Lachman alias Lakshminarayan Agarwala and Another vs Executive Officer, Bargarh Municipality

Narasimham, C.J.—These two revisions were heard analogously and will be disposed of in this judgment as the point involved in both of them is the same.

The petitioners in both these revisions are residents of Bargarh town which is a Municipality. The Raipur-Sambalpur Highway runs through the heart of that town. The authorities of the Bargarh Municipality prosecuted them for an offence u/s 383, Orissa Municipality Act 1950 (Orissa Act 23 of 1950), read with Sections 252 and 254 of that Act, on the ground that they encroached on the same highway and that they omitted to remove the encroachment even though they were given notice by the Executive Officer to remove the Game. The Overseer of the Municipality was examined to grove the encroachment on the said public road. The petitioners main defence was that the encroachment, if any, had taken place several years ago and that they had acquired right over the encroached area by prescription. The lower Courts, however, disbelieved the story of long continued user of the encroached area by the petitioners mainly on the ground that the evidence in support of the same was extremely meagre. They therefore held that the encroachment was un- authorised, that the petitioners failed to obey the order issued to them by the Executive Officer to remove the encroachment, and consequently they were liable to punishment u/s 383 of the Municipal Act.

Mr. B.N. Das, in support of the revision urged that the public road in question belonged to the P.W.D. of the Orissa Government and that it did not vest in Bargarh Municipal council. He further urged that the power of the Municipality to direct the removal of the encroachment u/s 254 was exercisable only where the encroachment is on a public road which vests in the Municipal Council, and not on a public road which may vest in the State Government or in any other authority.

It is an admitted fact that the road in question belongs to the P.W.D. of the Government of Orissa. It was also admitted by the learned Government Advocate appearing on behalf of the State, that there is no order u/s 123 of the Municipal Act making over this portion of the road to Bargarh Municipality for the purpose of management and control.

Hence, though there is no direct evidence in this case about the maintenance of the road, it may be assumed that the road is maintained by the P.W.D. The main question of law for consideration is whether a Municipality in exercise of its powers u/s 254, can direct the removal of an encroachment on a public road though it did not vest in the Municipality but in some other public body.

For a decision of this point it is necessary to refer to some of the important provisions of Chap. 16, Orissa Municipal Act, 1951. Section 234 confers powers on Municipality to maintain all public roads out of the Municipal fund. This section does not, in terms, say that the Municipality can maintain only those public roads which either vest in the Municipality u/s 121 of that Act, or have been made over to them by the State Government u/s 123.

The Bargarh Municipal Council may therefore claim their right to maintain the road in question at their own expense. This however is a matter of adjustment between the Municipality and the Public Works Department and it does not directly affect the point in issue in these two revisions. Sections 235 to 246 deal with other powers of Municipal Councils over public roads. In none of these provisions it is clearly mentioned that the public road must have vested in the Municipality before it could take action under those provisions.

Sections 247 to 251 Seal with the power of the Municipality over "private roads" as defined in Section 3(27) of that Act. Even though such private roads may not vest in the Municipality that authority is conferred power by the Act to regulate the lay-out of the construction and repair of such roads. Sections 252 to 260 of Chap. 16 have been placed under a sub-heading as follows: "Encroachment on roads". The sub-heading does not limit those sections to public roads only. Moreover Section 252 which is the most important section for the purpose of the present revisions says:

"No one shall build any wall or erect any fence or other obstruction, or projection, or make any encroachment in or over any road except as hereinafter provided."

The words ''any road'' seem to indicate that the prohibition against encroachment is in respect of all classes of roads whether public or private, whether vesting in the Municipality or in any other public authority or individual. Section 254(1) confers power on the Executive Officer by notice to require the owner of any premises to remove an encroachment in or over any road. In this section also the expression ''road'' is not qualified by such words as ''vesting in the Council''.

On the other hand, where it is a case of granting license to erect structures in or over roads, Section 255(2) confers power on the Executive Officer to grant such license only in respect of ''public roads vested in the Council'' or in any other public place the control of which is vested in the Council.

Again, when proper precautions have to be taken at the time of repairing a road Section 256 requires the Municipality to take certain steps in respect of the construction of repair of ''any road.... vested in the Municipal Council''. Again Section 258 prohibits the making of holes or causing obstruction on any road, and Sections 259 and 260 also confer limited powers on the Municipality to regulate the construction of buildings likely to cause obstruction on any road and the clearing of debris that might have fallen on such roads.

Thus, on a close scrutiny of the provisions of Sections 252 to 260 of the Orissa Municipal Act which are all placed under the sub-heading ''Encroachment on Roads'' in Chap. 16 of that Act, it seems a fair inference that where the Legislature intended that a particular provision should apply only to roads vested in the Municipal Council they have expressly said so. Where however a provision is intended to be applied to all classes of roads the limiting words ''vested in the Council'' are absent and the expression used is ''any road''.

Section 252 is a general one prohibiting the causing of obstruction in or over any road and Section 254 confers powers on the Executive Officer to get the encroachment removed. The powers conferred by Section 254 should, under the ordinary rules of construction, be held to apply not only in respect of roads vested in the Council, but also in respect of all other classes of roads whether public or private.

Encroachment on a road is in the nature of nuisance to the residents of the locality through which the road passes and also to persons who may be using that road; & the power of a nuisance does not ordinarily depend on its ownership of the place where the nuisance is committed. Mr. Das was also not able to cite before me any authority in support of his contention.

I would therefore maintain the conviction and sentence and reject these revision petitions.