MUNICIPAL COMMITTEE, KARNALversusNIRMALA DEVI

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A                   MUNICIPAL COMMITTEE, KARNAL
                                         v.
                                NIRMALA DEVI

                              NOVEMBER 24, 1995

B               [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

          Haryana Municipalities Act, 1973 : Sections 2(21)(23), 61(1)(g) and
    181(2).

C         Muni<;ipal Committee-Power to demolish encroachments-Public
    street-:{/nauthorised construction of shop on-Demolition-Award of
    damages fo1'-lleld illegal.

          Words & Phrases

D        'Street'-'Public street'-Meaning of~Sections 2(21) and 23-Haryana
    Municipalities Act, 1973.

           The respondent had constructed a shop on a portion of a public
    street. The appellant-Committee issued notice to the respondent calling
    him to demolish the shop. On respondent's failure to do so, the Committee
E   got the construction demolished. The respondent filed a suit claiming
    damages but the Trial Court dismissed the\ame. The Appellate Court
    reversed the decree of the Trial Court and granted damages of a sum of
    Rs. 20,000. The High Court affirmed the judgment of the first Appellate
    Court.

F        Allowing the Municipal Committee's appeal and setting aside the
    impugned judgment, this Court

           HELD: Under Section 61(1)(g) of the Haryana Municipalities Act,
    1973 every street which is a public street vests in the Municipal Committee.
G   If unauthorised construction is made by encroaching on its, after issuing
    the notice for demolition and service thereof, if the encroacher does not
    remove the same within the specified time, in addition to laying prosecu-
    tion for contravention of the provisions of the Act, the Municipal Commit-
    tee has power under section 181(2) to have the unauthorised
    encroachments and construction removed and. to recover the costs thereof
H   from him. Though the District Judge found that it is the private property
                                       674
               MUNICIPAL COMMITTEE v. NIRMALA DEVI                     675

of the respondent, in view of the fact that it is on a public street, by A
operation of section 2(21), even the private property which forms part of
public street, stands vested in the Municipal Committee. Thereby, the
Municipal Committee has the necessary power to have the unauthorised
construction removed and encroacher ejected. If the encroacher does not
voluntarily remove the unauthorised construction, the Municipal Commit-
                                                                           B
tee has power to have it removed by exercise of the power vested under
section 181(2) of the Act. Since the Committee has exercised the statutory
power, the award of damages is clearly illegal, unwarranted and unsus-
tainable. (677-G-H; 678-A-C]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11583 of              C
1995.

     From the Judgment and Order dated 27.1.94 of the Punjab &
Haryana High Court in R.S.A. No. 173 of 1994.

      Muni Lal Verma, S.K. Bagga, Ms. Tanuj Bagga and Mrs. S. Bagga           D
for the Appellant.

        Ujjagar Singh and Mrs. Naresh Bakshi for the Respondent.

        The following Order of the Court was delivered :
                                                                              E
        Leave granted.

      An· area admeasuring 4 ft. x 6-1/2 ft. situated in Chaura Bazar near
Rai Saheb Jogiwara, Karna! is claimed to belong to· the respondent. The
appellant asserted it to be part of public street. They found that the        F.
respondent had constructed a stop on the said portion of public street.
Consequently, they issued a notice, after inspection, for demolition of the
shop. Since the respondent did not demolish the shop, the appellant got
the construction demolished necessitating the respondent to file the suit
for damages. The Trial Court dismissed the suit by decree dated November
15, 1990. 9n appeal, the Additional District Judge by judgment and decree     G
dated October 29, 1993 reversed the decree of the Trial Court and granted
damages for a sum of Rs. 20,000. The High Court in Second Appeal No.
173/94 by order dated January 24, 1994 dismissed the appeal as usual in
limine, which in recent past is getting changed by giving reasons which one
hopes shall become a rule. Thus this appeal by special leave.                 H
    676                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A          The only question is whether the aforestated disputed area is a public
    street. Section 2(23) of the Haryana Municipalities Act, 1973 (for short,
    'the Act') defines "street" 'thus :

            "(23) "street" shall mean any road, footway, square, Court, public
            park, alley or passage, accessible, whether permanently or tem-
B           porarily to the public, and whether a thoroughfare of not; and shall
            include every vacant space notwithstanding that it may be private
            property and partly or wholly obstructed by any gate, post, chain
            or other barrier, if houses, shops or other buildings abut thereon,
            and if it is used by any persons as a means of access to or from
c           any public place or throughfare, whether such persons be oc-
            cupiers of such buildings or not, but shall not include any part of
            such space which the occupier of any such building has a right at
            all hours to prevent all other persons from using as aforesaid; and
            shall include also the drains or gutters therein, or on either side,
            and the land, whether covered or not by any pavement, verandah
D           or other erection, up to the boundary of any abutting property not
            accessible to the public ;

            Section 2(21) defines "public street" thus :

            "(21) "public street" shall mean any .street -
E
            (i) heretofore levelled, paved, mettalled, channelled, sewered or
            repaired out of municipal or other public funds; unless before such
            work was carried out, there was an agreement with the proprietor
            that the street should not thereby become a public street, or unless
            such work was done without the implied or express consent of the
F
            proprietor, or

            (ii) which, under the provisions of section 180, is declared by the
            committee to be, or under any other provision of this Act becomes,
            a public street;
G
         Under section 61 (l)(g) of the Act, all public streets vested in the
    Municipal Committee which records thus :

            "61. Property vested in committee - (lr) Subject to any special
            reserVation made or to any special conditions imposed by the State
H           Government, all property of the nature hereinafter in this section
             MUNICIPAL COMMITTEE v. NIRMALA DEVI                     677

        specified and situated within the municipality shall vest in and be A
        under the control of the committee, and with all other property
        which has already vested or may hereafter vest in the committee,
        shall be held and applied by it for the purposes of this Act, that
        is to say, -

           x x x x x x x x x x x x x x x x x                                B
        (g) all public streets, not being land owned by the State Govern-
        ment, and the pavements, stones and other materials thereof, and
        also trees growing on, and erections, materials implements, and
        things provided for, such streets."                                 c
     Section 181 of the Act gives power to lay prosecution for encroach-
ment on any street etc. Sub-section (2) of section 181 gives power to
demolish the unauthorised construction thus :

         "(2) Without prejudice to the provision of sub-section (1), the D
        Committee may, by notice, call upon any person who has com-
        mitted a breach of the provisions contained in the said sub- section,
        to stop the unauthorised construction forthwith and to remove or
        alter such immovable encroachment or overhanging structure as
        aforesaid within a period of seven days and if such person fails to E
        show cause to the satisfaction of the Committee or the Chief
        Executive Officer or any person authorised by it or him shall
        proceed to remove the unauthorised construction and the costs of
        such removal shall be recovered from the defaulter. If the defaulter
        fails to pay the cost of removal or unauthorised construction on
        demand within fifteen days, the costs shall be recoverable from F
        such person as arrears of land revenue and the Committee may
        also disconnect the water supply and sewerage connections, as it
        may deem fit."

      It would thus be clear that every street which is a public street vests
in the Municipal Committee. If unauthorised construction is made by .G
encroaching on it, after issuing the notice for demolition and service
thereof, if the encroacher does not remove the same within the specified
time, in addition to laying prosecution for contravention of the provisions
of the Act, the Municipal Committee has power to have the unauthorised
encroachments and construction removed and to recover the costs thereof H
    678                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A from him. It is seen that notice was in fact given to the respondent for
  removal of the construction. When the husband of the respondent was
  examined, he admitted that he constructed the shop after the purchase.
  Though the District Judge found that it is the private property of the
  respondent, in view of the fact that it is on a public street, by operation of
  section 3(21), even the private property which forms part of public street,
B stands vested in the Municipal Committee. Thereby, the Municipal Com-
                                                                                   -
  mittee has necessary power to have the unauthorised construction removed
  and encroacher ejected. If the encroacher does not voluntarily remove the
  unauthorised construction, the Municipal Committee has power to have it
  removed by exercise of the power vested under section 181(2) of the Act.
C Since the Committee has exercised the statutory power, the award of
  damages is clearly illegal, unwarranted and unsustainable.

          The appeal is accordingly allowed. The judgment and decree of the
    appellate Court as confirmed by the High Court stands set aside and that
    of the Trial Court stands confirmed. But in the circumstances, no order as
D   to costs in this Court and the appellate Court.

    T.N.A.                                                     Appeal allowed.