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Judgment
The instant bunch of writ petitions involves common question of facts and law and is thus being decided together by this single order.
These writ petitions under Article 226 of the Constitution of India have been preferred to challenge individual identical show cause notices dated
10.10.2013 issued to the petitioners by the Municipal Council, Bhilwara calling upon the petitioners to remove the encroachments in form of shops
allegedly made by the petitioners on the land owned by a public trust named Sarvajanik Sampati Trust, Bhilwara.
The petitioners are doing business for the last nearly 50 years at the shops in question which they claim as rented out to them/ their predecessors in
title by the Trust. The trust in question was created in the year 1940 during the rule of the erstwhile State of Mewar and was also registered under the
Societies Registration Act. After coming into force of the Registration Public Trust Act, 1959, the trust was re-registered thereunder. The trust runs a
school in the name of Gopal Chhatrawas. The petitioners claim that in order to meet the expenses of the Gopal Chhatrawas, the trust constructed the
shops in question and rented them out to the petitioners. The petitioners are regularly paying the rent of the shops to the trust. The petitioners claim
that in the year 1968, some of the shops were extended upto the main road by covering a naala falling in between and the said extension was
regularised vide order dated 15.04.1968. However, to their utter surprise and detriment of the petitioners, the Municipal Council, Bhilwara issued them
the impugned notices in identical terms directing them to remove the encroachments allegedly made by the petitioners on public trust property. These
notices are assailed in this bunch of writ petitions. The language of the verbatim proforma notices is relevant for deciding the controversy and is thus
being reproduced herein below for the sake of ready reference:
“dk;kZy; uxj ifj’kn HkhyokM+k ¼jkt-½
 Øekad % uiHkh@vfrØe.k@10@18166 fnukad 10-10-2013
uksfVl
cuke …………………..
…………………..
…………………..
fo’k;& ljdkj@ifjâ€kn Hkwfe ij vki }kjk fd;s tk jgs vfrØe.k ds lEcU/k esaA
fofnr jgs fd vkius fcuk fdlh vf/kdkj ds fcuk Lohd`fr ifj’kn Hkwfe@QqVikFk@lM+d1 9.6’ X 33’ ij uktk;t dCtk dj fuEu izdkj ls vfrØe.k dj
fy;k gS %& vki }kjk xksiky Nk=kokl dh laLFkkfud mi;kxs dh Hkwfe ij vki }kjk fcuk ifj’kn vuqefr1 9.6’ X 33’ esa nqdku fuekZ.k dj QeZ
¼vtesjk esMhdy LVksj½ nokbZ;ka cspus dk O;olk; dj jgs gS tks voS/k gksdj vfrØe.k gSA
vkidk mDr d`R; jktLFkku uxj ikfydk vf/kfu;e] 2009 dks /kkjk 245 ds varxZr vijk/k gSA vkidks ,rn~}kjk funsZfâ€kr fd;k tkrk gS fd bl lwpuk i= dh izkfIr
ls 2 fnu fnol dh vof/k esa vki mDr vfrØe.k gVk dj fyf[kr esa ifj’kn dks voxr djkosaA KkRo; jgs fd mDr funsZ’kksa dh vuqikyuk ugh djus ij
ifj’kn }kjk vkids fo:) mDr vf/kfu;e dh /kkjk 245¼1½ ds varxZr fof/kd dk;Zokgh dh tkosxhA ftlds varxZr vfrØe.k /oLr djus] ekSds ij iM+s eky
esVsfj;y tCr djus rFkk vfHk;kstu djus ij vkidks rhu o’kZ rd dk dkjkokl ,oa 50000@& ¼ipkl gtkj½ rd tqekZuk Hkh fd;k tk ldrk gSA
uksfVl vkt esjs gLrk{kj ,oa dk;kZy; eqgj ls izpfyr dj rkfeyu tkjh fd;k x;kA uksV& mDr Hk&w Hkkx lacaf/k LokfeRo izek.k&i= ,oa fuekZ.k Lohd`fr
gks rks mDr vof/k esa is’k djsaA fnukad & 10-10-2013 vk;qDr uxj ifj’kn] HkhyokM+kâ€
It is claimed in these writ petitions that as the shops in question are owned by the public trust were lawfully rented out to the petitioners, the Municipal
Council has no jurisdiction to issue notice and call upon the petitioners to evict the premises in question under Section 245 of the Rajasthan
Municipalities Act which is the only provision by which, the Municipal body can undertake an exercise of removal of possession/encroachment. The
provision reads as below:
“245. Encroachment or obstruction upon public land.(1) Whoever makes any encroachment in “any land or space not being private propertyâ€,
whether such land or space belongs to or vests in the Municipality or not, except steps over drain in any public street shall on conviction be punished
with simple imprisonment which shall not be less than three months but which may extend to three years and with fine which shall not be less than
thirty thousand rupees but which may extend to fifty thousand rupees:
Provided that the Court may for any adequate or special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of
less than three months.
(2) Whoever makes even temporary obstruction withoutprior permission of the Municipality “in any land or space not being private propertyâ€,
whether such land or space belongs to or vests in the Municipality or not, except steps over drain in any public street, shall, on conviction, be punished
with simple imprisonment which may extend to one month or with fine which may extend to five thousand rupees or with both.
(3) The Municipality or any officer authorized by it in thisbehalf shall have power to remove any such obstruction or encroachment and the expenses
of such removal shall be paid by the person who has caused the said obstruction or encroachment.
(4) Whoever not being duly authorized in that behalfremoves earth, sand or other material from any land or space as aforesaid, shall be punished on
conviction with imprisonment which shall not be less than two months but which may extend to six months or with fine which shall not be less than
thirty thousand rupees but which may extend to fifty thousand rupees or with both.
(5) Notwithstanding anything contained in the foregoingprovisions, the Municipality or the officer authorized by it in this behalf shall, in addition to the
action taken as provided in this Section, also have power to seize or attach any property along with tools and vehicles found on the land or space
referred to in this Section or, as the case may be, attached to such land or space or permanently fastened to anything attached to such land or space.
(6) Where any property is seized or attached by an officerauthorized by the Municipality, he shall immediately make a report of such seizure or
attachment to the Municipality.
(7) The Municipality may make such orders as it thinks fit forthe proper custody of the property seized or attached, pending the conclusion of
confiscation proceedings, and, if the property is subject to speedy and natural decay, or it is otherwise expedient so to do, the Municipality may order it
to be sold or otherwise disposed of.
(8) Where any property is sold as aforesaid, the saleproceeds thereof after deduction of the expenses of any such sale or other incidental expenses
relating thereto, shall
(a) where no order of confiscation is ultimately passed bythe Municipality; or
(b) where an order passed in appeal so requires, be paid tothe owner thereof or the person from whom it is seized or attached.
(9) Where any property is seized or attached under subSection (5), the Municipality may order confiscation of such property.
(10) No order for confiscating a property shall be madeunder sub-Section (9) unless the owner of such property or the person from whom it is seized
or attached is given -
(a) a notice in writing, informing him of the grounds onwhich it is proposed to confiscate the property;
(b) an opportunity of making a representation in writingwithin such reasonable time as may be specified in the notice against the grounds of
confiscation; and
(c) a reasonable opportunity of being heard in the matter.
(11) The order of any confiscation and removal ofencroachment under this Section shall not prevent the infliction of any punishment to which the
person affected thereby is liable under this Act.
(12) Any person aggrieved by an order made under subSection (7) or sub-Section (9) may, within one month from the date of the communication to
him of such order, appeal against it to the District Judge of the District in which such property is seized or attached.
(13) On such appeal the District Judge may, after giving anopportunity to the appellant and the respondent to be heard, direct the order to be stayed
pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.
(14) Whenever any property is seized or attached pendingconfiscation under this Section, the Municipality or the District Judge shall have, and
notwithstanding anything to the contrary contained in any other law for the time being in force, any other Court, tribunal or other authority shall not
have jurisdiction to make orders with regard to the -possession, delivery, disposal, release or distribution of such property.
(15) Where any person is prosecuted of an offence undersub-Section (1), sub-Section (2) or sub-Section (4), the burden of proving that he has not
committed the offence shall be on him.
(16) Nothing contained in this Section shall prevent theMunicipality from allowing any temporary occupation of or erection in any public street on
occasions of festivals and ceremonies, or the piling of fuel in any streets and spaces for not more than seven days and in such manner as not to
inconvenience the public or any individual.
(17) Nothing contained in this Section shall apply to anyprojection duly authorized under sub-Section (1) of Section 236 or in any case where
permission has been given under sub-Section (16) of this Section.
(18) Whoever, being an employee of the Municipality, orbeing on deputation with the Municipality from any department of the Government,
specifically entrusted with the duty to remove or to stop or to prevent the encroachment or obstruction, himself encroaches or helps others to
encroach, or willfully or knowingly, neglects or deliberately omits to remove or stop or prevent such encroachment or obstruction shall, on conviction,
be punished with imprisonment for a term which shall not be less than three months but which may extend to three years or with fine which may
extend to thirty thousand rupees or with both:
Provided that no Court shall take cognizance against such employee for the offence punishable under this sub-Section except with the previous
sanction of the Municipality.
(19) No investigation of an offence under this Section shallbe made by an officer below the rank of the Deputy Superintendent of Police. However,
such investigation shall be completed and report shall be filed in the Court within the period of three months from the date of filing First Information
Report on behalf of the Municipality by the Chief Municipal Officer or the official authorized by him.
(20) Without prejudice to the provisions of Section 298 andother provisions of this Act, it shall be lawful for the Chief Municipal Officer to lodge
proceedings against the person who is likely to make encroachment upon any Government or municipal land before the Magistrate concerned, for
preventing him from making any such encroachment and it shall be competent for the Magistrate, on being satisfied about the reasonableness of the
apprehension of the Chief Municipal Officer, to require such person to execute a bond, with or without sureties, for his good behaviour for such period,
not exceeding one year, as the Magistrate thinks fit. The procedure contained in Chapter VIII of the Code of Criminal Procedure, 1973 (Central Act
No. 2 of 1974) shall apply mutatis mutandis to the proceedings before the Magistrate under this sub-Section as if such proceedings were the
proceedings under Section 107 of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974).†             Â
(Emphasis supplied)
Dr. Pratishtha Dave, learned AGC, representing the respondent Municipal Council, has filed replies to the writ petitions wherein, primarily, an
objection is raised that the impugned notices are appealable under the Rajasthan Municipalities Act and thus, the writ petitions are not maintainable.
However, it is virtually admitted by the Municipal Council, Bhilwara in its reply that the shops in question are indeed owned by the trust. An objection
is also raised on behalf of the respondents that since the shops in question are owned by the trust, the writ petitions are not maintainable without
impleading the Trust as a party respondent in the proceedings.
Shri Arpit Bhoot, learned counsel representing the petitioners, relied upon the Supreme Court decisions in the cases of Ahmedabad Municipal
Corporation vs. Nawab Khan Gulab Khan & Ors., reported in (1997)11 SCC 121 and Madhavrao Scindia (Dead) By LRs. vs. Ramesh Jatav & Ors.,
reported in (2006)1 SCC 379 and urged that unless the Municipality comes out with a clear case that the petitioners have encroached upon public land,
it has no jurisdiction to make any interference whatsoever in relation to the shops in question which are indisputably constructed on private land owned
by the Trust. He contended that if at all, the Municipal body was of the view that the trust has made any encroachment upon public land, then, the
notices should have been issued to the trust and not to the petitioners who are merely occupying the premises as tenants of the owner trust. With
these submissions he urged that Hon’ble the Apex Court has clearly ruled in the above judgments that in case, the local body acts without
jurisdiction, the objection of alternative remedy even in terms of statutory appeal cannot come in way of the petitioners’ right to avail this
Court’s writ jurisdiction under Article 226 of the Constitution of India. On these grounds, he craved acceptance of the writ petitions.
Dr. Pratishtha Dave, learned counsel representing the respondent Municipal Council, though vehemently opposed the submissions advanced by Shri
Arpit Bhoot, however, she too was not in a position to dispute the fact that as per the admitted language of the impugned notices and the reply filed to
the writ petitions, the shops in question are owned by the public trust referred to supra. She was also unable to dispute that no case has been set up in
the impugned notices that the trust had encroached upon any public land. She also admits that as per Section 245 of the Rajasthan Municipality Act,
the Municipality has the absolute jurisdiction to take steps for removal of only such encroachments which are made on public land within its territory.
However, such jurisdiction cannot extend to interfere in possession on private land in the garb of the same being an encroachment.
In this background and as there is no material to satisfy the Court that the petitioners are encroachees upon public land and since the language of the
notice itself reads that the petitioners have raised the shops in question on institutional land owned by Gopal Chhatrawas, manifestly, the notices itself
are without jurisdiction as they operate well beyond the scope of powers conferred upon the Municipality by Section 245 of the Municipality Act. If at
all, the Municipal authorities were of the view that the shops in question have been constructed without permission or that any encroachment has been
made under this pretext upon public land, then manifestly, the owner trust has to be notified of this fact and merely issuing a notice to the tenants
would not serve the purpose.
Hence, having appreciated the entirety of facts and circumstances available on record, this Court’s finds the impugned notices to be per-functory
and also having been issued without application of mind and without jurisdiction.
In this view of the matter, the hyper-technical objection of maintainability of writ petitions raised by Dr. Pratishtha Dave in reference to the remedy of
appeal does not persuade this Court even for a moment that the petitioners can be deprived of the opportunity to avail the extraordinary writ
jurisdiction of this Court on the ground of availability of alternative statutory remedy so as to challenge the patently illegal notices.
Hence, the writ petitions deserve to be and are hereby allowed. The impugned notices dated 10.10.2013 issued to the petitioners by the respondent
Municipal Council, Bhilwara requiring them to remove the so-called encroachment are hereby quashed and set aside. However, the Municipal Council
is given liberty, if so advised and if permissible in law, to take appropriate steps against the trust in case, it is perceived that the shops in question were
constructed without seeking permission from the municipal body or that any encroachment was made on public land while raising such construction.
The writ petitions are allowed in the above terms.
No order as to costs.
A copy of this order be placed in each file.