citation for crossroads converted as residential sites

Sorry for post reply.

It was a private revenue land. Landlord earlier marked as cross road of just 20x40 feet long which connects two main roads. Later on he found the cross road was not necessary since there is better parallel main road on run. By removing this crossroad, will not affect anyone. So he cancelled the cross road which was not necessary and formed as a residential site. To approve this, is there any citation from any court. An humble request.

Thanks in Advance.

In a case before Karnataka High Court Rajagopalaiah vs Chief Officer Reported in ILR 1995 KAR 2451 It is observed as follows:- “ It is not disputed that the street in question together with foot paths is in existence from the year 1928 and is a main road in Doddaballapur Town. The street is vested in the respondent-Municipality by virtue of Section 81(2)(f) of the Karnataka Municipalities Act, 1964 ('the Act' for short). It is obligatory on the part of the Municipality to maintain the public streets and to remove obstructions if any, under Clauses (f) and (i) of Section 87. Chapter IX of the Act deals with the powers of the Municipality in respect of streets. It is lawful for the Municipality to make public streets, to widen, open, enlarge, or otherwise improve any such streets under Sub-section (1) of Section 175. Under the Proviso to Sub-section (1), no public street vested in the Municipal Council can be diverted, discontinued or closed without publication and calling for objections and obtaining the approval of the Government. Regular line of public street can be prescribed by the Municipality under Section 179 with the sanction, of the Government and can be substituted by a fresh line, in accordance with the procedure laid down thereunder. Construction of buildings can be made only within the regular line of streets as laid down under Section 180.  On a perusal of the aforementioned provisions of law, it is clear that the Municipality can lay out and make new public streets, widen, open, enlarge or otherwise improve any such streets. The power to divert, discontinue or close the public street can be exercised only after calling for objections and obtaining approval of the Government. It is open to the Municipality to improve any public street by widening, opening and enlarging. No power is vested in the Municipality to lessen the widdth of any public street. It is therefore to be seen whether the respondent has lessened the widdth of the street by constructing shops on either sides of the street.”

Ramadas Shenoy v. Chief Officers, Town Municipal Council Udipi (AIR 1974 SC 2177)  The Supreme Court has clearly laid down in the above Decision that, - (1) Rate Payers have a legal right to demand the local authority to comply with its duty to observe statutory rights; (ii) there is a special interest in the performance of the duty, referrable to a Town Planning Scheme, which is for the benefit of the public and (iii) all the residents in the area have their personal interest in the performance of the above duty by the local authority and (iv) the special and substantial interest of the residents in the area is injured by the illegal construction.  "......... The Municipality acts for the public benefit in enforcing the Scheme. 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 the limits of the Municipal Committee. If under pretence of any authority, which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be in looked 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 

In M.I, Builders Private Limited v. Radhey Shyam Sahu and others, , their Lordships of the Supreme Court held that the permission granted by Mahapalika for construction of underground shopping complex in the place earmarked for park is violative of obligatory duty cast by Section 114 of UP. Municipal Corporation Adhinlyam (2 of 1959) on Mahapalika to maintain parks and also violative of public trust doctrine". The Supreme Court further said that "This Court in numerous decision has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering rule of law"... Their Lordships further held that “judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles".

In Consumer Action Group v. State of Tamilnadu, (2000) SCC 425, a Constitution Bench of the Supreme Court observed that sixty two orders granting exemption were issued by Government within 6 months in a arbitrary manner in violation of the Tamilnadu Town and Country Planning Act, 1971 (35 of 1972). In para 37 of the judgment, their Lordships held:  "Mere reading of this reveals administrative failure, regulatory inefficiency and laxity on the part of the authorities concerned being conceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and within staring eyes the Government feels helpless to let it pass; as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing the illegalities, which are writ large, no administrative action of demolition of such large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal, what not? Are the consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the welfare of the people to cater to public convenience, safety, health etc? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching coffers of the State resources but this gain is insignificant compared to the loss to the public. Before such pattern becomes cancerous and spreads to all parts of this country, it is high time that remedial measure was taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the laches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of the public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks etc. Such a pattern retards development, jeopardizes all purposeful plans of any city, and liquidates the expenditure incurred in such development process".

In PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD. AND ORS. v. STATE OF MAHARASHTRA AND ORS., the Supreme Court held that "We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire Country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed building."

In PEEKAY CONSTRUCTION v. CHANDRASEKHARA HEGDE, ILR 1989 KAR 249 @ 271 :  Supreme court held that  "The decision of the Queens Bench in Yabbicom v. King lays down the principle that approval of a plan contrary to the bye-laws of the Corporation does not entitle the builder to construct in violation bye-laws. The Corporation had no power legally to approve a plan which was not in accordance with the bye- law, the approval given by it was not an 'approval' at all." At page 275, the principles were stated thus: (1) The City Corporation is bound by the reservation of the sites for particular purposes under the Statutory Schemes;  (2) Sanction of the building plan by the Corporation, by itself, will not legalise the construction, if the construction is otherwise opposed to the scheme governing the area; (3) The residents of the area have a valid interest in the preservation of the area in the manner contemplated by the scheme or the plan governing the area; (4) The restriction as to the use of the particular land (or the site) is a beneficial covenant attached to other proximate sites and hence latter site owners can prevent the change of the land use by any one putting up constructions which are not contemplated by the scheme or plan governing the area; and (5) A site meant for a single dwelling house cannot be used to put up multiple dwelling houses in the guise of constructing a single building containing different flats or housing units."

K.K.GOVINADRAJU v. COMMISSIONER OF CORPORATION, a Bench of Supreme  Court pointed out that any licence or permission accorded in contravention of the ODP or the CDP, and the Zoning Regulation, would be void and it will not be a permission in the eye of law; from this it follows that if a licence had been issued in contravention of the ODP or the CDP it confers no right on the person who had secured the licence and consequently the authorities have not only the power but also are under a duty to rectify it or issue a fresh licence so as to bring it in conformity with, the ODP and the Zoning Regulation

In SHANTHA v. COMMISSIONER OF THE CORPORATION OF THE CITY OF BANGALORE, the Supreme court Bench upheld the locus standi of the neighbours to challenge the building licence granted contrary to the Zonal regulations. At page 1043, the Court held: "It must be emphasised that the Development Plan prepared under the Planning Act, 1961 would be for the benefit of the public. The Corporation authorities who are the trustees of the public interest must strictly observe the norms and conditions of the Development Plan. The authorities owe a duty to Rate Payers to protect the interest of the public, while administering the Planning law. They cannot afford to ignore the social responsibilities underlining the Planning law. They shall not favour an individual at the cost of the general public, and to the detriment of their interest. They shall never issue licence to construct building contrary to the Zoning Regulations. If they give licence to construct a building contrary to the permitted land use or contrary to the prevailing zoning regulations, they should be held responsible for their lapses. Indeed, they are accountable to the public when they act against the interest of the public. In such cases, when the Rate Payers approaches the Court complaining about the misuse or abuse of powers, by public authorities, the court cannot drive them away on technical grounds. It would be the duty of the courts to enforce the rule of law, enacted for the benefit of the public. It would be the duty of the courts to protect the rate payers' interest preserved under the Planning law."

TITAGHUR PAPER MILLS CO. LTD., AND ANR. v. STATE OF ORISSA AND ANR . Their Lordships of the Supreme Court have clearly laid down that "it is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." The Specific Relief Act provides such remedy. Section 91 of the Code of Civil Procedure provides that in case of special damage or loss even in case of public nuisance, the person can file a suit in his own right independently and seek proper relief.

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. Still later in Maddison v. Alderson, (1883) 8 App. 467, 52 LJQB 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 that Courts would not permit the statute to be made an instrument of fraud.

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.

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 v. Dacca Dt. Board, AIR 1928 Cal. 485. 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 unmetalled portion on each side any the less a public road or street. Municipal Board of Agra v. Sudarshan Das Shastri, AIR 1914 All. 341. 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 widdth 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."

Again, in 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. Reference be made to a decision given by the 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."

The judicial precedents support that the municipal authorities are under an obligation to not to permit any permanent or pakka constructions 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 Ors., 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. Vishwa Nath v. Sudhir Kumar Banerjee, AIR 1961 Cal. 389. The fact that  the public streets are to be kept free from encroachment was considered  in Pyarelal v. Sandal, 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 clause 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 a highway for carrying on business and so no bye-laws could be framed authorising the Municipality to do so."

Now coming to the decisions given by the Supreme Court of India. It may be seen that the view is consistent that the streets and public streets should be kept free from encroachment. 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 widdth 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."

Again in 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.

Thus not only pavements, verandahs, drains, but all open spaces in front of shops which are accessible to public vest in the municipal council. This vesting is for the purposes of seeing that the streets  are used as streets and are accessible to public without any obstruction. The term 'vest' was considered by the Supreme Court in  Fruit and Vegetables Merchants' Union v. Delhi Improvement Trust, AIR  1957 SC 344. It was held that the word Vest' has not got a fixed  connotation meaning in all cases that the property owned by the persons  or the authority in whom it vests it may vest in title or it may vest  in possession or it may vest in a limited sense as indicated in the  context in which it may have been used in a particular piece of  legislation.

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".

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".

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.

In the matter of  Sohan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988, the Supreme Court did not permit the plea of life and liberty to be raised, in the context, of carrying on trade or business on a public road. It is in this case that the Supreme Court also held that there can be no fundamental right of a citizen to occupy a particular place where he can squat and engage in trading business.

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.

The Hon'ble Apex Court has also in its recent judgment on provisions of Maharashtra Regional Town Planning Act in the case of Bombay Dyeing  and Manufacturing v. Bombay Environmental Action Group reported at 2006 (3) Scale 1, in para 113 observed that interpretation of town planning statute which has an environmental aspect leading to application of Articles 14 and 21 of the Constitution of India cannot be held to be within the exclusive domain of the executive.

In another judgment in Padma v. Hiralal Motilal Desarda reported at , the Hon'ble Apex Court has observed as under in paragraphs 31 and 32 ( of reported judgment in SCC):-- Laws dealing with development planning are indispensable to sanitation and healthy urbanization, Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. In the words of a well-known architect, development planning is the DNA of urbanization -the genetic code that determines what will get built. A development plan is essential to the aesthetics of urban society.

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. 

Hi,

Thanks for your reply..

in my case, there is a parallel main road. Can the government occupy my plot!.

The landlord formed an unauthorised private small layout on a revenue land leaving roads and he sold some of those sites. Later government formed a big main road crossing the small layout. Landload then removed some crossroads which he found unnecessary from his unauthorised private layout. One of the crossroads(20x40) made as a site and sold to me. Is this legally binding or any court citation in my favor.

Thanks.