AKHILENDU ARJARIA Vs. BANARASIDAS

JUDGEMENT

(1.) "we, the people of India", solemnly resolved to constitute ourselves into a "sovereign Socialist Secular Democratic Republic. " It was resolved to give justice and equality to all. Having been ruled by a foreign power for more than two centuries it was thought apt to include a chapter of Fundamental Rights in the Constitution which we gave to ourselves. Attainment of "liberty" in all spheres was thought as an imperative goal. The Courts have been enforcing these fundamental rights only. Some how or the other it was felt that we were concerned about our rights only. We absolutely forgot that we owe a duty to this Nation also. It was precisely for this reason in 1976, a chapter dealing with "fundamental Duties" of the citizen of this country was incorporated in the Constitution. Part IV A was added by 44th Constitutional Amendment Act, 1976. Article 51a which was so added prescribes a duty for every citizen of India "to protect and improve the natural environment including forest, lakes, rivers" and to safeguard "public Property". It is imperative that the citizens of this country be reminded of their obligations to this Nation.

(2.) EXPANSIONIST instinct is a basic in-built human trait. When this desire was manifested by kings and Emperors this was described as "occupation" and "annexation". When this desire is exhibited by a common man, it is described as encroachment. It is one of these encroachments on public streets which is the subject-matter of this litigation. As a matter of fact this Court took cognizance of this very encroachment earlier also. It was concluded that Banarasi Das-plaintiff who figure as respondent in this petition had no right of statutory flavour in his favour to continue on a piece of land which is part of the public street. Now after a successful effort was made by Municipal Corporation, Gwalior (hereinafter referred to as the Corporation) to remove the encroachment the respondent plaintiff approached the trial Court. An application under Order 39, Rule 2-A of the Code of Civil Procedure, 1908, (hereinafter referred to as the Code) was filed. Contempt proceedings are sought to be initiated against the officials of the Corporation. The plaintiff-respondent insists that there is breach of the order of injunction passed by the trial Court on 11th of November, 1992. Restoration of possession has also been sought. Order by which proceedings have been initiated in this regard by the trial Court are being challenged in the present proceedings. The argument advanced on behalf of the officials of the Corporation is that they took action with a view to remove the encroachment in terms of the order passed by the trial Court itself and in any case it is submitted that the earlier decision given by this Court in civil revision No. 159 of 1994 decided on 24th of May, 1994 i. e. , Banarasi Das and Anr. v. Ramkrishan and Ors. (since reported as AIR 1995 M. P. 147) authorised the Corporation to take steps for removing the encroachment. It is, therefore, argued that the Court below has assumed jurisdiction not vested in it. Before noticing the contentions raised by both the sides, it would be apt to recapitulate some basic facts.

(3.) IN the city of Gwalior, there is a place known as Jiwiji Chowk, Maharaj Bada. It is circular in shape. Buildings displaying fine architecture which may also be covered by the term "ancient monuments" exist on this circular chowk. One such fine structure known as "victoria Market" is being used rather misused as Fruit Market. Several roads from different directions converge on this circular chowk. As a matter of fact, some of the traffic has necessarily to pass through this place. It is because the traffic converging on this circular area moves in one direction only. It is in this circular area there exists a temple dedicated to Lord "hanumanji". The Corporation for reasons best known to it gave permission to respondent Banarasi Das to temporarily occupy a piece of land adjoining the temple measuring 12. 5' x 8. 4'. This permission was for a limited period of and expired on 30-3-1996, the date after which no payment was received by the Corporation. One fact is clear that there was no permission to raise any permanent construction. Later on, a permanent construction was raised. When steps were taken with a view to demolish it, the suit out of which this petition has arisen was filed. On 11th of November, 1992, the trial Court came to a prima facie conclusion that Banarasi Das respondent was a lessee under the petitioner Corporation, and therefore, he should not be dispossessed from the land in question. In para 8 of the order, it was however made clear that if the plaintiff respondent Banarasi Das had raised any permanent construction or has occupied any area in excess of the area which he was permitted to occupy then the Corporation would be at liberty to remove the permanent encroachment and also see to it that the plaintiff does not remain in possession of an area more than that which he was allowed to occupy. This direction was given in civil suit No. 166-A of 1991. There was another litigation initiated by this very plaintiff. The subject matter of this was another encroachment adjacent to the area now in dispute. Steps were taken with a view to evict the plaintiff respondent and in fact, he was evicted from some portion of the land. This was subject-matter of civil suit No. 7-A of 1994. This litigation as indicated in para 2 above, came to this Court. Civil Revision No. 159 of 1994, came to be registered. This Court concluded that there exist no relationship of landlord and tenant between the plaintiff and the Corporation. It was also concluded that plaintiff having occupied a piece of land which was part of public street, he had no right to continue on the same. The Corporation filed an affidavit in the above proceedings and pleaded that the respondent had unauthorisedly occupied the land in dispute. As a matter of fact specific reference was made to dimensions of a piece of land which is the subject-matter of the present litigation. This petition was dismissed. This as noticed above is reported as Banarasi Das v. Ram Kishan, AIR 1995 MP 147. Special Leave Petition preferred against the above decision was dismissed by the Supreme Court of India on 30th September, 1994. It bears S. L. P. Civil 14591 of 1994.