Libertatem Magazine

Municipality, being a trustee, must ensure that public streets are not encroached upon

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Case – Asikali Akbarali Gilani v. Nasirhusain Mahebubbhai Chauhan, 2016 SCC OnLine SC 1122, decided on 07.10.2016

The Apex court while dealing with a case where around 869 leases were given by the Municipality to different persons without any authority of law and in absence of any formal lease executed in favour of concerned persons and without the prior approval of the State Government in terms of Section 65 of Gujarat Municipality Act, 1963, observed that municipality being a trustee should ensure that public streets are not encroached upon.

The Court held that the fact that a resolution has been passed by the Executive Committee of the Municipality or a letter of allotment is issued by the Municipality, cannot legitimize the occupation of a public property in absence of any formal lease deed executed in that behalf and more so in respect of a land falling within the public street.

It was argued that the direction given by the Gujarat High Court to take back the possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized constructions was in derogation of the Section 258 of the Act of 1963. The court while rejecting the said contention said that municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector and hence, the High Court’s direction is not in derogation of the said provision; and particularly when the Collector is expected to exercise that power by following due process.

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