Supreme Court of India
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS.versusSHIRDI NAGAR PANCHAYAT & ANR.
- Citation
- 2016 INSC 197
- Decided
- 22 February 2016
- Disposal
- Dismissed
- Bench
- V GOPALA GOWDA
Holding
The Court held that the 1979 compromise decree is rendered inexecutable due to intervening public‑interest development plans and statutory provisions, and consequently the appellants must be rehabilitated on an alternative site or, if none is found, be paid the prescribed monetary compensation.
Summary
The appellants, small‑scale shopkeepers near the Shirdi Sai Baba shrine, had a 1979 compromise decree granting them rehabilitation on their occupied plots. Subsequent town‑planning, development‑plan and highway‑control‑line notifications rendered the decree practically impossible to execute, prompting the Nagar Panchayat to issue a notice for removal of the shops. The Supreme Court examined whether the decree remained enforceable, whether the shopkeepers were encroachers, and the extent of the municipal authority under the Maharashtra Municipal Councils Act, the Town Planning Act and the Highways Act. It held that the decree was rendered inexecutable by supervening public‑interest considerations and statutory schemes, and therefore the appellants must be either rehabilitated on an alternative site or compensated. The State and the Shri Sai Baba Sansthan were directed to locate a suitable site; failing that, they must pay lump‑sum compensation of Rs 20 lakhs for larger shops and Rs 15 lakhs for smaller ones. The appeals were dismissed.
Issues considered
- The 1979 compromise decree is still executable despite later development plans and highway control line regulations.
- Whether the appellants are unlawful encroachers or lawful occupants under the decree.
- The statutory authority of the Nagar Panchayat/Municipal Council to issue removal notices under the Maharashtra Municipal Councils Act, 1965, the Town Planning Act, 1966 and the Highways Act, 1955.
- The entitlement of the appellants to rehabilitation versus monetary compensation under Article 300A of the Constitution.
- Whether public interest and the need for road widening and development outweigh the private rights of the shopkeepers.
Legislation cited
- Bombay Highways Act, 1955s. 2(f), s. 2(i), s. 3, s. 7, s. 73, s. 9
- Constitution of Indias. Art. 300A
- Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965s. 179, s. 180, s. 187, s. 189
- Maharashtra Regional and Town Planning Act, 1966s. 42, s. 45, s. 52, s. 53, s. 56
Subjects
town planningencroachmentpublic interestrehabilitationmonetary compensationArticle 300Apublic trust doctrinedevelopment planmunicipal lawhighway control line
Judgment
[2016) 11 S.C.R. 476
A SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS.
v.
SHIRDI NAGAR PANCHAYAT & ANR.
(Civil Appeal No. 14016 of2015)
B FEBRUARY 22, 2016
[V. GOPALA GOWDA AND AMITAVA ROY, JJ.]
Town Planning - Encroachment - Eviction of occupants -
Rehabilitation I grant of monetary compensation - Internationally
c revered seat. of Shirdi Sai Baba at Shirdi in the State of
Maharashtra - Appellants, small scale shopkeepers located in the
vicinity of Shirdi shrine, facing ouster from their shops - Suit filed
by them had been decreed on compromise in the year 1979, securing
their right of rehabilitation in the same locality - Decree however
was construed to be inexecutable by intervening developments -
D Fresh rounds of confrontations - Consecutive adjudications
affirmed the displacement of appellants by acknowledging the
·mandate of the relevant Town Planning and Municipal Laws and
the overriding public interest - Held: The emerging situation is one
where private interest is pitted against public interest - Consequence
of the appellants being uprooted from their present sites of business,
E
would spell an overall dislocation in their lives - That many or all
of them have buildings elsewhere in the locality, assessed to
municipal tax, cannot fully neutralize this fallout - Appellants have
been conducting their business at the present sites for over 45 years
and over the time, h.aJ'.e built up the same with accompanying goodwill
F and reputation - Nevertlieless for the cause of paramount public
interest, their eviction is unavoidable - In this premise, the State
and its functionaries directed to identify a siiitable site to
accommodate the appellants - However, in case alternative plot/
site is notfeasible, the appellants would then be entitled to a
lumpsum monetary compensation of Rs.20 lakhs each/or the bigger
G
shops/stalls and Rs.15 lakhs each for the smaller shops/stalls :-
Maharashtra Regional and Town Planning Act, 1966 - Bombay
Highways Act, 1955 - Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 - Constitution of
India - Art. 300A.
H
476
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 477
SHIRD! NAGAR PANCHAYAT & ANR.
Doctrines I Principles - Public trust doctrine - "res A
communious" - Private interest vis public interest - Held: The notion
of public interest synonymises colleetive welfare of the people and
public institutions - Perceptionally health, law and order, peace,
security and a clean environment are some of the areas of public
and collective good where private rights.being in conflict therewith
has to take a back seat- Maxims - "Salus Populi Est._Suprema Lex".
Dismissing the appeals, the Court -
HELD:l. Both the appellants and the respondents/ .
defendants have to share the blame of leaving the compromise
decree unexecuted for over a decade whereafter fresh rounds of c
confrontations surfaced leading to the present situation. Be that
·as it may, though there has been no determinance of the
appellants' right, title and interest in the land, except ·that they
are admittedly in continuous possessiort since the year 1970 and
carrying on their business there, understandably, over the years,
they have settled themselves in their plots and are earning their D
livelihood from the income of the business dealings. Though the
. build up of facts, since the compromise dec_ree cannot lre
discarded, the contemplated measures .of the responde1,1ts, to
clear the area of the encroachments in public interest and for its
overall development, would' result in the displacement of the E
appellants as a compelling necessity. As a corollary, they-.have to
be essentially rehabilitated or adequately compensated bearing
· in mind, the impact of the passage of time on the relevant
perspectives since the date of the compromise decree. [Para 54]
[502-H; 503-A-C]
F
Mis. Laxmi & Co. v. Dr. Anant R. Deshpande & Another
(1973) 1 SCC 37 : 1973 (2) SCR 172; Dhurandhar
Prasad Singh v. Jai Prakash University and Others
(2001) 6 SCC 534 : 2001 (3) SCR 1129; Ar1111 Lal and
Others v. (Jn ion of India and Others (20IOr 14 SCC
384 : 2010 (13) SCR 1176 - referredllJ; · G
2. The-emerging situation is one where private interest is
pitted against public- interest. The notion of public interest
synonymises_ collective welfare of the people and public
institutions and is generally informed with tbe ~ictates of public
H
478 SUPREME COURT REPORTS [2016] 11 S.C.R.
A trust doctrine - res communious i.e. by everyone in common.
Perceptionally health, law and order, peace, security and a clean
environment are some of the areas of public and collective good
where private rights being in conflict therewith has to take a back
seat. The latin maxim "Salus Populi-EM-Suprema Lex" connotes
that health, safety and welfare of the public is the supreme in
B·
law. The demand of 'public interest, in the facts of the instant
case, thus deserve precedence. [Paras 55, 56] [503-D-E, G]
"A Selection of Legal Maxims" by Herbert Broom -
referred to.
<-
c 3. The consequence of the appellants being uprooted from·
their present sites of business, however, would spell an overall
dislocation in their lives. That many or all of them have buildings
elsewhere in the locality, assessed to municipal tax, cannot fully
neutralize this fallout. The appellants have been conducting their
business at the present sites for over 45 years and u1.1,_derstandably
D over the time, have built up the.same with accompanying goodwill
· and reputation. Their eviction would assnre<Jly eventuate a human
problem. Nevertheless for the cause of paramount. public interest,
their eviction is unavoidable. ·[Para· 61] [506-F-H] · ··
4.1. In this precipitable eventuality, il realistic balance of
E the attendant exigencies is the clarion call of justice. In this
premise, having regard to the ensuing consequ,ences qua the
appellants, to start
, with, the State and its functionaries are directed
to undertake, ~n exercise to identify a suitable site to
accommodate the appellants. Even if such a site is not available
F in the immediate proximity .of the land presently in their
occupation, a sincere endeavour would be made to locate a plot
· as· near as possible .thereto. The District Administration in
coordination with the Sansthan and. other authorities, as deemed
necessary in law, would undertake the process. The appellants
·would also cooperate in th~ pursuit and would not delay the
.G completion thereof. [Para 62] [507"A~q . .
4.2. However, in case the endeavour to identify an
alternative plot does not yield any result inspite of sincere efforts,
the appellants would then be entitled to adequate monetary·
compensation. [Para 63] (507-D]
H
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 479
SHIRD! NAGAR PANCHAYAT & ANR.
4.3. It is a matter of record that the ap(lellants occupy two A
categories of plots i.e. 16' x 11' and 7' x 11', where trade/business
· is being carried on. Though monetary compensation, ipso facto,.
on a consideration <?f all attendant factors may not be an exact
substitute of the benefits presently enjoyed with the future
prospects, having regard to the permissible ponderables and also
B
the passage of time in betWeen, a lump Sl!m of Rs. 20 lakhs and
Rs. 15 lakhs each respectively for the bigger and smaller shops/
stalls, would be a 'reasonable palliative to the appellants. The
compCflsation, as indicated hereina~ove, woul~ be payable to the
appellants only if an alternative site is l!Ot feasible. The entire.
process on both counts, hqwever
. -
should
. .
be completed
. wjthin a
.--'- c
period of six weeks. The State Government and-the Shri Sai Baba
Sansthan, Shirdi would bear the amount ofcompensation, payable
in equal shares and would deposit the same in the Bombay High
Court within the period of six weeks aforementioned.: [Para 64)
(507-E-H)
.. ' D
K.T. Plantation Private Limited a~d Another'v. State of
Karnataka (2011) 9 SCC 1 : 2011 (8) SCR 725; Olga
. Tellis & Others v. B01i1bay Municipal Corporation and.
Others. (1985) 3 SCC 545 : 1985 (2) Suppl. sCR 51;
Tukaram Kana Joshi and Others· v. Maharashtra
Industrial Development Corporation and Other~ '(2013) E
i SCC 35.3 : 2012 (13) .SCR 29; and K. Krishnp Reddy
v. Special Deputy Collector (1988) 4 -sec 163 : 1988
(2) S,!lppl. SCR 853 - referred to.
Case Law Reference
F
1973 (2) SCR 172 referred to Para25
2001 (3) SCR 1129 referred to Para 25
2010 (13) SCR 1176 referred to Para 25
2011 (8) SCR 725 referred to Para 57
1985 (2) Suppl. SCR 51 . referred to Para 58 G
.2012 (13) SCR 29 referred to - Para"59
1988-(2) Suppl. SCR 853 referred to Para 59
CIVIL APPELLATE JUJUSDICTION': CIVIL APPEAL No.
14016 OF 2015.
H
480 SUPREME COURT REPORTS [2016) 11 S.C.R,
A From the Judgment and Order dated 06.11.2012 of the High Court
of Judicature of Bombay Bench at Aurangabad in Writ Petition No.
8032 of2012.
WITH
C. A. NOS. 3154, 3155-3157, 3158 OF 2011
B
C. A. NO. 14017 OF 2015.
Siddharth Luthra, Sr. Adv., Anoopam Prasad, Mohit Kumar Gupta,
Sachin- Kulkarnee, Ms. Vasundhara V, Ms. Manju Jetley, Arvind S.
Avhad, V. K. Sidharthan, Dr. Kailash Chand, Advs. for the Appellants.
c Shekhar Naphade, Arvind V. Savant, Sr. Advs., Sanjya Kharde,
Sunil Kumar Verma, Arun R. Pedneker, Preshit Surshe, Sunil Kumar
Verma, Venkata Krishna Kunduru, Nishant R. Katneshwarkar,
Aniruddha P. Mayee, Amo! Nirmal Kumar Suryawanshi, Ms. Chandan
Ramamurthi, Advs. for the Respondents.
D
The Judgment of the Court was delivered by
AMITAVA ROY, J. - I. The appellants, ostensibly small scale
shopkeepers located in the vicinity of the internationally revered seat of
Shirdi Sai Baba at Shirdi Taluq, Rohata, District Ahmadnagar,
E Maharashtra, face ouster from their sites, being entrapped in the dictates
of events since after their suit had been decreed on compromise in the -
year 1979, securing their right of rehabilitation in the same locality.
2. The contextual facts encompass the issues in all the appeals
and permit analogous adjudication.
F 3. The five appeals impeach the consecutive adjudications in
sequential phases affirming the displacement of the appellants by
ackllowledging the mandate of the relevant Town Planning and Municipal
Laws and the overriding public foterest as perceived, their decree bein-g
construed to have been rendered inexecutable by the intervening
G developments. Their possession, however remairrs ·protected by the
-interim order of status-quo granted by the High Court and continued in
the instant proceedings subject to the liberty granted to the respondent~
_Shirdi Nagar_ Panchayat (for short, hereinafter to be referred to as
"Nagar Panchayat/Municipal Council") to take any action in accordance
with law, in connection with the widening of the concerned road or removal
H.
SAYYED ~TANBHAI SAYEED (D) TH. LRS. & ORS. v. 481
SHIRDI NAGAR PANCHAYAT & ANR. [AMlTAVA ROY, J.]
ofencroachments, in terms of the order dated 13.12.20 I 0 passed in SLP A
(C) Nos. 27988 of2010, 29683-29685 of2010 and 28235 of2010.
4. We have heard Mr. Siddharth Luthra, learned senior counsel
for the appellants, Mr. Shekhar Naphade, learned senior counsel for the
Nagar Panchayat/Municipal Council and the }earned counsel for the
State. 8
5. The genesis of the eventful factual background is traceable to
a one time small village named Shirdi with minuscule population. It rose
to fame and eminence in view of the shrine of Sage Sai Baba, viewed as
a mortal incarnation of the divine and with time became a pilgrimage
centre of worldwide following. Having regard to the increasing number c
of devotees thronging for offering oblations, small shops grew around
the temple, catering to the essentials of the worshippe¥s for their offerings
and also their refreshments and conveniences.
6. The plot involved contained in Survey No. I, Hissa No. I A II
. JA/282 ofShirdi Takula Kopargaon, DistrictAhmednagar and situated D
near the Sanctum Sanctorum adjacent to Nagar Manmad Road, prior to
30.8.1974, vested in the then Shirdi Gram Panchayat, which had leased
out small parcels of land therefrom to the appellants on rent for carrying
on their trades. The land was taken over by the State through the Circle
Officer, Rahata on 30.8.1974 and as a consequence, though the appellants
were ready and willing to pay the tent, the same was not collected from
November, 1974. Accorcling to them, though by operation oflaw, they
continued to be the tenants under the State Government and were entitled
to retain their possession as before, it transpired with time, as visualised
by them, that joint efforts were on, of the official respondents and the
respondent- Shri Sai Baba Sansthan, Shirdi (for short, hereinafter to be F
referred to as "Simsthan") to forcibly evict them from their plot measuring
30 gunthas.
7. Situated thus and being faced with imminent loss of their only
means of livelihood, the appellants instituted Regular Civil Suit No. 600
of 1976, in a representative capacity, on beh~ifof 45 shopkeepers similarly G
situated, in the court ofclvil Judge (Sr. Division), Ahmednagar seeking
a declaration that they were lawful tenants of the parcels in their
occupation and also for permanent injunction restraining the defendants
therein from taking over possession of the same, otherwise than in due
course of law. The State of Maharashtra (Revenue Department),
H
482 SUPREME COURT REPORTS [2016] 11 S.C.R.
A Tehsildar, Kopargaon, DistrictAhmednagar and Shri Saibaba Sansthan
Shirdi, Shirdi, Tai Kopargaon were impleaded as defendants. The
averments made in the suit would demonstrate that the appellants then
had been possessing premises of sizes ranging from 10' x 712' and 12'
. x 12'.
B 8. Th.e suit eventually got decreed on compromise on 20.8.1979.
As the contents of the order recording the compromise would attest, out
of I 01 shops mentioned in schedule 'A' of the suit, which had been
taken over by the State Government from the Panchayat and handed
over to the Sansthan, 45 shops in occupation of the appellants were
marked in Schedule 'B ', which in terms of the compromise were to
c remain thereon. Qua the remaining 56 shops, the Government was to
provide accommodation in the land in Survey No. 170. Under the
compromise, it was agreed thafthe Sansthan would construct shops
measuring 16' x 11" (hotel) and 7' x 11' (flower, Prasad, photo etc.) in
terms of the site plan that was accepted by the parties. The Sansthan
D was to start the construction of the building on the land in occupation of
the appellants and to complete the same within one year from taking
possession thereof. It was agreed in categorical terms that during the
period of construction, the 45 shops of the appellants would have to be
temporarily accommodated in the triangular plot located towards the
west of the proposed building as shown in the map/plan. The Sansthan
E was obliged in terms of the compromise deed, to accommodate the-45
shopkeepers in the said triangular plot before starting the construction of
the prcwosed building. The appellants were also under an obligation to
move to the said plot without any objection spas to enable the Sansthan
to initiate the construction for the proposed bui !ding. As further agreed,
F 31 shopkeepers of the remaining 56 shops were to be accommodated in
the existing equal number of shops constructed by1he Sansthan in the·
land of Survey No. 170 on the western side of the Nagar Kopargaon
Road and that the allotment was to be made on the basis of lottery. The
remaining 25 shopkeepers, after such allotment, were also to be provided
space in the land of the same survey number by resorting to lottery.
G Under the compromise, after the completion of the construction of the
shops, the allotments were to be made by lottery system to the 45
shopkeepers i.e. the appellants. The triangular space in which the
appellants were to be temporarily rehabilitated was clearly identified by
the parties. The rate of rent to be paid by them and the other stipulations
H
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 483
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
pertaining to the continuing lease were also enumerated in the A
compromise. Resultantly, a decree was passed by the trial court in the
same terms on 20.8.1979. The said decree has since remain unchallenged
and is thus final and binding on the parties.
9. Years that rolled by thereafter witnessed a passive and inert
disposition of both the parties, visibly reconciled to the existing and B
continuing state of affairs. Undisputedly, the Sansthan did neither arrange
for the accommodation of the appellants in the triangular plot as agreed
upon nor did take any initiative for the construction of the shopping
complex at the site oC"cupied by them'. It was as lat~ as on 19.2.1990,
that the Saristhan did file an execution petition before the trial court
alleging that the appellants/decree-holders had not handed over the suit
c
site to it to enable the constructional activities. The appellants too, in
response, filed an.execution petition being R.D. No. 5of1990, accusing
therespondents of their negligent and irresponsible inaction and failure
to comply with the decree.
10. While the matter rested at that, a "Development Plan" ofShirdi D
was sanctioned by Notification No. D.P. Shirdi/TPV-IV/7334 dated
15 .12.1992 of the Director of Town Planning, Maharashtra State, Pune
(hereinafter referred to as the development plan) and enforced it on and
from 25.2.1993. Thereby an area of30 gunthas identified as site No. 13
in Survey No. 1 (as involved in the instant proceedings) was shown to E
be reserved for garden. As the records testify, by Notification No. TPS-
1695/996/CR-83/97/UD-9 dated 27.3.2003 of the Urban Development
Department, Government of Maharashtra, this 30 gunthas ofland in site
No. 13 was bifurcated into two equal parts, northern half measuring 15
gunthas, shown reserved for "Garden" as site No. I 3A and the remaining
·southern half of 15.gunthas shown as reserved for "Shopping Centre" F
as site No. 13B. The notification mentioned that the modification was
in terms of the proposal submitted by the Nagar Panchayat which had
since been upgraded as Municipal Council by the State Gazette
Notification dated 16.6.1999. The Notification also clarified that the
Nagar Panchayat in !aying such proposal, had complied with the formalities G
to this effect a£ stipulated by the Maharashtra Regional and Town
Planning Act, 1966 (for short, hereinafter to be referred to as "Act 1966")
and was approved by the Director ofTown Planning, Maharashtra State,
Pune. In terms of this reorientation,the appellants were in occupation
of plot No. I 3A; as referred to in the above Notification.
H
484 SUPREME COURT REPORTS f20161 II S.C.R.
A 11. In 'the meantime, at the instance of the Nagar Panchayat, the
shops constructed by it on the government land, Survey No. 170 were
demolished. Consequently, the arrangement of adjusting 31 shopkeepers
out of 56 batch did not fructify. The others were also not allotted any
open plot by drawing lots as was contemplated in the compromise decree.
As the flow of events would testify, the Executing Court on 19 .12.2003
B
directed maintenance of status-quo of the subject matter of the execution
proceedings in view of the ongoing demolition drive resorted to by the
State and the apprehension expressed by the appellants to suffer the
same fate. Eventually, the Executing Court by order dated 21.5 .2004
rendered in RD No. 5 of 1990, held that the compromise decree was
c binding and executable, the facts in the interregnum notwithstanding and
that the defendants/judgment debtors were bound to provide temporary
accommodation to the appellants till completion of the ~onstruc;tion work
in the suit land and consequently restrained them i.e. the defendants/
judgment debtors from removing or demolishing the shops ofthe appellants
D till their temporary adjustment in the triangular plot in terms ofthe decree.
12. This view was taken notwithstanding the plea on behalf of the
defendants/judgment debtors, that in the face of the development plan
and also the proposed widening of the adjacent Palkhi Road within the
limits of the Nagar Panchayat, for which a process was afoot for
acquisition ofland and the overall developmental activities in the area to
E meet 'the heavy rush of devotees, their convenience and safety, the decree
had become inexecutable with time.
13. Being aggrieved, the State of Maharashtra filed Writ Petition
(C) No. 5839 of2004 in which the Tehsildar, Rahata in his affidavit-in-
rejoinder did aver that the land at site No. 13 was vested in the State
F Government and that the Nagar Panchayat had no authority to develop
the same without its approval and permission. Be that as it may, by
order dated 31.7.2007, the High Court remanded the matter for fresh
consideration by the Executing Court, by setting-aside the order dated
21.5.2004 granting injunction to the appellants. The Executing Court
G following the remand, vide order dated 9 .3 .2009, returned a finding that
the decree had become inexecutable in the face of the irreversible
intervening events. After an exhaustive evaluation of the evidence, both
oral and documentary, as adduced before it, it held that in view of the
Shirdi town development plan, as well as the precepts of the Bombay
Highways Act, 1955 (for short, hereinafter to be referred to as "Highways
H Act") prescribing, inter alia, the margin of clearance of the control line
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 485
SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
as well as the relevant provisions of the Maharashtra Municipal Councils, A
Nagar Panchayats and Industrial Townships Act, 1965 (for short,
hereinafter to be referre~ to as "Act 1965") as well as Act 1966. along ·
with the initiatives taken in· terms thereof, the decree had become
inexecutable. It underlined as well that with the phenomenal rise i.n the
number of devotees to the temple and the consequential mounting
B
challenges to the administration like congestion, traffic jams etc. and the
accompanying aspects of safety and security of the visiting worshippers
in particular and the public in general, it was not feasible to construct a
shopping complex as earlier comprehended. On the other hand, it was
essential in public interest to implement the development plan which
included, ~mongst others, widening of the adjacent Palkhi Road by c
removing encroachments thereon as.reported. It noticed as well that
the triangular plot as well as the site earmarked for the shopping complex
did come within the prohibited zone of the control line prescribed by the
Highways Act for which no copstruction thereon was permissible as
envisl!ged by the compromise de.:ree.
D
14. Being highly aggrieved by this determination, the appellants in
batches, filed writ proceedings before the High Court which after an
elaborate analysis of the run up of facts concluded that in the singular
attendant facts, the decree had become inexecutable on account of the
failure of both the parties to perform their mutual obligations. The High
Court, howevervide order dated 5.7.2010 in categorical terms held that E
the appellants were neither encroachers nor intruders on the land in
occupation. It also noticed that meanwhile the Sansthan had deposited
approximately Rs. 3 crores for acquisition of land by the State
Government, to shift the shopkeepers from the proximity of the temple
to facilitate the implementation.of the development work and at the same F
time rehabilitate them to the extent possible. The High Court-with a
view to strike·a balaRce between the two competing interests and also
to ensure that the shopkeepers are suitably compensated directed, as a
rough and ready measure to grant compensation to the shopkeepers @
Rs. 3 lakhs each to those having bigger shops like Hotel, sweet-meat
shops etc.) and Rs. 2 lakhs each to those of smaller shops i.e .. Flower G
Vendors, Essence Vendors etc. The State as well as the Sansthan were
directed to bear the amount of 'compensation in equal shares to be
deposited within a period of six months. In computing the rate of
compensation, the High Court also took note of the sizes of the two
categories of shops, 16' x 16' (big) and 7' x 11' (small). H
486 SUPREME COURT REPORTS [2016] 11 S.C.R.
A 15. Though an appeal was preferred against this verdict, it was
eventually withdrawn, whereafter C.A. No. 3154 of 2011 had been
instituted before this Court. It is worthwhile to record that this Court by
order dated 1.10.2010 directed maintenance of status-quo. Subsequent -
thereto, by order dated 18.10.20 JO, the Sansthan as well as the State
Government were required to explore the possibility of identifying a
B
suitable alternative plot even away from the existing plot, for the purpose
of construc;tion of shops for the.appellants without prejudice to their
contentions. While noticing that meanwhile, the Sansthan had deposited
a sum of Rs. 2.19 crores in terms of the order of the High Court dated·
5.7.2010, it extended the interim protection earlier granted. ~y order
c dated 13.12.20 l 0 however, this Court responding to the submissions made
on behalf of the Shirdi Municipal Council to the effect that it was not a
party to the COll)p~omise decree and that the interim order was acting
as an impediment for its initiatives to widen the road and to remove the
encroachments in accordance with law, clarified that the order of status
D quo had been granted vis-a-vis the Sansthan and the State Government
and that ifthe Municipal Councitdecided to take any action in accordance
with law for the purpose of wicte_ning of road or removal of
encroachments, the same (interim order) would not come in the way of
such action being taken in accordance with law. Later, by order dated
28.2.2011, the order of status-quo was allowectto continue subject to the
E clarification as above.
16. Following this clarification, as aforestated, the Nagar
Panchayat issued a public notice being Outward No. NP/Co1'lst/KV-l l/
75/2011 dated 11.4.2001 under Sections 42, 45, 52 and 53 of Act 1966
and under Sections J 79,180,187 and 189 ofAct 1965 being one directed
F to the 45 shopkeepers in Schedule 'B' in R.D. No. 5 of 1990 i.e. the
appellants, intimating them that their sheds on the land referred to therein
were illegal constructions used for business purposes. Referring also to
the orders dated 13.12.2010 and 28.2.2011 passed by this Court as
above, permitting the Nagar Panchayat to pursue its initiatives for removal
of encroachments and widening of road in accordance with law, it was
G elaborated further that the shops of the appellants, in terms of the reports
submitted by the Deputy Director, Town Planning Department, Nasik,
pursuant to the order of the High Court in W.P. (C) No. 583 of 2004,
were coming within 9 meters of the Palkhi Road. It was mentioned as
well, that the constructions of the appellants were intruding on the fifteen
H meters wide road towards the temple and for this, the development scheme
SAYYED RATANBHAI·SAYEED (D) TH. LRS. & ORS. v. 487
SHlRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
of the road could not be implemented. It was highlighted that in view of A
such impediments, the devotees and the public at large were being
seriousJy inconvenienced, ~hile tl\king the N agar Manmad Road towards
the temple. While stating as well, that the plot No. 13A, in terms of the
development scheme, was reserved for garden and thatthe construction
of the appellants have adversely impacted upon the said scheme, it was
8
underlined as well that encroachments by them, were also within 37 ·
meters from the centre of the State Highway No. I 0, Nagar Manmad
Road, in violation of the construction line and control line. The notice
specified that commercial use ofland within the said zone was prohibited.
The appellants were called upon thereby, to remove the illegal and
unauthorized constructions in violation of the provisions of Act 1965 and c
Act 1966 within 30 days of the receipt of the notice failing which it was
conveyed, that the same would be demolished by the Nagar Panchayat..
17. The appellants against this notice filed a suit being RCS No.
139 of2011 in the court of Civil Judge (Sr. Division), Kopergaon, seeking
annulment thereof and perpetual injunction against the Nagar Panchayat D
and the State as defendants. The prayerfor temporary injunction though
refused by the trial court, the appeal before the District Judge-II was
allowed and by order dated 11.5.2011, the Nagar Panchayat was
restrained, by an ad-interim injunction from interfering with the.appellants'
possession of the suit property.
E
18. The Nagaf Panchayat in its tum approached the High Court
with a writ petition in which by order dated 9.6.2011, the order of ad-
interim injunction was maintained but the trial court was directed to decide
the applicatiofffor injunctio!1 on its' own merits within a period of one
. month. The trial court by order·dated 17.10.2011 rejected the application
for temporary injunction.holding that the· appellants had failed to establish F
a prima facie.case or balance of convenience in their favour though
irreparable loss was not unlikely. The appeal filed by the appellants
against this detennination failed on_25.9.2012. The First Appellate Court
in dismissing the same took note, inter alia, of the pendency of the C.A.
No. 3154 of 2011 on the related issues and observed that to decide the G
same, evidence would be necessary and required the trial court, to address
the same accordingly.
19. Being aggrieved, the appellants turned to the High Court again
with W.P. (C) No. 8032 of2012, impeaching the orders of the courts
below declining interim injunction and also seeking a restraint on the H
488 SUPREME COURT REPORTS [2016111 S.C.R.
A Nagar Panchayat and the State by interdicting them from demolishing
their shops and from interfering with ·their peaceful possession of the
suit property.
20. The High Court, by the decision impugned in Civil Appeal No.
14016of2015, on a survey of the entire conspectus of faets, did reiterate
B that the appellants were not encroachers on their land in their occupation
and that their entry thereupon was legal: While recording that they had
been occupying the same with their small shops/kiosks since 1970, it
was, however noted that the decree with time 'had become inexecutable.
It also recorded that meanwhile, the development plan of the Shirdi Town
had been notified on 15.12.1992 and that the suit site No. 13A had been
c reserved for 'garden' and 138 for 'shopping complex'. It was noticed
as well that, the appellants' shops were located on site No. 13A. While
tracing the litigational route and the findings recorded in the earlier
proceedings, based on contemporaneous records and noticing the fact
that the area comes within the control line and that in terms of the
D development plan, no construction can be allowed on the site reserved
for 'Garden', the High Court declined to protect the appellants' structures.
It held that the Nagar Parichayat/Municipal Council, was a planning
authority entrusted with the statutory duty to implement the development
plan and recalled that in the earlier proceedings, directions had been
issued to the State Government and the Sansthan to pay compensation
E for their eventual ouster. That this Court by order dated 13.12.20 I 0 had
granted liberty to the Municipal Council to proceed with its project of
wide,ning the road and clear the encroachments in accordance with law
was referred to as well.
21. Section 56 of the Act 1966 was adverted to also to record that
F the same empowered the planning authority to direct discontinuance of
a particular use ofland or any building or order removal thereof, having
regard to the development plan, if construed to be expedient in the interest
of proper planning. That the steps contemplated to widen_ the Ahmad
Na gar Manmad Highway No. 10 and also the roads leading to the temple
were in public interest was emphasized. It was thus concluded that the
G
impugned notice had been issued for removal of the structures of the
appellants to espouse a public cause. While dismissing the petition, the
Nagar Panchayat/Municipal Council was restrained from evicting the
appellants for a period of three months.
22. In the above chequered and contentious backdrop, Mr. Luthra
H has assertively argued that the compromise decree dated 20.8.1979 being
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 489
SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
final and binding on the parties, the appellants have a vested right to A
continue at their sites and thus the contemplated action of evicting them
therefrom on the purported plea of intervening events, is palpably illegal
and unauthorized besides being unreasonable, unfair and unjust. As on
the date of the decree, as well as when the execution thereof was applied
for in the year 1990, neither the development plan nor the control line
B
under the Highways Act was in existence, the defence of inexecutability
thereof is fallacious and the finding to the contrary recorded in the earlier
proceedings is patently unsustainable in law and on facts, he urged.·
Learned senior counsel argued that the notification contemplating the
control line and the development plan being dated 9.3.2001 and 27.3.2003
respectively, these subsequent prescriptions, though statutorily endorsed c
cannot be invoked with retrospe9jive effect, thereby rendering the
compromise decre.e passed more than two decades prior thereto and
the rights conferred thereby, non est. Tliis is more so as the respond~nts/
defendants in the suit had undertaken-in terms of the accepted site plan,
to rehabilitate the appellants in the proposed shopping complex in
D
recognition of their rights as lawful tenants of_th~plo1s in their occup~tion,
he maintained. Mr. Luthra insisted, that as concurrently held in the
earlier proceedings, the appellants· are neither encroachers nor intruders
nor unauthorized occupants ofthe suit property, a finding unopposed and
unchallenged' as on date, and thus the initiative to oust them, ~nder the
garb of the development plan, the statutes iµvoked and the public interest, E
is not only in violation of their fundamental rights under Articles 14, 19
. and 21 of the Constitution oflndia, but also lacks in bona fide. As the
situation as it obtains at the present, is the making of the indifferent and
careless inaction on the part of the State Government and the Sansthan
in particular, the appellants not being responsible for the delay in the F
execution of the decree, their proposed ouster, if permitted to be.,
actualized, would not only result in irreparable loss and injury to them,
· but also tantamount to allowing the respondents/judgment debtors to. reap
the benefits of their own wrong, he urged. Mr. Luthra maintained tl}at
the impugned notice dated 11.4.2011 is incompetent and incomplete not
bei_ng under the Highways Act as well as Sectio1156 of the Act 1966 and G
is thus liable to be quashed on this c.ou11t alone. Apart from contending
that the Municipal council being not th'e owner of the land involved,
lacks in authority to issue the impugned notice, collusion between the
State Government, Municipal Council and the Sansthan has also been
pleaded, rendering the repugned action illegal and non est bona fide.
H
490 SUPREME COURT REPORTS [2016] 1I S.C.R.
A 23. In response, while the learned counsel for the State endorsed
the initiatives of the respondents to be in furtherance of public interest,
Mr. Naphade, learned senior counsel for the Nagar Panchayat/Municipal
Counc_tl urged that the Nagar Panchayat not being a party to the suit, is
not bound by the compromise decree. He rii~intained that the relief
sought for by the appellants, being in the form of preventive injunction, it
B
is in essence discretionary in nature and ought not to be granted after
the same having been declined.consistently by the courts in the earlier
proceedings after a thorough and analytical evaluation of the facts and
law involved. As the appellants have failed to demonstrate, any prima
face case against the Nagar Panchayat, and the relief of injunction against
c it is also incomprehensible on the touchstone of the balance of
convenience and irreparable loss, no interference by this Court in the
exercise of its jurisdiction under Article 136 of the Constitution ofindia·
is warranted. The learned senior counsel has emphatically' argued, that
in absence of any evidence of the claimed tenancy of the appellants
and their.constructions on the suit land with the permission either of the
D
State Government or the Municipal Council in existence at the relevant
.point of time, there is no semblance or' any right in them to retain the
possession thereof. 'According to Mr. Naphade, the appellants at best
can b~ construed to be licensees sans any·vested right and by no means
can r~ist the steps taken by the Nagar Panchayat/Municipal Council, .
E as a planning authority under the relevant legislations in discharge of its
statutory functions. The learned senior counsel has asserted that in any
view of the matter, the appellants' perceived rightto occupy the land has
to make way for the overwhelming public interest manifested by the
impelling necessity of implementing the development plan, by removing
the encroachments and unauthorized structures to ensure the safety,
F
security and convenience of the devotees in particular and the citizenry
in general. As the encroachments and the unauthorized structures have
proved to be potential impediments in the free access of the visiting
worshippers to the temple apart from being growingly haza1"dous, those
~re urgently required to be removed, he maintained. Jn buttressal of his
G assertions, the learned senior counsel has referred to the relevant
provisions of Act 1965, Act 1966 and the Highways Act. He urged that
the .statutory provisions having been enacted tq secure the underlying
objectives of the respective statutes, these have to be accorded an
overriding effect, lest the same are rendered redundant. With reference
to the additional documents filed on behalf of the respondents, learned
H
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 491
SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
senior counsel also sought to impress upon us, that the appellants are A
really not petty shopkeepers but are instead sufficiently well off and
own RCC buildings assessed to tax by the Nagar Panchayat.
24. The learned senior counsel has further urged that the shops
ofl:he appellants encroach upon the Palkhi Road as well as the adjoining : _
road of widths 9 meters and.15 meters respectively, leading to the temple. B
which are hindering the implementation of the development plan. Further,
their constructions also come within the prohibited area of3 7 meters of ·
the control line from the Ahmad Nagar Manmad Hfghway No. 10 under
the Highways Act, he urged. According to Mr. Naphade, except those
of the appellants, all other illegal constructions on the Palkhi Road and in
conflict with the development plan as well as the provisions of the statutes C
involved, have since been removed by the Nagar Panchayat/Municipal
Council. He submitted that the development plan issued in the year
1992 with later modifications have since been finalized and notified and
that the Nagar Panchayat/Municipal Council as the planning authority is
duty bound to implementthe same. ' D
25. The decisions of this Court "in Mis. L(lxmi & -Co. vs. Dr.
An"nt R. Desltp"nde & Anotlter (1973) 1 SCC 3 7, Dh ur(lndlwr
·. Pr"s"d Singlt vs. J"i Pr"k"sh University (Ind Others (2001) 6 SCC
534 and Arun L"l and Others vs. Union of India (In<! Others (2010)
14 SCC 384 have been cited to reinforce the above. E
26. Mr. Luthra, in his rejoinder, while reiterating his assailment to
the decisions impugned, fias laid before us the documents indicating the
alternative sites suggested by the appellants for their rehabilitation, in
case their continuance at the present site is disapproved by this Court.
27. We have noted the debated contours of the issues involved. F
The discord that genninated with the suit by the appellants apprehending
their ouster· from the plots in their occupation, over the yeai:s has
culminated in the notice dated 11.4.2001 under the Act 1965 and Act
1966 issued by the Chief Officer, Shirdi Nagar Panchayat, Shirdi requiring
them to remove their perceived illegal constructions raised and sustained
in violation of the relevant provisions of these legislations and also . G
repugnant to the control line delineated by the Resolution No. RBD-
1081/871 dated 9.3.2001 published under the Highways Act. To recall,
in terms of the compromise decree, th"e appellants-45 shopkeepers in
occupation of the land in Schedule B as mentioned therein , were
permitted to continue thereat and the Sansthan was to accommodate H
492 SUPREME COURT REPORTS [2016] 11 S.C.R.
A them in the adjacent triangular plot, to obtain vacant p'Ossession of the
Schedule B land for raising a shopping complex. The Sansthan thereafter
was obliged to rehabilitate the appellants in the new shopping complex.
Admittedly the proposed sJ10pping complex was not constructed. The
appellants also continued to occupytheir plots in the aforementioned
Schedule B land. The Nagar Panchayat/Municipal Co.uncil had not been
B
impleaded in the suit as defendant, _and thus was not a patty to the
compromise decree. T~at the land in question vests in the State
Government, is _a matter of record.
· 28. Be that as it may, it was only in the year 1990 that for the first
time, the Sansthan filed an execution petition before the trial court alleging
c thahhe appellants had not vacated their plots. As a sequel-, the appellants
also filed an executing petition No. RD 5of1990 imputing disobedience
of the precepts of the compromise decree by the Sansthan. Noticeabiy
for over a decade, the appellants had preferred asituation of status quo
and did not take any initiative prior thereto for the execution of the decree,
D for obvious reasons. After a spate of litigations, the High Court vi de its
ruling dated 5.7.2010, in reiteration of the determination of the executing
court made on 9.3 .2009, did affinn that with the intervening developments, .
- the decree had become inexecutable. In the attendant facts and
circumstances, it however computed compensation @ Rs. 3 lakhs and
Rs. 2 lakhs each for the big and sm'all shopkeepers respectively as
E assessed by, it and <lirected th~ Sansthan and the State Government to
bear the liability in equal shares. That in terms thereof, the Sansthan 11as
meanwhile deposited an amount of Rs. 2.1'9 crores is also on record:
29. In the interregnum, the development plan ofShirdi had been
sanctioned by the Director, Town Planning, Maharashtra on 15 .12.1992
F to come into effect from 25.2.1993. As per the said development plan,
the area measuring 30 gunth~s included in Survey No. 1, in occupation
amongst others of the appellants was reserved for garden. On the
directives of the State Government, however and on the compliance of
the legal formalities under the Act 1966 as claimed, a modification thereto
G was effected and this plot was bifurcated into two equal halves of 15
gunthas each, the northern part 0).t\.) being reserved for 'garden' and
southern part(l 3B) for .shopping centre. The appellants are in occupation
of the plot i3A in ter~s ofthe_modlfi.ed development plan.· This was as
far back as on 27.3.2003. Presumably, the shopping complex .
conten:iplated under the compromise decree in which the appellants were
H
SAYYED RATANBHAI SAYEED (D)TH. LRS. & ORS. v. 493
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
eventually to be accommodated did not come up in view of this A
development plan. However, explanation for the inaction of the
respondents/defendants for over two decades is not forthcoming.
30. As is discernable from the pleaded stand of the respondents/
defendants and endorsed by the Nagar Panchayat/Municipal Council,
the shops of the appellants have not only.encroached upon the Palkhi · B
Road (9 meters width) but also the adjoining road (15 meters width)
adjacent to their plots and used as service road to the t7mple. Further
their constructions also come within the prohibited distan_ce of37 meters
from thtt" centre of the Ahmad Nagar !\1Anmad Road, State Highway
No. 10 i.e. the control line fixed under the Highways Act. Such
·encroachments~ according to the respondents, being in derogation of the
c
proyisions of Act 1965, Act 1966 and the Highways Act as well as in ·
conflict with the development planar~ required to be r~moved not only
to promote the development of the area but also to secure the convenience
and safety of the surging volume of devotees in particular and the local
population in general. D
31. To reiterate, the appellants have not disputed the sequence of
events after the compromise decree for which it has been concurrently·
held in the preceding proceedings that _the decree has become
inexecutable. Not only these facts are borne out from the
contemporaneous documents, there is no persuasive reason either to E
delve into the same afresh. The unassailable fact is that after the
compromise decree on 20.8.1979, a development pla11 for Shirdi had
been formulated and finalized, in terms whereof amongst othe.rs, the
Palkhi Road and its.adjoining road leading to the temple are contemplated
to be cleared of encroachments. Further, the appellants' structures are
said to be within the prohibited distance of37 meters from the Manmad F
State Highway No. 10 marking the control line. Noticeably the
compromise decree did not declare the appellants' title in the land. It is
admittedly vested in the State Government. The decree only protected .
their occupation of the site in possession till they were rehabilitated in
· .the proposed shopping complex to come up in future. The decree, in the G
framework of the suit in which it was passed, also cannot be construed
to be one, endorsing compliance of the statutory requirements of the
legislations involved and in force at that point oftinre. Resultantly, the
failure.ofthe Sansthan to construct the shopping complex as undertaken.
under the compromise decree, ipso facto would not insulate t11e appellants
H
494 SUPREME COURT REPORTS f2016] 11 S.C.R.
A from the mandate of the relevant statutes in force to test the legality or
otherwise of the structures existing allegedly in violation thereof. In
absence of any proof, adduced by the· appellants to demonstrate that
th.eir structures existing do adhere t<;> the prescriptions of the statutes
invoked, their mere possession of the site_since 1970 would not be available
to them as an impenetrable shield against the infringements as alleged.
B
These violations, ifany, however would have to be addressed, by following
the due process of law.
32. In all, having regard to the progression of events after the
compromise decree, the contraventions alleged and the initiatives
proposed in preponderate public interest, we do not feel persuaded to
c hold at this distant point of time, that the compromise decree is still
executable. In our comprehension, the intervening developments have
occurred in the free flow of events and in absence of.any serriblance of -·
evidence of any collusion between the State Government, the Sansthan
and the Nagar Pancliayat/Municipal Council, we are not inclinedJo sustain
D the said accusation.
33. Whereas in Aru11 Lal (supra) and Dhura11dllllr Parsad Si111:'1
(supra), the decrees involved had been held- to have been rendered
inexecutable in-the contextual facts, which need not be ailated, in Mis.
Laxmi and Co. (supra), it was enunciated as a matter of general
E proposition, that a Court can take notice of subsequent events because
of altered circumstances to shorten the litigation. It was helcj that ifthe
court finds, in view of such intervening developments, the relief had
become inappropriate or a decision cannot be given ·effect to, it ought to
take notice of the same to shorten litigation, to preserve the right of both
the parties and to subserve the ends of justice.
F
34.lnexecutability, of the decree of a court, iri the face of
intervening and supervening developments, is thus a consequence
· comprehended in law, however contingent on the facts of each case.
We, thus, feel disinclined to interfere with the judgment and order dated
5.7.2010 of the High Court and impugned in CA. No. 3154 of201 I, so
G far as it pertains to the aspect of inexecutability of the compromise decree
dated 20.8.1979. Any contrary view, would have the consequence of
effacing the stream of developments for over three decades; more
particularly when a formidable element of public interest is involved.
35. To reiterate, the denunciation of the notice dated 11.4.2001 is _
H principally founded on lack of competence of the Nagar Panchayat/
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 495
SHIRDI NAGAR l'ANCHAYAT & ANR. [AMITAVA ROY, J.]
Municipal Council, it being not the owner of the land involved. Further A
as contended by the appellants, it has no authority as well to invoke the
provisions of the Highways Act. It is therefore imperative to briefly
-- notice the relevant provisions of the statutes applied.
36. The Act 1965, as its preamble would disclose, is to unify,
consolidate and amend the law relating to M!.micipal Councils and to B
provide for constitution ofNagar Panchayat and Industrial Townships in
the State of Maharashtra. Prior to the amendment thereto in the year
1994, the statute with the same objectives was relatable to municipalities
.in the State of Maharashtra. The expressions "council", "local authority",
"Municipal Area", "Nagar Panchayat", "Public Street", "a smaller urban
area" as defined in Sections 2(6), 2(20),2(24), 2(25A), 2( 42) and 2( 47 A)
c
respectively are extracted hereinbelow:
2(6) "Council" means a municipal council constituted or deemed
to have been constituted for a smaller urban area specified in a
notificati011. issued in this respect, under clause (2) of Article
243-Q of the Constitution of India or under sub-section (2) of D
Section 3 of this Act;
2(20) "local authority" means a Council or a Municipal
Corporation constituted underthe Bombay Municipal Corporation
Act (now the Mumbai Municipal Corporation Act), or the Bombay
Provincial Municipal Corporations Act, 1949 or the CityofNagpur E
Corporation Act, 1948, -or Zilla Parishad constituted under the
Maharashtra Zi Ila Parishads and Panchayat Samit is Act, 1961,
or a village panchayat constituted under the Bombay Village
Panchayats Act, 1958.
2(24) "municipal area" means the territorial area of a Council
F
or a 1:J"agar Panchayat;
2(25A) "Nagar Panchayat" means a Nagar Panchayat
constituted· for a transit-ional area notified under Section 34 lA of
this Act;
2(42) "public street" means any street,-
G
(a) over which the public have a right of way;
(b) heretofore levelled, pave~, metalled channelled, sewered, or
repaired out of municipal or other public funds; or
(c) which under the provisions oftl1is Act becomes, or is declared,
a public street;
.H
496 SUPREME COURT REPORTS f20161 11 S.C.R.
A 2(47A) "a smaller urban area" or "a transitional area" shall
mean an area specified as "a smaller urban area" or "a
transitional area", as the case may be, by a notification issued
under clause (2) of Article 243-Q of the Constitution ofindia or
under this Act;
B 37. The "Council", as per the definition enumerated hereinabove,
would mean a municipal council constituted or deemed to have been
constituted for a smaller urban area specified in the notification to that
effect, as contemplated under clause (2) of Article 243-Q of the
Constitution ofindia or under Section 3(2) of Act 1965. Whereas "Nagar
Panchayat" is an institution constituted for a transitional area as notified
c under Section 341 A of the Act, "municipal area" defines the territorial
area of a Council or a Nagar Panchayat. In terms of Section 1(3 }, the
provisions of the Act would come into force on such date as the State
Government would by notification in the official gazette appoint. The
parties are not at issue that the Act 1965 applies to the area involved.
D 38. The Council is one of the municipal authorities as contemplated
under Section 7 of the Act 1965 charged with the responsibility of carrying ·
out the provisions there offor each municipal area. Section 8 recognizes
it to be a body corporate with perpetual succession and a common seal,
possessing the power to acquire, h~ld and dispose. of property,' and to
E enter into contracts and may by the said name 'sue, or be sued through
its Chief Officer. The duties and functions of the Council as catalogued
in Section 49 of the Act in addition to the municipal governance of a
municipal area with its limits also make it incumbent for it to undertake
and to make reasonable provisions, amongst others· for removing
obstructions and projections in pub! ic streets or places and in spaces, not
F being private property, which are open to the enjoyment of the public,
whether such spaces are vested in the Council or in Government. The
plea tliat the Council is not the owner of the land thus is of no relevance
or significance.
~9,. Chapter XI of this Act deals with the powers of the council
G pertaining to public streets and open spaces. Whereas Sections 179
and 180 authorize. the Municipal Council through its Chief Officer,
amongst others to remove any projection, obstruction or encroachment,
built or set up, without its written permission, Section 187 empowers its
Chief Officer or any other municipal officer authorized by him, to seize
H any article hawked or sold or exposed for sale, in absence of a license
SAYYED RATANBHAI SAYEED (D}TH. LRS. & ORS. v. 497
SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
granted by the bye-laws of the Council. The contingencies in which the A
Chief Officer of the Council may by a written notice, inter alia, require a
person to demolish any construction made, is set out in Section 189 of
the Act under 'Chapter XII Control over Buildings'.
40.Chapter XXVI-A deals with the Nagar Panchayats
whereunder, as per Section 341 A, the State Government, having regard 8
to the factors mentioned in clause (2) of Article 243Q of the Constitution
of India, may by notification in the official gazette, specify an area in
transition from a rural to an urban area, to be a transitional area and
constitute a Nagar Panchayat therefor. In terms of Section 341 D, the
State Government may, at any time, in accordance with the provisions
of the Act, by notification in the official gazette, constitute a transitional c
area or a part thereof to be a smaller urban ~rea. Section 349 makes it
obligatory on every successor Council to continue to carry out any duty
or to manage, maintain or look after any institution, establishment,
undertaking, measure, work or service which the existing Council had
been responsible for carrying out, managing, maintaining or looking after D
immediately before the appointed day, until the State Government by
order relieves the successor Council of such duty or function.
41. The expressions "development", "development plan", "local
authority" and "planning authority" appearing in Act 1966 being of
definitive significance are extracted hereunder for immediate reference: E
2(7) "development" with its grammatical variation means the
carrying out of buildings, engineering, mining or other operations
in, or over or under, land or the making of any material change,
in any building or land or in the use of any building or land [or
any material or structural change in any heritage building or its F
precinct] [and includes [demolition of any existing building
structure or erection or part of such building, structure or
erection; and] [reclamation,] redevelopment and lay-out and
sub-division of any land; and "to develop" shall be construed
accordingly];
G
2(9) "Development Plan" means a plan for the development
or re-development of the area within the jurisdiction of a planning
Authority [[and includes revision of a development plan and]
proposals of a Special Planning Authority for development of
land within its jurisdiction];
H
498 SUPREME COURT REPORTS [2016] 11 S.C.R.
A 2(15) "local authority"" Jlleans-
'
(a) the Bombay Municipal Corporation constituted under the
Bombay Municipal Corporation Act, or the Nagpur Municipal
Corporation constituted under the City of Nagpur Municipal
Corporation Act, 1948 or any Municipal Corporation constituted
B under the Bombay Municipal Corporation Act, 1949,
(b) a Council and a Na ar Pancha at constituted under the
Maharashtra Municipal Councils. N gar Panchayats and
Industrial Township Act 1965.
(c) (i) a Zilla Parishad constituted under the Maharashtra Zilla
c Parishads and Panchayat Samitis Act, 1961,
(ii) the Authority constituted under the Maharashtra Housing
and Area Development Act, 1976,
(iii) the Nagpur Improvement Trust constituted under the Nagpur
D Improvement Trust Act, 1936,
which is permitted by the State Government for any area under
its jurisdiction to exercise the powers of a Planning Authority
under this Act;
2(19) "P,lanningAuthority" means a local authority; and includes,-
E
( a) a Special Planning Authority constituted or appointed or
deemed·to have been appointed under Section 40;
(b) in respect of slum rehab ii itation area declared under Section
JC ofthe Maharashtra Slum Areas (Improvement, Clearance
and Redevelopmei1t) Act, 1971, the Slum Rehabilitation Authority
F appointed under Section 3A of the said Act;_ ·
42. The cumulative reading of the statutory definitions as above
would leave no manner of doubt that the "Council" or "Nagar Panchayat"
constituted under the Act 1965 would be a planning authority under Act
1966. Section 42 mandates that consequent upon the operation of any
G development plan or plans under Chapter III of the Act, it would be the
duty of every planning authority to take such steps as would be necessary
to carry out the provisions thereof. The statutory fiat is, thus unambiguous
vis-a-vis the planning authority. Under Chapter IV dwelling on "Control
of development and use ofland included in development plans", whereas
H Section 52 prescribes penalty for unauthorized development or for use
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 499
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
otherwise than in conformity with the development plan, Section 53 A
empowers the planning authority to cause a notice to be served on the
owner of the unauthorized development carried out in violation of Section
52( l ), to take steps as may be mentioned therein either to restore the
land to its condition existing before the said development or to secure
compliance with the conditions or with the permission earlier granted or
B
as modified, as the case may be. The power to require removal of
unauthorized development or use, is vested in the pfanningauthority to
be invoked, after causing a notice to be served on the owner, requiring
him to either to discontinue the use or cause alteration or removal of any
building/work as the case may be or to impose such condition(s) in the
event of continuance of such use. Such a move is contemplated if it c
appears to the planning authority, that it is expedient to do so, in the
interest of proper planning ofits areas, having regard to the development
plan prepared and any person aggrieved by such notice may prefer an
appeal to the State Government in the manner prescribed.
43. In view of the statutory enjoinments and the legislative intent, D
discernable from the above provisions, the ~mission to mention Section
56 of Act 1966 in the notice dated 11.4.2001, in the face of unequivocal
empowerment of the Council, as the planning authority under the Act
1966, in our estimate does not render it illegat, unauthorized or non est.
In our view, the Municipal Council was well with~n its competence and
authority as the planning authority under the Act 1966, to issue the E
notice dated 11.4.2001, being of the opinion that the steps advised therein,
were essential for the implementation of the development plan, already
prepared and finalized, for the progress and advancement of the area.
44. The definitions of the words "encroachment" and "highway"
as framed in Sections 2(f) and 2(i) of the Highways Act deserve F
extraction as well.
2(f) "encroachment" means· any unauthorised occupation of
any highway or part thereof, and includes an unauthorised-
(i) erection of a building or any other structure, balconies, G
porches, projections on or over or overhanging the highway;
(ii) occupation of a highway beyond the prescribed period, if
any, for stacking building materials or goods of any other
description, for exhibiting articles for sale, for erecting poles,
owning, tents, panda ls, hoardings and other similar erections · H
500 SUPREME COURT REPORTS f2016l l l S.C.R.
A or for parking vehicles or stabling animals or for any other
purpose; and
(iii) excavations or dumps of any sort made or extended oh any
highway or underneath such highway;
2(1) "highway" means any [road, way or land] which is declared
B to be a highway under Section 3._ The expression includes-
(i) any land acquired or demarcated with a view to construct
a highway along it;
(ii) the slopes, berms, borrow-pits, foot-paths, pavements and
c side, catch and boundary drains attached to such road or
way;
(iii) all bridges, culverts, causeways, carriageways and other
structures built on or across such road or way; and
(iv) The trees, fences, posts, boundary, furlong and mile stones,
D ·· and other highway accessories and materials and material
stacked on the road or way;
45. Section 3 of the Highways Act, empowers the State
Government to declare any road and way of land, to be a highway and
classify it as a State highway (Spe\!ial) etc. as enumerated therein. Section
E 7 authorizes the State Government to fi1' by notification in the official
gazette in respect of such highway, the highway boundary, the building
line or control line. Section 9 imposes a restriction on or after the
appointed day on the buildings between the highway boundary and building
line; and between building and control line, notwithstanding anything
contained in any law, custom, agreement or instrument for the time being
F
in force. In terms of this Section, no person shall construct, form or lay
any means of access to, or from, a highway or erect any building or
materially alter any existing building or make or extend any excavation
on any land lying between the highway boundary and the building line
and the control line, without the previous permission in writing of the
,_ G Highway Authority. Thereby, such a person, without the permission in
writing of the Highway Authority,is also.prohibited from using any building
or alter the use of any building in a manner, which in the opinion of the
said Authority, would in any way infringe any of the provisions of the
Actor interfere with the use ofa highway adjoining the land on which
such building is erected.
H
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 501
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
46. Noticeably, Section 73 accords an overriding effect of the A
provisions of the Highway Act over the provisions of any other law
made by the State Legislature insofar as such law is inconsistent with
the provisions thereof or the rules made thereunder.
47. From the additional documents laid before this Court on behalf
of the Nagar Panchayat/Municipal Council, it would transpire that by B
Notification No. BHA.3765/116348 dated 19.4.1967 of the Buildings
and Communications Department, Sachivalaye, Bombay, the Malegaon-
Manmad-Ahmednagar-Dhond-Patas Road, as specified therein, was
declared as a state highway and that the said notification was published
in the official gazette. By a resolution of the State Government dated
9.32001, the building line and the control line amongst others of the
c
State Highway and Main State highway were fixed as hereunder:
Sr. Status of Building line Control line (places like
No road factory, cinema hall,
commercial godown, D
market etc. where crowd
. takes place
Civil and Non-Civil Civil and Non-Civil
Industrial Section Industrial Section
Section Section ---
3 State 20 Meters 40 metres 37 metres 50 lllCli~S
Highway from the from the from the from the E
&Main centre of centre of centre of centre of
State road - the road road road
Highway
48. As would be evident from hereinabove, the building line was
marked at 20 meters from the centre of the State Highway & Main F
State Highway and the control line, 37meters therefrom.
49. The declaration of Ahmad Nagar Manmad Highway No. IO
and the fixing of the building line and the control line under the Highways
Act are also matters of record and supported by above documents.
G
50. To reiterate, the three legislations involved were in existence·
when the compromise decree was passed. As determined hereinabove,
the compromise decree was not based on any adjudication, declaring
the title of the appellants in the land which admittedly belonged to the
State Government. Though they were not adjudged to be encroachers
or trespassers thereupon, no finding was recorded with regard to the H
502 SUPREME COURT REPORTS [2016] 11 S.C.R.
A legality or otherwise of their structures vis-a-vis the regulatory edicts of
these statutes. There was no occasion to examine or decide these issues.
Irrefutably, events irreversible in form and impact have occurred in
between.
51. The maps/plans referred to in the course of arguments, do
B prima facie reveal that the site in occupation of the appellants do come
within the control line fixed under the Highways Act. In the siIJBular
facts and circumstances, the insistent stand of the respondents, having
regard to the increasing confluence of devotees from all over the world
and the resultant congestion and inconvenience suffered, as well as the
multiplying challenge to the administration to maintain law and order in
c the locality, the plea of implementation of the development plan cannot
be brushed aside as frivolous or unwarranted. On a careful balance of
the competing interests, in the prevailing conspectus, we are constrained
to hold that the impugned notice does not call for interference. In our
view, the challenges laid to impeach the same do not merit acceptance,
D in the teeth of the relevant provisions of the legislations involved. Further,
the initiative is predominantly to espouse a public cause and thus ought
not to be scuttled by judicial intervention.
52.Significantly as claimed by the Nagar Panchayat/Municipal
Council, meanwhile it has undertaken the exercise of widening the roads
E concerned and has cleared the area of the encroachments and that except
the structures of the appellants, the operation is otherwise complete.
53. As the recorded facts demonstrate, the growingly felt exigency
of clear-ing the area of the structures and encroachments in conflict with
the statutes involved is in the preponderant public interest and it would
F thus be apparently inexpedient to trivialize the aspects of safety, security
and convenience of the burgeoning devotees and the local population as
persistently highlighted by the Respondents. Any contrary view, in
disregard to this otherwise salutary cause, would signify a retrograde
step in the context of greater public import.
G 54. As noted hereinabove, the appellants have been consistently
held not to be encroachers or trespassers on the land in their occupation,
they having been let in thereto by the erstwhile Gram Panchayat, the
then owner thereof. The land has since changed hands and is vested in
the State Government. In our view, both the appellants and the
respondents/defendants have to share the blame of leaving the
H compromise decree unexecuted for over a decade whereafter fresh
SAYYED RATANBHAI SAYEED (D). TH. LRS. & ORS. v. 503
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
rounds of confrontations surfaced leading to the present situation. Be
that as it may, though there has been no determinance of the appellants'
right, title and interest in the land, except that they are admittedly in
continuous possession since the year 1970 and carrying on their business
there, understandably, over the years, they have settled themselves in
their plots and are earning their livelihood from the income of the business
B
dealings. Though the build up of facts, since the compromise decree
cannot be discarded, the contemplated measures of the respondents, to
clear the area of the encroachments in public interest and for its overall.
development, would result in the displacement of the appellants as a
compelling necessity. As a corollary, they have to be essentially
rehabilitated or adequately compensated bearing in mind, the impact of c
the passage of time on the relevant perspectives since the date of the
compromise decree.
55. The emerging situation is one where private interest is pitted
against public interest. The notion of public interest synonymises
collective welfare of the people and public institutions and is generally D
informed with the dictates of public trust doctrine - res co111111w1ious
i.e. by everyone in common. Perceptionally health, law and order, peace,
security and a clean environment are some of the areas of public and
collective good where private rights being in conflict therewith has to
take a back seat. In the words of Cicero "the good of the people in the
chief law''. E
56. The latin maxim "Salus Populi Est Suprema Lex" connotes
that health, safety and welfare of the public is the supreme in law. Herbert
Broom, in his celebrated publication, "A Selection of Legal Maxims"
has elaborated the essence thereof as hereunder:
F
"This phrase is based on the implied agreement of every member
of the society that his own individual welfare shall, in cases of
necessity, yield to that of the community; and that his property,
liberty and life shall, under certain circumstances, be placed in
jeopardy or even sacrificed for the public good."
G
The demand of public interest, in the facts of the instant case, thus deserve
precedence. ·
57. A Constitution Bench of this Comt in K. T. P/a11tatio11 Private
Limited am/ Another vs. State of Karnataka (2011} 9 SCC l in the
context, amongst others, .of the right to compensation \.mder A1ticle 300A
H
504 SUPREME COURT REPORTS [2016) 11 S.C.R.
A of the Constitution oflndia did.observe hereunder in paragraph 134:
"134. Hugo Grotius is credited with the invention of the term
"eminent domain" (ius or do111iniu111 eminens) which implies
that public rights always overlap with private rights to property,
and in the case of public utility, public rights take precedence.
B Grotius sets two conditions on the exercise of the power of
eminent domain: the first requisite is public advantage and then
compensation from the public funds be made, if possible, to the
one who has lost his right. Application of the above principle
varies from countries to countries. German, American and
Australian Constitutions bar uncompensated takings. Canada's
c Constitution, however, does not contain the equivalent of the
taking clause, and eminent domain is solely a matter of statute
law. The same is the situation in the United Kingdom which
does not have a written constitution as also now in India after
the Forty-fourth Constitution Amendment."
D It was propounded that deprivation of property within the meaning of
Article 300A, generally speaking, must take place for public purpose or
public interest. The concept of eminent domain, which applies when a
person is deprived of his property postulates, that the purpose must be
primarily public and not private interest, being merely incidentally
E beneficial to the public. That the concept of public purpose had been
given a fairly expansive meaning and that it ought to be a condition
precedent for invoking Article 300A, was emphasized. It was held that
for deprivation of a person of his property under Article 300A, requirement
of public purpose is a precondition, but no compensation or nil
compensation or its illusiveness has to be justified by the State on judicially
F justiciable standards. That property rights at times are compared to right
to life which determine access to the basic means of sustenance and
considered as imperative to the meaningful exercise of other rights
guaranteed under Article 21 was noted. It was concluded that public
purpose is an inviolable, prerequisite for deprivation of a person of his
G property under Article 300A and that the right to claim compensation is
inbuilt in that article and when a person is deprived of his property, the
State has to justify both the grounds which may depend on the scheme
and object of the statute, legislative policy and other related factors.
58.Judicial solicitude, in the context of the constitutional guarantee
of equality and right to life, in the wake of removal of unauthorized
H
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 505
SHIRD! NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
encroachments from a public place and the consequential forcible eviction A
of the occupants, presidingly pervades the sentient and profound fabric
of Olga Tellis & Others vs. Bombay Municipal Corporation and
Others ( 1985)3 SCC 545. Though upholding the contemplated action
under the statute involved forthe removal of the petitioners the pavements .
and basti slum dwellers of the Bombay city, this Court defined the right
B
to livelihood to be an integral part of the rightto life. It was acknowledged
that the petitioners therein on their eviction would be deprived of their
livelihood, albeit, their existence by way of encroachments on footpaths
and pavements, was strongly discountenanced. It was empahsised that
footpaths and pavements are public properties, intended to serve the
convenience of general public and are not laid for private use which, if c
permitted, would frustrate the very object of carving out the same. That
the main reason for laying down footpaths and pavements was to enable
the pedestrians go about their daily affairs with a reasonable measure of
safety and security was emphasized. Holding that such a facility which
had matured into a right of the pedestrians, cannot be set at naught by
D
allowing encroachments to be made on the pavements, the plea that the
claim of the pavement dwellers to put up construction on such pavements
ought to be preferred, was assertively negated. All these notwithstanding,
it was ruled that the forcible eviction of such squatters therein, even if
they are resettled in other sites, would totally disrupt the economic life of
their households. In the textual facts, however, having noted the proposed E
re-habilitation schemes/programmes of the State Government,
appropriate directions were issued.
59. Apropos the scenario, where the petitioners therein had been
denied compensation for their land, taken over by the respondents and
that too without initiating any process for acquiring the same in accordance F
with law, this Court in Tukaram Kt11w Joshi and Others vs.
Maharashtra /11dustrial Development Corpotatio11 am/ Others
(2013)1 SCC 353, proclaimed in the context of Article 300A of the
Constitution oflndia, that right to. property was not only a constitutional
or statutory right but also a human right to be construed in the realm of
individual rights, such as right to health, livelihood, shelter, employment G
etc. It was reminisced that in a welfare state, statutory authorities are
bound not only to pay adequate compensation but are also under a· legai
obligation to rehabilitate the persons displaced. The spectre of the uprooted ·
persons becoming vagabonds with anti-national propensities in case of
non-fulfillment of such obligations by the State, was portended with H
506 SUPREME COURT REPORTS (2016] 11 S.C.R.
A concern. The observation in K. Krisltna Reddy vs. Special Deputy
Collector ( 1988) 4 SCC 163 qua the relevance and-significance of
'monetary compensation, was quoted with approval:
"12. ... After all money is what money buys. What the claimants
could liave bought with the compensation in 1977 cannot do in
B 1988. Perhaps, not even one-half of it. It is a common experience
that the purchasing power of rupee is dwindling. With rising
inflation, the delayed payment may lose all charms and utility of
the compensation. In some cases, the delay may be detrimental
to the interests of claimants. The Indian agriculturists generally
have no avocation. They totally depend upon land:'Ifuprooted,
c they will find themselves nowhere. They are left high and dry.
They have no savings to draw. They have nothing to fall back
upon. They know no"other work. They may even face starvation
unless rehabiiitated. In all such cases, it is of utmost importance
that tl~e award should be made without delay. The enhanced
compensation must be determined without loss of time."
60. As referred to hereinabove, inspite of the orders dated
18.10.20 I 0 and 26.11.2015, requiring the State in particular to ascertain
the availability of alternative sites of land to accommodate the appellants,
no affirmative response has been laid before th is Court. To the contrary,
E as would be discernible from the affidavit filed by the State dated March
21, 2014, no vacant parcel of land is said to be available forthe purpose
hi the immediate vicinity of the land in occupation of the appellants.
Though the appellants in their affidavit filed prior thereto had indicated
five sites, in the face of the obdurate and rigid denial of the State about
the feasibility thereof, any direction to adjust them thereat is uncalled
'p
for.
61. The conseq~nce of the appellants being'uprooted froin their ..
present sites ofbusiness, to reiterate would spell an overall dislocation in
their lives. That many or all of them Iuive build.ings elsewhere in the
locality, assessed to municipal tax, in our comprehension, cannot fully
G neutralize this fallout. The appellants have been conducting their business
·at the present sites for over 45•years and understandably over the time,
have built up the same with accompanying goodwill and reputation. Their_
eviction would assuredly eventuate a human problem. Nevertheless for
the cause of paramount public interest, their eviction is unavoidable.
H
SAYYED RATANBHAI SAYEED (D) TH. LRS. & ORS. v. 507
SHIRDI NAGAR PANCHAYAT & ANR. [AMITAVA ROY, J.]
62. Tn this precipitable eventuality, a realistic balance of the A
attendant exigencies is the clarion call of justice. As adverted to
hereinabove, even on the date of the conclusion of the arguments, this
Court had desired to be informed by the State about the availability of
alternative sites of land to accommodate the appellants. lnspite of
assurances given, by its learned counsel, no information has been . B
provided. In this premise, having regard to the ensuing consequences
qua the appellants, we consider it appropriate to direct, to start with, the
State and its functionaries to undertake an exercise to identify a suitable
site to accommodate the appellants. We make it clear that even if such
a site is not available in the immediate proximity of the land presently in
their occupation, a sincere endeavour would be made to locate a plot as C
near as possible thereto. The District Administration in coordination with
the Sansthan and other authorities, as deemed necessary in law, would
undertake the process. The appellants would also cooperate in t11e pursuit
and would not delay the completion thereof.
63. However, in case the endeavour to identify an alternative D
plot does not yield a!lY result inspite of sincere efforts, the appellants
would then be entitled to adequate monetary compensation as quantified
herein.
64. It is a matter of record and as has been noted by the High
Court, the appellants occupy two categories of plots i.e. 16' x 11 'and 7' E
x I I', where trade/business is being carried on. Though monetary
compensation, ipso facto, on a consideration of all attendant factors may
not be an exact substitute of the benefits presently enjoyed with the
future prospects, we are of the view that, having regard to the permissible
ponderables and also the passage of time in between, a lump sum of Rs.
20 lakhs and Rs. I 5 lakhs each respectively for the bigger and smaller F
shops/stalls, as noted hereinabove would be a reasonable palliative to
the appellants. We order accordingly. It is-reiterated that the compensation,
as indicated hereinabove, would be payable to the appellants only if an
alternative site is not feasible. The entire process on both counts, hdwever
should be completed within a period of six weeks herefrom. The State G
Government and the Sansthan would bear the amount of compensation, l·
payable in equal shares and would deposit the same in the Bombay High
Court within the period of six weeks aforementioned. The amount already
deposited by the Sansthan in. terms of .
the High Court's order, if not
withcirawn, shall be adjusted against this amount. The allotment of the
H
508 SUPREME COURT REPORTS r20l 6l I 1 S.C.R.
A new site/deposit, as directed, would be a condition precedent for further
action in terms of the impugned notice. It is also ordered that on the
deposit being made with the High Court, the Registrar General of the
High Court would make suitable arrangements for disbursement thereof
to the appellants as due to them, as expeditiously as possible, however
on proper identification.
B
· 65. The appeals are dismissed, however subject to the above
terms. No costs.
Bibhuti Bhushan Bose Appeals dismissed.
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