be raised on public road, street, pathway, lane etc. which is part and parcel of road etc. and belong to State.
  • If any such structure is existing and has been raised in the last five years, the same shall be removed forthwith and a compliance report shall be submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned department shall submit a comprehensive report to the Chief Secretary within next two months.
  • If any such religious structure has been raised encroaching upon public road (including highways), street, lane etc., before 01.01.2011, a Scheme shall be worked out and executed to shift the same to a private land offered by beneficiaries of such religious structures or persons responsible for its management or to remove it, within six months.
  • If any encroachment is made on roads, lane etc. after the judgment is passed on 10.06.2016 then the Deputy Collectors and Superintendent of Police of that area shall be responsible. The disobedience of the same shall be treated a deliberate and intentional disobedience to lower down authority of Court and would amount to criminal contempt.
  • District Magistrate directed to take immediate steps and take appropriate action within two weeks

 [Lavkush v. State of Uttar Pradesh,2016 SCC OnLine All 394 decided on 10.06.2016]