Gian Chand vs State of J. and K. and Others

T.S. Doabia, J.—The psyche of a person in possession over public land is the same all over the country. The city of Jammu can be no

exception. The psyche is to perpetuate possession as long as possible. A person in possession of some areas abutting on a public street makes an

all out effort to occupy as much area as possible of that portion which is part of public street. First an over head projection is built. Then there is an

aggressive effort to occupy the land under the projection. The goods meant for sale arc displayed on pavement leaving no space for a pedestrian to

move on pavements. The situation in this petition is not different.

The facts in brief are as under :--

The petitioner submits that he is engaged in the business of steel works. Hardware Store and Welding fabrication in an establishment said to be

situated at Jewal Chowk/B. C. Road, Jammu. Eleven rooms as per the petitioner stand constructed. The covered area is said to be 2747 square

feet. This is comprised in Khasra No. 273 Min. The possession is said to be more than 30 years old. This has been described as peaceful. The

petitioner has not indicated the source from which he derived his possessory rights. He claims regularisation of possession in pursuance of

Government order No. Rev (NDJ) 46 of 1973. This is dated 28th of January, 1973. Reliance in this regard is placed on a communication

addressed by Assistant Commissioner, Nazool, Jammu to Director Land Measurement Jammu. No objection certificate was sought. Thus no

objection certificate has not been issued so far. Regularisation of possession is sought. Some instances have been cited in para 14 of the petition in

which possessions have been regularised.

The respondents have filed reply. It is stated that the land has come under a fly over. The possession of the petitioner has been denied. It is

further stated that communication seeking no objection certificate is with regard to different land. The specific plea taken is that land measuring

2747 square feet has come under the fly over. It is broadly on these plea rejection of the petition is sought.

The questions which require consideration are:--

(i) Whether the municipal authorities owe an obligation to the citizens of this country to see that the public property is not permitted to be

encroached upon?

(ii) Whether the piece of land on which permission is being claimed is part of public street?

(iii) To what use public streets can be put?

(iv) Whether any civil or criminal liability is incurred when public streets are encroached upon?

By now it is well settled that the municipal authorities are in the position of trustees. They have to deal with the property with the same care with

which a trustee is supposed to deal with a trust property. Some of the decisions which deal with this obligation of the municipal authorities be

noticed.

More than a century ago in Attorney General v. Corporation of Sunder Land 1875(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 municipal authorities would be guilty of

breach of trust in employing any part thereof for purposes other than those contemplated by the relevant statute. Still later in Maddison v. Alderson

(1883) 8 App 467 : 52 LJ QB 737, it was observed that an excess of statutory power cannot be validated by acquiescence in or by the operation

of estoppel and the Court would decline to interfere for the assistance of persons who seek its aid to relieve them against express statutory

provision. It was further observed that Courts would not permit the statute to he made an instrument of fraud. The U.S. Supreme Court in Samuel

Berman v. Andrew Parker. (1945) 99 Law Ed 27 : 348 US 26, expressed a view that the concept of the public welfare is broad and inclusive.

The same Court in Village of Belle Terre v. Bruce Borass, (1978) 39 Law Ed 797 : 416 US 1 and again in Agins v. City of Tiburaon, (1980) 447

(US) 255, expressed similar views. The regulations which prohibited conversion of open space land and thereby protecting against the resultant

impacts such as pollution, destruction of scenic beauty, disturbance of the ecology and the environment, hazards related to ecology, fire and flood

and other demonstrated consequences of urban sprawl, were upheld. It was held that the States's :--

Effort to discourage the unnecessary conversion of open-space land is to be appreciated. Specific zoning regulations at issue were held to be

exercises of the State police power to protect the citizens from the ill-effects of urbanization.

What was sought to be projected in the above cases was reiterated by the Supreme Court of India in Shri K. Ramadas Shenoy Vs. The Chief

Officers, Town Municipal Council, Udipi and Others, . In the above case, the Municipality of Upidi 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 (at page 2181):--

.... 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 hut it is usurping powers which it docs not possess. The right to build on his own land is a right incidential 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 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.

The same concern was shown by the Supreme Court of India in Bangalore Medical Trust Vs. B.S. Muddappa and others, In this case action of

the local authority which was destructive of environment was set at naught.

Therefore it can be said that the Municipal authorities and other authorities dealing with development of Towns have no right to permit user of

public streets. They are mere trustees. If the authorities act to the contrary, they violate the trust reposed in them.

The second question be now examined. This is as to what is meant by street and public street and as to whether foot-paths are also covered by

the term. If the definition of the street and public street as found in the Jammu and Kashmir Municipal Act, 2008 EK. (here-in-after referred as the

Act), is perused then it would become apparent that even private property can be part of the street.

In Halsbury's Laws of England, 4th Edition, page 53. 72, (here-in-after referred to as ""Halsbury"") this concept is dealt with. It has been

observed as under :--

The fact that a way has been used by the public is evidence from which a dedication may be inferred if the way has been used for so long and in

such circumstances that the proper inference is that the owner of the soil had said, or so conducted himself as to imply, that he had granted the right

of passage to the public.

At page 55 paragraphs 75-76 of Halsbury it has been stressed that ""this user should be open"". Again, at page 73 paragraph 103, of above

treatise it has been indicated that ""all highways vest in the authority which is for the time being constituted to look after these"". The relevant portions

be noticed as under :--

The extent of the acquiescence is also a material question, and to carry and weight the user must be open and unconcealed.

Page-55 :

In order to infer a dedication, user of a way by the public must be as of right. Members of the public enjoy a way as of right where they use it

believing themselves to be exercising a public right. User as of right is actual enjoyment which is open, not by force and not by permission given

from time to lime ...... an inference of dedication may be drawn if a landowner allows a certain class of persons, and no other, to use a way and

does not expressly inform them that he is granting them a special privilege"".......

(Page 55)

In general, every highway maintainable at the public expense, vests in the authority which is for the time being the highway authority for the

highway."" (Page 73)

In ""Pratt and Mackenzies Law of Highways"", 20th Edn. at p. 4 it is stated :

Subject to the right of the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it, and as such may

maintain trespass against any member of the public who acts in excess of his right.

The fact that a way has been used by the public so long and in such a manner that the owner of the land whoever he was, must have been

aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief is evidence (but not

conclusive evidence) from which a Court may infer a dedication by the owner. A dedication may also be inferred when a highway authority has

used a strip of land adjoining an admitted highway for the deposit of stones or by cutting grips, or has as of right and without permission, piped in

and levelled the site of a roadside ditch.

In Harvey v. Truro Council (1903) 2 Ch 638 at pp. 643-644, Joyce, J., makes the following interesting observations which are relevant to the

present enquiry :--

In the case of an ordinary highway running between fences, although it may be of varying and unequal width, the right of passage or way prima

facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the entire of it as

the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot-

passengers.

The space at the sides that is of the hard road is also necessary to afford the benefit of air and sun. Rex v. Wright (1832 Band Ad. (681) 37

RR 520 . The expression 'road' or 'highway' is not confined to the portion actually used by the public but it extends also to the side lands. Anukul

Chandra Chakravarti and Others Vs. Chairman of the Dacca Dist. Board, . The ground whether metalled or not, over which the public has a right

of way is just as much the public road as the metalled part. The Court would be entitled to the inference that any land over which the public from

time immemorial had been accustomed to travel was a public street or road and the mere fact that a special part of it was metalled for the greater

convenience of the traffic would not render the un-metalled portion on each side any the less a public road or street. Municipal Board of Agra v.

Sudarshan Dass Shastri AIR 1914 All 341 . The decision given by the Supreme Court of India be also noticed. In Municipal Board, Manglaur Vs.

Sri Mahadeoji Maharaj, 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 (at page 1149):--

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 extend of the user.

Again, in State of Uttar Pradesh Vs. Ata Mohd., , 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 the 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.

In the above case some previous decisions were noticed. These paras are as under (at page 1787):--

It has been found that the property in dispute is Patri and is a land which is within the defined boundary of the property abutting into the road.

Thus the properly in question falls within the definition of the word 'street'. The question as to the nature of the right that vest in the Municipality u/s

116(g) of the Uttar Pradesh Municipalities Act will have to be considered. This Court in Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj,

had to consider the nature of the right that vested in the Municipality over the streets, Subba Rao, J. (as he then was) after considering the

decisions of the English Courts and the High Courts, summed up the law on this subject as follows :--

The inference that the side lands are also included in the public way is drawn easily as the said lands are between the metal road and the drains

admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has

the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to

enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring

a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of

the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in

excess of his rights"".

It was concluded as under :--

What is vested in the Municipality u/s 116(g) is the street qua street and if the Municipality put the street to any other user than that for which it

was intended, the State as its owner, is entitled to intervene and maintain an action and to get any person in illegal occupation evicted.

Reference be made to a decision given by the Supreme Court in the case of M/s. Gobind Pershad Jagdish Pershad Vs. New Delhi Municipal

Committee, . 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 (at page 2317):--

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. 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 and 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 volition

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"" u/s 171 (4) of the Act, the ""streets"" are meant for public use. It is necessary that the ""streets"" which are being used by the public arc

frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control, the hawkers and

sqatters 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 u/s 17(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the

public street"". 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."" Thus not only pavements, varandahs drains but all open spaces in front of shops which are accessible to vest in the Municipal

Corporation. This vesting is for the purpose streets are used as streets and are accessible to public without any obstruction.

A perusal of the aforementioned judicial precedents indicate that every inch of land which is accessible to the public would be part of street

and public streets and this piece of land cannot be permitted to be used for a purpose other than for which it can be used under statutory

provisions.

There can be no dispute with the proposition that the public has a right of passage and this cannot be obstructed. Halsbury deals with the rights

of the public vis-a-vis passage. Relevant passage is as under :--

The right of the public is a right to pass along a highway for the purpose of legitimate travel, not to be on it, except so far as the public's presence

is attributable to a reasonable and proper user of the highway as such. A person who is found using the highway for other purposes must be

presumed to have gone there for those purposes and not with a legitimate object, and he is to be treated as a trespasser. If a highway causes

damage to premises adjoining the highway, the person who has suffered damage cannot recover in trespass in the absence of negligence on the

part of the person causing the damage"". (P. 76)

In this very volume at page 182, even footpaths have been treated as part of the highway and it would be useful to note what has been said at

page 182:

Public footpaths are highways and the general law as to highways applies to them except where footpaths are excluded by the terms of a

particular enactment or arc subject to enactments applicable to footpaths only.

Like other highways, public footpaths owe their origin either to express or inferred dedication or to some statute.

The judicial precedents support that the municipal authorities are under an obligation to not to permit any permanent or pakka construction on

streets and public streets. The principle that Municipality cannot use a public street otherwise than as a public street and it has no right to interfere

with the enjoyment of the right of way by public by letting out a portion of it to a particular individual for private use was recognized in Municipal

Committee Multan v. Abdul Gafoor and others AIR 1934 Lah 900. In Tallak Chand v. Dhoraji Municipality AIR 1955 Sau 63 , a Division Bench

observed that the Municipality is not entitled to put up a pucca structure even on a footpath. Even the Government has no right whatsoever to

declare any part of a public street to be a footpath to be a hawker's corner. Biswanath Sinha and Others Vs. Sudhir Kumar Banerji and Others, .

The fact that the public streets arc to be kept free from encroachment was considered in Pyarelal v. Santlal AIR 1972 Raj 103. It was observed:--

When the Act did not give any power to the Municipality to let out portions of a public highway for putting up stalls for carrying on business this

could not be done by framing any bye-laws. Section 129 of the Act which provides for framing bye-laws does not contain any clause specifically

empowering the Municipality to frame bye- laws about letting out parts of public highways of Tehbazari, Clause (i) is a general enabling the

Municipality to frame bye-laws for carrying out the purposes of the Act. As has been shown above the Act does not empower the letting out of

portions of highway for carrying on business and so no by-laws could be framed authorising the Municipality to do so.

The Municipality Authorities cannot permit erection of a statute in violation of the Municipal Act on a public street. Even an island is protected.

It was observed that if the Municipal Authorities act contrary to the provision of a statute then they can be directed to act in accordance with law.

R. Varadarajan Vs. Salem Municipal Council and Another, . In Mst. Bhagwanti Vs. Mst. Jiuti and Another, , it was observed that if an obstruction

is made by any person or authority on a public way which affects the ingress and egress then a suit can be maintained for the removal and

demolition of the construction in question. In Prabhudas Kalyanji and Others Vs. Haji Hasan Haji Yusuf Maklal and Others, , it was observed that

a mandatory injunction can be granted directing that Municipality to take action against the person who has been permitted to put a cabin on the

footpath. Reliance was placed on an earlier decision given in Parasram Manjimal and Others Vs. The Kalol Municipality, Kalol, and Emperor Vs.

Vishvanath Nana Karpe and Others, . The Municipality cannot permit any person to deposit goods for sale on any public street and cannot lease

any portion of public street. Municipal Committee, Multan v. Tahila AIR 1923 Lah 272 . Reference be also be made to the decision of the Patna

High Court in Dwarka Prasad Singh and Others Vs. Patna City Municipality and Another, , wherein it was held that the owner of the land abutting

on a roadway is entitled to access to that roadway. This decision was affirmed by a Division Bench of that Court. This is reported as Patna City

Municipality Vs. Dwarka Prasad Singh and Others, . Other decisions cealing with the subject and holding that highways cannot be obstructed or

fenced and that these must remain accessible to the adjoining owner are District Board of Manbhum Vs. Bengal Nagpur Railway Co. and

Another, . Pahlad Maharaj and Others Vs. Gauri Dutt Marwari and Another, ; Dasrath Mahto and Others Vs. Narain Mahto and Others, ; Firm

Kastoori Lal Sant Lal v. M. C. Jagraon. AIR 1939 Lah 199 and M.C., Delhi v. Mohd. Ibrahim AIR 1935 Lah 196.

Under a Government scheme to aid the disabled persons an institution was authorised to construct a Bunk on the side of road within the

Corporation limit. This action was challenged. It was held that the land on which the bunk was built was a public street and neither the Government

nor the Corporation had any right to allow any construction or to use it in fashion other than the public street. B. Govinda Rao Vs. District

Collector, Ernakulam and Others, . In Corporation of Cochin and Another Vs. K. Janardhanan, , a construction was made on foot-path. It was

held that the Municipal authorities could demolish the construction since it was constructed on property which vested in the Corporation. In this

case, the permission was granted to construct a milk booth over a gutter. The booth was however constructed over the gutter and the footpath. It

was held that the construction on the footpath could be demolished. In Government of Tamil Nadu Vs. Chingleput Dravidar Kazhagam and

Another, , it was held that the Municipal Council cannot permit the user of the street for a purpose other than that indicated in the statute.

Accordingly, it is held that the Municipal authorities and other authorities are not within their rights to permit any permanent pakka structure on

a street or a public street. If it does so then it can be said that it has acted beyond the powers conferred on it and it would be beyond the statutory

provisions. This would accordingly be null and void.

One aspect of the matter which stilt requires to be gone into is that there is widespread notion on the part of the citizens of this country that

they can resort to unchecked indiscriminate encroachments and public streets can be put to any use. Whether this can be done or not and as to

whether it creates nuisance or it gives rise to civil or criminal liability has also to be gone into.

I am of the view that State and Municipal authorities must make it known in no uncertain words that public has no right to encroach on public

streets. The public should also keep its eyes open and see to it that Municipal Officers are also not party to the systematic encroachment of streets.

It is a nuisance if public roads are obstructed. Again such obstruction can again give rise to civil as also criminal liability. In this regard, it would

again be, useful to make reference to Halsbury's Law of England.

Obstructing or encroaching upon public streets may first be adverted to. In this regard it has been said :--

An obstruction, encroachment or other nuisance upon a public footpath, including failure to repair, is punishable as in the case of any other

highway, and certain obstructions and methods of user of a footpath or bridleway are liable to summary proceedings as in respect of a highway. It

is also an offence to leave litter in an open air place to which the public has access. In addition, special protection to footpaths and bridleways is

given by statute, and local authorities have certain statutory powers of control of the use of footpaths and bridleways for motor vehicles trials"",

(page 305)

It is a nuisance at common law to obstruct a highway or to render it dangerous. Whether an obstruction, encroachment or other act or omission

amounts to a nuisance is a question of fact. Generally, however, it is a nuisance to interferred with any part of a highway.

A permanent obstruction erected upon a highway without lawful authority and rendering the way less commodious is a nuisance. It is a nuisance to

erect a gate acros a highway where there has been none before, or, if a footpath has been dedicated subject to the existence of a stile, to substitute

a higher or less convenient stile, or erect posts in the highway, or to erect or place without statutory authority telegraph posts or tramway lines even

with the consent of the highway authority. It is also a nuisance to place on the highway heaps of stone, wood or other materials, or to place stands

on it.

To leave a celler flap open and unguarded may constitute a nuisance. It is a nuisance to dig a permanent trench across a highway or to break

open, without statutory powers the soil of a highway for the purpose of laying drains or wires, or to fail to reinstate a highway after lawfully

breaking it open or to plough up the highway unless dedicated subject to a right to do so.

It is a nuisance to remove the lateral support of a highway by quarrying or the vertical support by underground workings.

Again if vehicles of unreasonable size and character are put on a highway even that has been held to be a nuisance. See : Halsbury's pages 306

and 307. Again, if something is deposited on a public highway, it would be a nuisance.

Remedies to remove a nuisance is again found method in Halsbury's Law of England. This be noticed :--

Every public nuisance at common law is an offence and is triable either on indictment or summarily. If the nuisance is still in existence at the time of

the conviction, the Court may order the defendant to abate it.

No lapse of time, and no consent from any highway for which it is not the highway authority, except under statute, affords a defence to a charge of

committing a nuisance."" (page 313)

A highway authority has a duty to assert and protect the rights of the public to the use and enjoyment of any highway for which it is the highway

authority, including any roadside waste forming part of it. Any council may assert and protect those rights in respect of any highway in its area for

which it is not the highway authority, including any reasonable waste forming part of it. (Page 317)

It is the duty of a council which is a highway authority to prevent, as far as possible, the stopping up a obstruction of the highways for which it is the

highway authority, and any highway authority if in his opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of

its area."" (Page 317-318)

Any person who in any street, to the obstruction, annoyance or danger of the residents or passengers, places or leaves any furniture, goods

wares, merchandise cask, tub, basket, pail or bucket or who places or uses any standing-place, stool, bench, stall or show board on any footway

or who places any blind, shade, covering, awaning projection. .....

Before noticing the position as it exists under the J. & K. Municipal Act, 2008 BK, one aspect of the matter which is again dealt with in the

Halsbury's Law, of England with regard to projections of the buildings, be also noticed. In this regard the observations made are as under :

A competent authority may by notice to the occupier of any building require him to remove or alter any porch, shed, projecting window, shutter,

wall, gate, fence or other obstruction or projection which has been erected of placed against or in front of the building and is an obstruction to safe

or convenient passage along a street.

As to whether things can be got deposited on a highway is a matter which is dealt with in above treatise. This be noticed :--

If any thing is so deposited on a highway as to constitute a nuisance, the highway authority for the highway may by notice require the person who

deposited it there to remove it forthwith. If he fails to comply with the notice, the authority may make a complaint to a Magistrate's Court for a

removal and disposal order. Such an order may authorise the complainant authority either to remove the thing in question and dispose of it or, as

the case may be, to dispose of the thing in question and after paying the expenses incurred in the removal and disposal out of any proceeds arising

from the disposal, to apply the balance, if any, to the maintenance of highways maintainable at the public expenses by it. If the thing in question is

not of sufficient value to defray the expenses of removing it, the complainant authority may recover from the person who deposited it the expenses,

or the balance of the expenses, reasonably incurred in removing it.

Where a highway authority has reasonable grounds for considering that any thing un-law-fully deposited on the highway constitutes a danger to

highway users, and that it ought to be removed without the delay involved in giving notice or obtaining a removal and disposal order from a

Magistrate's Court, the authority may remove the thing forthwith. The authority may recover any expenses reasonably incurred in removing the

thing from the person by whom it was deposited or from any person claiming to be entitled to it, or may make a complaint to a Magistrate's Court

for a disposal order.

From what has been, stated above it becomes apparent that:--

(i) Municipal Corporation is merely a trustees; when it manages the streets and public streets.

(ii) Every portion of the street or public street which is accessible to public is to be used only for that purposes;

(iii) Streets are to be used only for the benefit of the public at large;

(iv) If any obstruction/encroachment is caused on the public street then it would be a nuisance.

(v) Depositing or goods on a portion of the street/footpaths would again be nuisance.

(vi) This nuisance can give rise to civil as well as criminal liability.

(vii) In the case of projections on a public street, the Municipal authorities are not powerless. Chapter XX of the Act makes ample provision in this

regard.

Apart from this, Section 283 of the Penal Code also makes a provision in this regard. This reads as under :--

""Danger or obstruction in public way or line of navigation : whoever, by doing any act, or by omitting to take order with any property in his

possession of under his charge causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished

with fine which may extend to two hundred rupees.

Thus it is an offence to occupy a public street; it gives rise to both a civil and criminal liability when a person obstructs a path. Not only the

person who makes an obstruction/encroachment or deposits goods on a public street but the Corporation officials whose duly it is to see that there

is no obstruction would equally be guilty the abetting the offence, if they do not take remedial measures.

In view of what has been said above, the respondent-authorities would take appropriate action. If (the land which apparently appears to be a

part of public street) is found by respondent-authorities as falling within public street, then no permission would be granted by respondent-

authorities to the petitioner to remain in occupation. Not only this, action would be taken with a view to remove the encroachment. Action with a

view to remove encroachment would be taken by the respondent-authorities not only in the case of the petitioner, but with regard to other persons

and occupants who have encroached upon street and public street in the City of Jammu and other Municipal areas.

Before parting with this judgment, one other aspect is also seriously required to be taken note of. It be seen that the vehicle carrying

passengers and goods move and stop on the streets at their sweet will. The sight of mini buses over-taking another stationary mini bus is common.

The sight of two mini buses over-taking simultaneously another stationary vehicles is also not un-common. The drivers of these vehicles are

unmindful of traffic coming from opposite directions. They stop at crossing obstructing free movement of traffic. They drive at speeds as if they are

taking part in a rally.

The authorities and more particularly traffic controlling agencies would see to it:--

(i) that no vehicle carrying passengers is permitted to halt within 20 meters of any crossing.

(ii) The Municipal authorities would ear-mark places where these vehicles are to stop for dropping the passengers and for picking them up.

(iii) Maximum speed limit would be fixed and enforced.

(iv) No over-taking Zones applicable to the passengers vehicle would be ear-marked.

(v) No vehicle i.e. trucks, buses on mini buses would be permitted to remain stationery at one place during peak rush hours.

(vi) The traffic authorities would also see to it that the mini buses and other buses operate on the routes allocated to them.

(vii) Traffic agencies would examine the desirabilities of regulating the traffic by providing one way traffic. This shall atleast be restored to during

rush morning and evening hours.

Steps taken in this regard be indicated to the Registrar General of this Court and also to the Mobile Magistrate, Jammu.

A copy of this judgment be sent to the Senior Supdt. Police, Jammu who would submit report every two months indicating the steps taken with

a view to ease-out and regulate the traffic.

A copy of this judgment be also sent to Mobile Magistrate, Jammu who would enforce the traffic regulation and directions contained in this

order. If any authority fails to do so, a report be submitted to the Registrar General of this Court.

A copy of this be also sent to Administrator, Jammu Municipality and also to the Secretary dealing Department of Transport Urban

Administration and Local Government.

Report regarding steps taken would be made available to the Registrar General of this Court in first week of second month.

This writ petition is disposed of with following directions:--

(i) Respondent authorities to determine the nature of land regarding which possession is being sought.

(ii) If the land is found to be part of street, public street, pavement, portion over a drain then possession would not be regularised.

(iii) The Municipal authorities and other Development authorities shall take steps to remove the encroachment. Resort would be had to Section

207 of the Act and other enabling provision contained in Chapter XX of the Act.

(iv) Copies of this order be sent to the authorities indicated in this order who shall sent two monthly reports to the Registrar General of this Court.

There would be no order as to costs.