B.K. MUNIRAJU v. STATE OF KARNATAKA & ORS
CASE NO.: Appeal (civil) 1320 of 2008
DATE OF JUDGMENT: 15/02/2008
BENCH: Tarun Chatterjee & P. Sathasivam
We have already referred to the recitals in the document produced before the High Court which though titled as certificate of grant/Saguvali chit, various terms and conditions make it clear that the land was purchased by Motappa in a public auction on payment of a price for Rs.408.12. In addition, the two authorities as well as the High Court adverted to the revenue extract and concluded that it was not a "granted land" and it was purchased in a public auction on payment of a price. In the light of the factual conclusion, we are satisfied that the High Court has rightly refused to quash the orders of the said authorities and dismissed the writ petition. If the factual finding that the subject-matter of the land was a "granted land" undoubtedly it attracts bar under Section 4 of the Act and follow the conditions as stated in Rule 43 (1) (5) and (8). (17)
The document in question which is filed as Annexure P-3, has been styled or titled as "Certificate of Grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible : the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases i.e. Vidhyadhar vs. Manikrao & Anr., (1999) 3 SCC 573, Subbegowda (Dead) by LR. vs. Thimmegowda (Dead) by LRs., (2004) 9 SCC 734 and Bishwanath Prasad Singh vs. Rajendra Prasad & Anr., (2006) 4 SCC 432.
BHADRAPPA (D) BY LRS. v. TOLACHA NAIK
CASE NO.: Appeal (civil) 7782 of 2001
DATE OF JUDGMENT: 08/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM
In Guntaiah and Ors. v. Hambamma and Ors. (2005 (6) SCC 228 at para 14) it was noted as follows: "It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third-party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware of the condition.
When Act 2 of 1979 was challenged, this Court observed in Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17) "17.Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)( f ) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
KALIYAMMA & ORS. v. DEPUTY COMMNR.CHITRADURGA DISTT. & ORS.
CASE NO.: Appeal (civil) 7875-7876 of 2001
DATE OF JUDGMENT: 03/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM
The Assistant Commissioner came to hold that when the grant was in favour of general category, the allotment was in Form-I and when it is in the name of persons belonging to the Schedule Castes and Schedule Tribes, it is in Form II.
Legal representatives of the grantee filed appeal under Section 5A of the Act before the Deputy Commissioner. The said Authority allowed the appeal and set aside the order of the Assistant Commissioner holding that in these cases grant has been made during 1957 under the Land Revenue Code and the right of possession in respect of the grantee is limited. It was noticed that there was a condition not to alienate the land in question for a period of 10 years. In these cases the alienation took place much before completion of the ten years' period. Since the land was alienated during the non-alienable period, the land vested with the Government. It was also noticed that the period would be 30 years (for adverse possession) and not 12 years as contented.
The matter was challenged by the appellants before the learned Single Judge who dismissed the writ petition but inter alia directed as follows: "Whether respondents 2 & 3 have been the legal heirs of the grantee either as sons or adopted sons or in any manner under the law. That question has yet to be decided by the Assistant Commissioner when he has to restore the land to the grantee or his heirs in pursuance of the appellate order. Before actual delivering and restoring possession, the Assistant Commissioner should examine this question and if grantee or heirs are found in possession, the possession has to be restored to them. But if it is not practicable and possible to restore possession of the granted land to the grantee or his heirs under Section 5(1)(b) later part will automatically stand vested in the Government."
MANCHEGOWDA ETC. v. STATE OF KARNATAKA ETC.PETITIONER: MANCHEGOWDA ETC.
DATE OF JUDGMENT17/04/1984
AIR 1984 SC 1151
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, Sections 4 & 5, constitutional validity-Whether the prohibition of transfer of granted lands and Resumption or restitution thereof without payment of compensation or providing any appeal for such orders of resumption violates Art. 19 (1) (f), 31 and 31A of the Constitution-Whether making such special provisions only with regard to Scheduled Castes and Scheduled Tribes to the exclusion of persons belonging to other communities, violated Art. 14 of the Constitution.
The High Court of Karnataka for reasons recorded as quoted below in the Judgment upheld the validity of the Act and dismissed the petitions.
Sections 4 & 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfers of Certain Lands) Act, 1978 is constitutionally valid.
However, the provisions of the Act must be read down and held that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition of transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted land having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. S. 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act.
The provisions of the Act make this position clear, as ss. 4 & 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition of such lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. the provisions of appeal has been incorporated by the Amending Act which received the assent of the Governor on the 29th February, 1984 and first came to be published in the Karnataka Gazette Extraordinary on the 3rd day of March, 1984, the Deputy Commissioner to whom the appeal will be presented will no doubt take this fact into consideration in deciding the question of limitation in regard to any appeal which may be filed against an order of the Assistant Commissioner; if any appeal is preferred within a period of three months from the date the amended provision conferring the right of appeal came into force, the Deputy Commissioner taking into consideration the fact that a period of three months has been prescribed for preferring an appeal from the date of the order of the Assistant Commissioner, may have no difficulty in entertaining the appeal by condoning the deal under s. 5 of the Limitation Act in terms of the power conferred on the Deputy Commissioner under the said s. 5A, provided the Deputy Commissioner is satisfied that the appeal is otherwise maintainable and the interest of justice requires that the appeal should be entertained and not be thrown out on the ground of limitation.
It is no doubt true that before the passing of the present Act any transfer of granted land in breach of the condition relating to prohibition on such transfer would not have the effect of rendering the transfer void and would make any such transfer only voidable. But the State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interest of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.
In pursuance of this policy, the legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even under the Contract Act, any Contract which is opposed to public policy is rendered void.
Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process of law is bound to take time. Any negligence and dealy on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed.
As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void in providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes.
Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land, and they cannot be considered to be a bona fide purchaser for value; and every such transferee acquires to his knowledge only avoidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedies and cheaper method or recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law.
The position will, however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant of any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms or the grant or any law regulating such grant has perfected his title by prescription of time or otherwise.
But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of the possession of such granted land on the basis of the provisions contained in ss. 4 & 5 of the Act cannot be said to be constitutionally invalid and such provision cannot be termed as unconscionable, unjust and arbitrary.
Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding or property within the meaning of Art. 19 (1) (f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. The prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Persons belonging to scheduled castes and scheduled tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of bona fide the said plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.
The transferees of the granted lands from the original grantees, acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only avoidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Art. 19 (1) (f) of the Constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. Further in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period the benefits of lands transferred to them before the lands could be recovered from them Art. 19 (1) (f), therefore, did not invalidate s. 4 of the Act.
The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. This kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in art. 31 and 31A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition prohibition relating to such transfer, the object of such grant and the terms therefore, also the law governing such grants and the object and the scheme of the presents Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Art. 31 and 31A of the Constitution. With the enactment of the Act, the, voidable right or title of the transferee in the grant lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in ss. 4 & 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. As soon as such transferees are rendered void by virtue of the provisions of the Act transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Art. 31A cannot be applied. Therefore, there is no infringement of Arts. 31 & 31A of the Constitution.
The special provisions made for the resumption of granted lands originally granted to the members of Scheduled Castes and Scheduled Tribes and resoration of the same to the original grantees or their heirs and legal representatives and falling them to other members of these communities do not infringe Art. 14 of the Constitution. This Act has undoubtedly been passed for the benefit of members of the Scheduled Castes and Scheduled Tribes who are recognised as backward citizens and weaker sections in the country. There cannot be any manner of doubt that persons belonging to Scheduled Castes and Scheduled Tribes can be considered to be separate and distinct classes particularly in the matter of preservation and protection of their economic and educational interests. In view of the peculiar plight of these two classes, the Constitution in Art. 15 (4) makes specific mention of these two classes and in Art.16 (4) speaks of backward class of citizens. One of the directive principles as contained in Art. 46 of the Constitution enjoins that "the State shall promote with special care and educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation." The object of this Act is to protect and preserve the economic interests of persons belonging to Schedule Castes and Scheduled Tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved.
SC BY UPHOLDING AND QUOTING ABOVE OBSERVATIONS STATED FURTHER THAT :-
Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land. Anybody who acquires such granted land in contravention of the prohibition relating to transfer of such granted land cannot be considered to be a bona fide purchaser for value and every such transferee acquires to his knowledge only a voidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedier and cheaper method of recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot, in our opinion, be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law. The position will however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant or any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms of the grant or any law regulating such grant has perfected his title by prescription of time or otherwise. We shall consider such cases later on. But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land, on the basis of the provisions contained in s. 4 and s. 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary.
Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Art. 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to scheduled castes and scheduled tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.
Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as ss. 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by proscription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted loads has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period; the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. S. 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act.
K.T. HUCHEGOWDA v. DEPUTY COMMISSIONERPETITIONER: K.T. HUCHEGOWDA
DATE OF JUDGMENT18/03/1994
BENCH: SINGH N.P. (J), AHMADI, A.M. (J), YOGESHWAR DAYAL (J)
1994 SCC (3) 536
On a plain reading, granted land will mean, any land granted by the Government to a person, who is a member of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of different types; it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of the Limitation Act, in respect of extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains with the State Government, then to extinguish the title that has remained of the State Government by adverse possession, by a transferee on the basis of an alienation made in his favour by an allottee, the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from being dispossessed from the lands which belong to them and of which they are absolute owners, for purpose of extinguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.
There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajayalakshmi v. State of Karnataka' said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years, so far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the grant, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years.
When this Court said in its main judgment, in the case of Manchegowda v. State of Karnataka2 that in cases where granted lands had been transferred before the commencement of the Act in violation of the condition, regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title, in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, has to be read, for purpose, of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years.
Court has to examine the claim made by the appellant on the materials produced in support of the said claim, especially the deed of grant in favour of the original grantee, for the purpose of recording a finding as to whether the grant was in the nature of absolute transfer of the title of the State Government in favour of the grantee or it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government.
It need not be pointed out that any claim made on behalf of the appellant, that the grant by the State Government in favour of the original grantee was in the nature of absolute grant, reserving no right, title and interest and that transferee has perfected his title by continuous and adverse possession over such transferred land, shall be examined taking into consideration, as to whether the appellant had raised this question at the earliest opportunity i.e. before the Assistant Commissioner and what material had been produced by the appellant before the Assistant Commissioner in support of such claim. It need not be impressed that the object and the scheme of the Act is to protect the interest of the members of the Scheduled Castes and Scheduled Tribes, who shall be deemed to be a weaker section of our community and the transfer in favour of the appellant admittedly being in contravention of the terms of the grant in favour of the original grantee, heavy onus rests on the appellant, to show to the court that by his continuous and adverse possession, the right, title and interest of the grantee has been extinguished before the commencement of the Act.
OBSERVATIONS OF COURT’S REGARDING SC/ST PTCL ACT CASES
PLANNED DEVELOPMENT OF ALL CITIES STRESSED BY SUPREME COURT
in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It
can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."
WHEN ASSISTANT COMMISSIONER COMES ACROSS ILLEGAL TRANSACTIONS THROUGH ANY NEWS PAPER REPORTS OPTIONS LEFT
1. The Assistant Commissioner exercises his powers under the chapter III of The Karnataka Land Revenue Act 1964 regarding any appeals, revision and review. As per Hon’ble High Court of Karnataka’s Decision in R.C.Puttaiah v/s The Deputy Commissioner & others Reported in 1989(2) Kar LJ page 9 “ Assistant Commissioner has no power to review his own order” The same view was expressed by Hon’ble High Court of Karnataka’s Decision in the case of M.Narayanappa v/s Hemavathi reported in ILR 1987 KAR page 715.
2. The powers under Section 83 of The Karnataka Land Reforms Act 1961 does not confer powers on Assistant Commissioner to withdraw his earlier order.
3. Under Section 83 of The Karnataka Land Reforms Act 1961 if any illegal transaction comes to the notice of Assistant Commissioner following procedure has to be adopted.
• He has to make summary enquiry
• He has to insist upon land owner to file Form 12 and cross verify the declaration made through concerned Tahsildar.
• Assistant Commissioner has to seek preliminary report from Tahsildar, copy of such report has to be served to land owner to file his objections over the report and then only decision of action under section 83 can be made.
• Under Section 66(2) of The Karnataka Land Reforms Act 1961 Tahsildar is only having powers to issue notice to furnish declaration to any person having excess land beyond ceiling limit.
• Assistant Commissioner can direct concerned Tahsildar to issue notice to concerned person and seek declaration from the person about his land holdings if he becomes aware of illegal transaction.
4. As decided by Karnataka High Court in the case of D.S.Shamala v/s Assistant Commissioner Karnataka reported in 1978(1) Kar.LJ page 472 “The Assistant Commissioner has no jurisdiction to invalidate sale transactions under section 83 before any action is taken by the Tahsildar under section 66-A of the The Karnataka Land Reforms Act 1961”
5. The only legal options left out for an Assistant Commissioner who comes to know about his illegality in orders previously made are:
• He has to file criminal case against persons who filed false affidavits before his court.
• He has to report matter to the Deputy Commissioner, if he has any legally valid defense about his conduct in such proceedings as alleged in news papers reports.
• He should have records before him to send any report or to take any action on the false declarations.
• If the records were seized by the Deputy Commissioner, AC cannot proceed further to pass any orders without perusing records.
• At most he has to summon all records related to concerned cases from lower authorities who changed khatha based on his orders and collect fresh evidence if any to make report to the immediate superior. To do so he has to follow procedure asking Tahsildar to submit his report after issuing notice Under Section 66(2) of The Karnataka Land Reforms Act 1961
6. Under Section 83 of The Karnataka Land Reforms Act 1961 AC can only initiate inquiry regarding illegal transaction. To conclude a transaction to be illegal following records need to be summoned:
• J slip of illegal transactions.
• List of illegal land extent and along with RTC and Mutations.
• Report of Tahsildar
• Declaration of Land Holder under Form-12
7. News paper Report is not having any evidenciary value to take any final action based on it, only thing is to initiate action under Section 66(2) of The Karnataka Land Reforms Act 1961, based on such reports and summoned documents notice has to be given to land holder and furnish report copy and seek his explanation to make decision under Section 83 of The Karnataka Land Reforms Act 1961
Hawkers or Foot path vendors Rights and duties - Supreme court
1. In the case of Bombay Hawkers' Union v. Bombay Municipal Corporation. AIR 1985 SC 1206. the Supreme Court held that "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets properly so-called".
2. In the case of Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the Supreme Court held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In this case the Supreme Court also observed that "...............In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets". The Supreme Court was also dismissing misplaced arguments resting on life and liberty by those who were claiming occupation of public streets. In this regard, the Supreme Court observed that ".....There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter".
3. Constitutional Bench judgment Sodhan Singh v. New Delhi Municipal Committee (AIR 1989 SC 1988) has laid down that “poverty cannot be the reason to permit encroachments on public lands/roads”. “Street trading-An age old vocation adopted by human beings to earn living--No justification to deny citizens right to earn livelihood using public streets for trade or business--Regulatory measures and reasonable restrictions can be imposed”. “A member of the public is entitled to legitimate user of the road other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences”. “ What will constitute public nuisance and what can 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. This has to be judged objectively and here comes the role of public authorities”. “The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads--to facilitate traffic--may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19”. “The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application. The provisions of the Municipal Acts should be construed in the light of the above proposition and they should receive a beneficent interpretation”. “The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place, as circumstances are likely to change from time to time. But that does not mean that the licence has to be granted on a daily basis; that arrangement cannot be convenient to anybody, except in special circumstances”. “Some of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods, sometimes imported or smuggled. The authorities will be fully justified to deny to such hawkers any facility. They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business. Attempt should be made to make the scheme comprehensive, dealing with every relevant aspect, for example, the charges to be levied, the procedure for grant and revocation of the licences, etc”. “Street trading is an age-old vocation adopted by human beings to earn living. It is one of the traditionally recognised business or trade in England. This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be driven to street trading out of poverty or unemployment. On the other hand, abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading”.
4. Those observations of Hon'ble Apex Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (Judgement dated 12-02-2007) The restrictions/conditions on which the hawkers shall do the business are :
(1) an area of 1 mtr x 1 mtr on one side of the footpath wherever they exist or on an extreme side of the carriage way, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We further clarify that even where hawking is permitted, it can only be on one side of the footpath or road and under no circumstances on both sides of the footpaths or roads. We however clarify that Aarey/Sarita stalls and sugar cane vendors would require and may be permitted an area of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;
(2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure. They should also not use handcarts. However they may protect their goods from the sun, rain or wind. Obviously this condition would not apply to Aarey/sarita stalls;
(3) There should be no hawking within 100 meters from any place of worship, holy shrine, educational institutions and hospitals or within 150 meters from any municipal or other markets or from any railway station. There should be no hawking on foot-bridges and over-bridges. Further certain areas may be required to be kept free of hawkers for security reasons. However outside places of worship hawkers can be permitted to sell items required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc.;
(4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers;
(5) They can only sell cooked foods, cut fruits juices and the like. We are unable to accept submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic. All municipal licensing regulations and the provisions of the Prevention of Food Adulteration Act must be complied with;
(6) Hawking must be only between 7.00 am and 10.00 pm;
(7) Hawking will be on the basis of payment of a prescribed fee to be fixed by BMC. However the payment of prescribed fee shall not be deemed to authorize the hawker to do his business beyond prescribed hours and would not confer on the hawker the right to do business at any particular place;
(8) The hawkers must extend full co-operation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work. They must also co-operate with the other Government and public agencies such as Best undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay any cable or any development work;
(9) No hawking would be permitted on any street which is less than 8 meters in width. Further the hawkers also have to comply with Development Control Rules thus there can be no hawking in a areas which are exclusively residential and where trading and commercial activity is prohibited. Thus hawking cannot be permitted on roads and pavements which do not have a shopping line;
(10) BMC shall grant licences which will have photos of the hawkers on them. The licence must be displayed, at all times, by the hawkers on their person by clipping it on to their shirt or coat;
(11) Not more than one member of a family must be given a licence to hawk. For this purpose BMC will have to computerize its records;
(12) Vending of costly items e.g. electrical appliances, video and audio tapes and cassettes, cameras, phones etc. are to be prohibited. In the event of any hawker found to be selling such items his licence must be cancelled forthwith.
(13) In areas other than the Non-Hawking Zones, licences must be granted to the hawkers to do their business on payment of the prescribed fee. The licences must be for a period of 1 year. That will be without prejudice to the right of the Committee to extend the limits of the Non-Hawking Zones in the interests of public health, sanitation, safety, public convenience and the like. Hawking licences should not be refused in the Hawking Zones except for good reasons. The discretion not to grant a hawking licence in the Hawking Zone should be exercised reasonably and in public interest.
(14) In future, before making any alteration in the scheme, the Commissioner should place the matter before the Committee who shall take a decision after considering views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public.
(15) It is expected that citizens and shopkeepers shall participate in keeping non-hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the concerned ward officer the presence of a hawker in a non hawking zone/area. The concerned ward officer shall take immediate steps to remove such a hawker. In case the ward officer takes no action a written complaint may be filed by the citizen/shopkeeper to the Committee. The Committee shall look into the complaint and if found correct the Committee will with the help of police remove the hawker. The officer in charge of the concerned police station is directed to give prompt and immediate assistance to the Committee. In the event of the Committee finding the complaint to be correct it shall so record. On the Committee so recording an adverse remark re failure to perform his duty will be entered in the confidential record of the concerned ward officer. If more than three such entries are found in the record of an officer it would be a ground for withholding promotion. If more than 6 such entries are found in the records of an officer it shall be a ground for termination of service. For the work of attending to such complaints BMC shall pay to the Chairman a fixed honorarium of Rupees 10,000/- p.m.
(16) The scheme framed by us will have a binding effect on all concerned. Thus apart from those to whom licenses will now be issued, no other person/body will have any right to squat or carry on any hawking or other business on the roads/streets. We direct the BMC shall bring this judgment to the notice of all Courts in which matters are now pending. We are quite sure that the concerned Court/s shall then suitably vacate/modify its injunction/stay order."
Municipal property, Roads and its encroachments and public rights- Supreme court
1. More than a century ago in Attorney General v. Corporation of Sunder Land, 1875-76(2) Ch.D 634, the position of the municipal authorities with regard to public parks, gardens, squares and streets was put at par with a trustee, and it was held that the municipal authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the relevant statute
2. Supreme Court of India in K.R. Shenoy v Udipi Municipality, AIR 1974 SC 2177. In the above case, the Municipality of Udipi had granted permission for construction of Cinema Hall in a place which was reserved for residential purposes. This action of the Municipality was struck down by observing that the Municipal authorities are supposed to enforce a scheme and not to act in breach thereof. It would be apt to quote what was said by the Supreme Court :- "Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within its limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the like of its authority and infringes or violates the rights of others, it becomes like all other of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative."
3. The same concern was shown by the Supreme Court of India in Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902. In this case action of the local authority which was destructive of environment was set at naught.
4. The decisions given by the Supreme Court of India be also noticed. In Municipality v. Mahadeoji, AIR 1965 SC 1147 it observed that inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. It was observed : "The width of the highway so dedicated depends upon the extent of the user. The side land are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user." In Manglore Municipality v. Mahadeoji, AIR 1965 SC 1147, it was observed that :- "Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user."
5. State of U. P. v. Ata Mohd., AIR 1980 SC 1785, it was held that street would vest in the Corporation only qua the street and not as absolute property. What is vested in the Municipality is not general property or a species of property known to the common law but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the Street as a street and not for any other purpose. Not only pavements but verandahs in front of the shops are part of streets and public streets. State of U. P. v. Ata Mohd.. AIR 1980 SC 1785. The Supreme Court held if the municipality put the street to any other user than that for which, it was intended, the State as its owner, was entitled to intervene and maintain an action to get any person in illegal occupation evicted.
6. Supreme Court in the case of M/s Gobind Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313. In this case verandahs in Connaught Circus in New Delhi were held to be part of public streets. In para 12 of the judgment it was observed as under : "We see no ground to differ with the concurrent findings of the Court below and hold that the appellant has dedicated the Verandah in dispute to the public-use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of section 3(13)(a) of the Act. The appellant has thus surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner has no right at all times to prevent the public from using the same. When the owner of the . property has, by his own violation permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made "public street" under section 17(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the committee to step in and exercise its powers under section 17(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street" for the better enjoyment of the public right in the said street. We hold that when a "street" is declared as "public street" the owner of the property comprising the said "street", has no right to claim compensation."
7. In another case, the Zoning Authority had prevented the spread of a commercial venture as a hotel in and around a lake in the State of Tamilnadu. The local administration did not permit it. The Chief Minister interfered with the local self-government in the district. The Supreme Court was not appreciative of the fact that in such matters of discipline in urban construction and environment protection instructions should be given from the top which result in for violation of planned urban habitats. Pleasant Stay Hotel v. Pilani Conservation Council. 1995 (6) SCC 127.
8. In the case of Delhi Municipal Corporation v. Gumam Kaur, AIR 1989 SC 38, the Supreme Court reiterated the law that to remove an encroachment of a public road is the obligation of a municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the use of the pedestrians.
9. In the case of Ahmedabad Municipal Corporation v. D. Balwantsingh. JT 1992 (2) SC 363, the Supreme Court negatived the plea of an occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. The Supreme Court reiterated its earlier decisions. Removal of encroachment was upheld ; so was the action of the municipal corporation to shift the hawkers to an alternate site.
10. In the case of Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313, the Supreme, Court extended the public street into the verandhas in front of a shop which by long user had been used by the public as a passage. Thus, shopping arcades or verandhas adjoining public streets were given the declaration of a public street. Encroachment of such verandhas in front of public streets was held as illegal.
11. Case of Dr. G.N. Khajuria and Ors. Appellants v. Delhi Development Authority and Ors. AIR 1996 SC 253 In paragraph 10, Hon'ble Apex Court observes: --Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the Officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the Officer which lies at the root of the unlawful act of the concerned citizen, because of which the Officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the Officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts other to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.
12. In Municipal Committee, Karnal, Appellant v. Nirmala Devi , Hon'ble Apex Court has considered encroachment on public street and has held that Municipal Committee had power to have said unauthorised encroachment and construction removed and to recover the costs thereof from such encroacher. Thereby, the Municipal Committee has necessary power to have the unauthorised construction removed and encroacher ejected. If the encroacher does not voluntarily remove the unauthorised construction, the Municipal Committee has power to have it removed by exercise of the power vested under Section 181(2) of the Act. Since the Committee has exercised the statutory power, the award of damages is clearly illegal, unwarranted and unsustainable.
13. In case of Cantorment Board, Jabalpur v. S.N. Awasthi reported at 1995 Supp (4) SCC 595, Hon'ble Apex Court has in paragraph 5 held that construction made in contravention of law cannot be a premium to extend equity so as to facilitate violation of mandatory requirements of law and High Court was not justified in extending equity on this ground.
14. In Debashis Roy v. Calcutta Municipal Corporation reported at 2005 (12) SCC 317, Hon'ble Apex Court has held that the issue about legality or otherwise of conversion of user of parking space in residential area for commercial purposes permitted by Municipal Corporation was not a dispute between private parties and essentially involved an element of public interest.
15. In M.I. Builders v. Radhey Shyam Sahu Hon'ble Apex Court 1996(6) SCC 464 has observed that any commercial activity in unauthorised constructions puts additional burden on locality and it is the primary concern of Court to eliminate the negative impact which it will have on environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting such complex. It is also observed that while directing demolition of unauthorised construction, the Court should also direct an inquiry as to how the unauthorised construction came about and to bring the offenders to book and it is not enough to order demolition only.
16. Observations of Hon'ble Apex Court in M.C. Mehtav. U.O.I. 2006(2) SCALE 364 Judgement dated 16-02-2006, reveal that user, commercial residential is very relevant and occupation load has large impact on various facilities including water, sanitation and drainage. Master plans are prepared to take care of future needs by experts after looking into various aspects like healthy living, environment, Lung space need, land use intensity, areas where residential houses are to be built and were commercial buildings are to be located, need of household industries etc.. Hon'ble Apex Court has also observed that though task of implementation may be difficult, the Court cannot remain the mute spectator when the violations also affect the environment and healthy living of law abiders. The enormity of the problem cannot be a deterrent factor in this respect. It is observed that various laws are enacted, master plans are prepare by expert planners, provision is made in the plans also to tackle the problem of existing unauthorised constructions and misusers and, still such illegal activities go on unabated openly under the gaze of everyone without having any respect and regard for law and other citizens. Hon'ble Court has also observed that laws are not enforced and the orders of the Court are not properly implemented resulting into total lawlessness. It has observed that therefore it is necessary to identify and take appropriate action against officers responsible for this state of affairs because such blatant misuse of properties at large-scale do not take place without connivance of concerned officers. Hon'ble Court therefore found it proper to constitute a Monitoring Committee and the issue of accountability of officers and also the exact manner of applicability of "Polluters Pay Principle" to owners and officers could be taken up after misuser is stopped at least on main roads in New Delhi. The Hon'ble Apex Court has thereafter in last paragraph issue directions about giving of individual notices for stopping of misuser, filing of affidavit to that effect by owners and sealing of premises in default.
17. Hon'ble Apex Court in case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan Judgement dated 11-10-1996.It is observed as follows:
“It is apparent that plaintiff or applicant who wants his encroachments on Public Road to be protected by any interim order has to satisfy the court about existence of any legal right in his favour to maintain such encroachment during pendency of suit and for that purpose, he has to point out some title in him authorising him to occupy the portion of public Road or footpath etc.. In the absence of any such legal right, the encroacher cannot be permitted to obstruct the free flow of traffic or cause inconvenience to public at large. Mere long possession or user cannot be an answer to tilt the balance in his favour when in other pan of balance, the Court has to weigh interest of public at large. Even the threat of loosing source of livelihood cannot be, by itself a circumstance in favour of such applicant. He encroached upon public road or footpath knowing fully well that nobody can clothe him with authority to occupy and use it for his private gain. He cannot feign ignorance of provisions of Law and try to raise equity in his favour. Court of Law cannot permit such wrongdoer to continue to injure public at large during pendency of suit. Hence, his plaint itself must contain sufficient material and facts to satisfy the court that the convenience & interest of public at large must suffer because of legal right in his favour, which will be a very rare case”.
”Encroachment of public property undoubtedly obstructs and upsets planned development, echology and sanitation. Public property needs to be preserved and protected. It is but the duty of the State and local bodies to ensure the same. This would answer the second question. As regards the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when the he approaches the Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief. In that behalf, it is the salutary duty of the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached the Court would be no ground to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to abuse the judicial process is untenable. As held earlier, if the appellant-Corporation or any local body or the State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as a inbuilt fair procedure would be obviated. But if they allow the encroachers to remain in settled possession sufficiently for long time, which would be a fact to be established in an appropriate case, necessarily suitable procedure would be required to be adopted to meet the fact situation and that, therefore, it would be for the respondent concerned and also for the petitioner to establish the respective claims and it is for the Court to consider as to what would be the appropriate procedure required to be adopted in the given facts and circumstances”.
“It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate to the facts of the case. Normally, the Court suitable to the facts of the case. Normally, the Court may not, as a rule, directs that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case required examination and suitable direction appropriate to the facts requires modulation”.
18. Syed Muzaffar Ali v. Municipal Corporation of Delhi reported at 1995 Supp (4) SCC 426 shows that Hon Apex Court has observed that mere departure from the authorised plan or putting up the construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of structure. Some cases may be amenable to compounding while the other cases of grave & serious breaches of licensing provisions or building regulations may warrant demolition. Therefore the burden is entirely upon plaintiff or applicant to satisfy the court with material as mentioned above or other relevant material to show that his structure does not violate zoning regulations or development control rules or building bylaws. If after considering such material and after considering the provisions of relevant Law, the Court is satisfied that the unauthorised structure forming subject matter of suit before it can be compounded legally, it can proceed to grant temporary injunction.
19. Bombay High Court in case of Vinayak S Bhapat Vs SP Chandrapur (AIR 2005 Bom R 328) has quoted the Judgement of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported at 1993(3) SCC 161 the Hon'ble Apex Court has considered the issue of grant of temporary injunction in detail from paragraph 30 onwards. The observations made also show that such plaintiff is interested only in getting an order of interim injunction and Hon'ble Apex Court has pointed out that normally such relief is not to be granted without issuing notice to the other side. Hon'ble Apex Court has observed that on many occasions even public interest suffers because of such interim orders. In view of these detail observations of Hon'ble Apex Court, it is not necessary for us to repeat the same again here. However, we have pointed out some of the circumstances which may be relevant for trial court to find out whether applicant has approached it with clean hands and whether there exists any prima facie case in his favour. The encroacher or person who has raised unauthorised structure wants to perpetuate his illegality or irregularity as long as possible and for that purpose wants to engage himself in long drawn legal battle. If in such situation any officer of sanctioning authority who has to defend the action of local body before Court is acting in collusion with such applicant, the local body may avoid to file reply or avoid to defend itself effectively and take adjournments. In that event, the proceedings in court can easily be delayed by applicant and he can continue to enjoy the shelter of interim order. The local body or executive can thereafter defend its inaction by pointing out such pendency in Court as is being done before us. The Court granting such temporary injunction therefore cannot forget its role as custodian and guardian of public interest and it has to safeguard such larger interest independently. Hence, if such temporary injunctions are granted, Court granting it must fix an outer limit beyond which it will not operate. Not only this, if it finds that local body/authority is not co-operating in the matter, it can record an order to that effect and impose heavy costs upon such local authority or officer prima facie found guilty in the matter. In appropriate cases, it can also direct that such costs should be recovered from the officer concerned personally and it can also proceed in contempt against such body or officer. Simultaneously it can also forward copy of its order to concerned Collector or R.D.M.A.for initiation of disciplinary proceedings against such person. If such order is received by Collector or R.D.M.A., the latter shall be under obligation to immediately proceed departmentally against the officer named in the order. The steps about asking the applicant/plaintiff to submit his actual plan for consideration of sanctioning authority as suggested above, in the meanwhile, will also subserve the ends of justice. The advocates appearing for contesting parties before such Court must also ensure that no blame for long pendency can be put upon Court and no adjournment should be asked on the ground of nonavailability of advocate by party in whose favour interim order is operating. No doubt, the subordinate Court has got discretion in the matter of grant of adjournment, however, it has to be conscious of abuse of its process by colluding parties or by influential party and take all precautions to curb or avoid it. The guiding factors mentioned above, if followed, will definitely help the subordinate Court in achieving this goal.