Suresh Nijhon vs Nagar Nigam Dehradun And Another

Ramesh Ranganathan, CJ

Heard Mr. Abhijay Negi, learned counsel for the appellant-writ petitoner, Mr. Ashish Joshi, learned Standing Counsel for the Nagar Nigam/respondent No.1 and Ms. Prabha Naithani, learned Brief Holder for the second respondent.

The appellant herein is the petitioner in WPMS No.2637 of 2019. He invoked the jurisdiction of this Court seeking a writ of mandamus directing the respondent-Nagar Nigam, Dehradun to issue him a show cause notice in case of any alleged encroachment, and pass a reasoned order thereto after affording him an opportunity of hearing; and a writ of mandamus directing the respondent-Nagar Nigam, and the District Magistrate, Dehradun, not to interfere in the operation of the shop of the petitioner until a reasoned decision is made on his representation.

The petitioner claims to have purchased the subject shop from the heirs of Late Kanshiram in the year 2005. It is his case that the subject shop is being operated, from the very same place, ever since 1945; the nala, below the shop, is connected to the main Paltan Bazar drain; and the petitioner has not been issued any notice to show cause, and has not even been informed as to why action was being taken to demolish his shop.

In the order under appeal, the learned Single Judge noted the petitioner's complaint that the shop had been marked by the officials of the Nagar Nigam, Dehradun for demolition; and the petitioner was called upon to demolish the shop, failing which the Nagar Nigam, Dehradun would demolish the same. The learned Single Judge, thereafter, observed that the appellant-writ petitioner, admittedly, had a shop on the top of a public drain; it was, therefore, an encroachment on public property; the question whether the petitioner was actually an encroacher on a public property/utility was a disputed question of fact, which would not be dealt in a writ petition; the demolition drive, admittedly, had been undertaken on the directions given in WPPIL No.47 of 2013; and, therefore, no interference was called for. Aggrieved thereby, the present appeal.

Mr. Abhijay Negi, learned counsel for the appellant-writ petitioner, would submit that the order of the Division Bench in WPPIL No. 47 of 2013 dated 18.06.2018 was modified by the Supreme Court in its order in Special Leave Petition (Civil) Diary No(s). 24083 of 2018 dated 04.07.2018; the Supreme Court had directed that, in places other than public roads, a show cause notice should be given to the alleged encroachers, they should be given an opportunity of being heard, and only thereafter should the exercise of demolition be undertaken; and the coercive action of the Nagar Nigam in forcefully seeking to demolish the petitioner's shop, without even putting him on notice and without giving him an opportunity of being heard, is not only in violation of principles of natural justice, but is also contrary to the order of the Supreme Court referred to hereinabove.

On the other hand, Mr. Ashish Joshi, learned Standing Counsel for the Nagar Nigam, would submit that the subject shop is located over a public drain; in terms of the provisions of the Uttar Pradesh Municipal Corporation Act, 1959, and the order passed by the Division Bench in WPPIL No. 47 of 2013 dated 18.06.2018, the Nagar Nigam had undertaken a demolition drive for removal of all unauthorized constructions; no construction can be raised over and above a public drain; and the petitioner cannot claim any title or right to a shop constructed above a public drain.

It is not in dispute, and is in any event evident from the photographs which the petitioner has himself filed along with the writ petition, that the small cloth shop, which he has constructed, is over a drain. While the front legs of the shop are located besides the public road on one side of the drain, the hind legs of the shop are located on the other side of the drain, meaning thereby that the public drain lies right below the petitioner's cloth shop.

Section 244 of the Uttar Pradesh Municipal Corporation Act, 1959 (for short the "Act") relates to the right of the Corporation to drains, etc., constructed at the charge of the Corporation Fund on premises not belonging to the Corporation. The said provision reads as under:-

"244. Right of Corporation to drains, etc., constructed at charge of Corporation Fund on premises not belonging to Corporation. - All drains, ventilation-shafts and pipes and all appliances and fittings connected with drainage works constructed, erected or set up at any time at the charge of the Corporation Fund or at the charge of the funds of any local authority having jurisdiction in any part of the City before the date of the establishment of the Corporation upon any premises not belonging to the Corporation and otherwise than for the sole use and benefit of the premises or group of premises shall, unless the Corporation has otherwise determined, vest in the Corporation."

All drains constructed with the funds of the Corporation, and the local authority having jurisdiction in any part of the City before the date of establishment of the Corporation, undoubtedly belong to the Corporation. Apart from such drains, all other drains, apart from those meant for the sole use and benefit of the premises or a group of premises, shall, unless the Corporation has otherwise determined, vest in the Corporation. Except drains which have been constructed for the sole use of a premises or a group of premises, Section 244 of the Act, by legal fiction, vests all other public drains in the Corporation, unless the Corporation has otherwise determined. It is not even the petitioner's case, in the affidavit filed in support of the writ petition, that the Corporation has otherwise determined in terms of Section 244 of the Act. Consequently, as the subject drain is not for the sole use and benefit of a premises or a group of premises, it would, undoubtedly, vest in the Corporation in terms of Section 244 of the Act. The petitioner cannot, therefore, be heard to contend that he is entitled to carry on business in a shop which he has erected over a drain belonging to the Nagar Nigam, Dehradun.

In Suneeta Vs. The State of Uttarakhand order in Special Leave Petition (Civil) Diary No(s). 24083 of 2018 dated 04.07.2018, the Supreme Court modified the order of the High Court directing notice to be issued for eviction, wherever persons are found to have encroached upon public lands. A time of three weeks was granted for issue of notices, a further three weeks' time was granted for reply to be submitted, and the Nagar Nigam was directed to take a decision within four weeks thereafter. Status quo was directed to be maintained till such a decision was taken. The Supreme Court, however, made an exception in the case of public roads, holding that the requirement of compliance with principles of natural justice would be required only in cases other than public roads.

Demolition of constructions raised over public drains, vested in the Nagar Nigam, and encroachments thereupon, was not in issue before the Supreme Court.

It is no doubt true that, save statutory provisions which specifically exclude application of the rules of natural justice, principles of natural justice must be read into the unoccupied interstices of statutory provisions. (Institute of Chartered Accountants of India Vs. L.K. Ratna, AIR 1987 SC 7 and C.B. Gautam Vs. Union of India, AIR 1994 SC 771). It is also settled law that principles of natural justice is not an empty ritual or a needless formality, and it is only where a clear case of prejudice being caused is made out would this Court be justified in interfering, with the action taken by the respondent, on the ground of violation of principles of natural justice. (Judgment of the Andhra Pradesh High Court in Writ Petition No. 15057 of 2000 dated 29.07.2010). Rules of natural justice are to be followed for doing substantial justice, and not for completing a mere ritual of a hearing, without the possibility of any change in the decision of the case on merits. (Escorts Farms Ltd. v. The Commissioner, Kumaon Division, Nainital, U.P. And Ors. : (2004) 4 SCC 281). An opportunity is given to a person, in occupation of the public lands, to show cause with regards his having encroached upon public lands, to enable the person in occupation to show that he has a right/title over the subject land; he is not an encroacher; and he is not liable, therefore, to be evicted therefrom. In the matter before us, it is the admitted case of the petitioner that the subject shop has been constructed over a drain and, as noted hereinabove, all drains, except those specifically excluded by Section 244 of the Act itself, vest in the Corporation. As the petitioner, admittedly, does not fall within the exceptions referred to in Section 244 of the Act, directing the Nagar Nigam, to issue a notice and give the petitioner an opportunity of being heard, is an empty ritual and a needless formality, for it is not even the petitioner's case before us that he could have submitted otherwise, if a notice had been given to him.

The scope of interference, in an intra court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, is extremely limited. Save cases where the order under appeal suffers from a patent illegality, no interference is called for. We find no such infirmity in the order under appeal warranting exercise of the jurisdiction under Chapter VIII Rule 5 of the Allahabad High Court Rules. While we would, ordinarily, have dismissed the Writ Petition in limine, a passionate plea is put forth by Mr. Abhijey Negi, learned counsel for the petitioner, that the petitioner is a petty vendor eking out his livelihood, carrying on the business of sale of cloth, in a small shop of 14 feet in length and 2½ feet in width; this shop is his only source of livelihood; and demolition of the shop would disable him from earning his living. Since the subject drain vests in the Corporation, it would be wholly inappropriate for us, in proceeding under Article 226 of the Constitution of India, to permit the petitioner to continue carrying on business in the said shop, merely because the Nagar Nigam appears to have turned a blind eye, to the construction raised by the petitioner, for the past several years.

With a view to enable the petitioner to remove the goods kept in the shop, and to dismantle the shop without causing much damage thereto and for it to be erected elsewhere, we direct the respondent-Nagar Nigam not to take any coercive action, for demolition of the subject shop, for a period of three weeks' from today. In case the petitioner does not remove the shop, erected over the subject drain, within three weeks' from today, it is open to the Nagar Nigam, thereafter, to take appropriate action, in accordance with law, for removal of the unauthorized construction raised by the petitioner over the drain.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.

Let a certified copy of this order be issued to the learned counsel for the parties, on payment of the prescribed charges, today itself.