NONGMAITHEM ONGBI KUNJABATI DEVI Vs. DISTRICT MAGISTRATE IMPHAL

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioners have prayed for a writ of Mandamus quashing the order dated 15.2.1992 of the District Magistrate, Imphal District, Manipur requesting the Superintendent of Police, Imphal District, Manipur to take immediate necessary action under Section 34 of the Police Act to dismantle the alleged unauthorized construction of the structure or otherwise to furnish a detailed report to him for taking further necessary action under Section 133 of the Code of Criminal Procedure.

(2.) The case of the petitioners in the writ petition is that in between Mushafirkhana road and Bhairodan Hindi School compound in Imphal Town, there is a passage of 15 feet width and 65 feet length. The said passage was earlier used by the residents of the locality for dumping garbage which caused obnoxious smell affecting the students studying in the said school and pedestrians passing through the road. To prevent such garbage being dumped in the said passage, the Municipal Board of Imphal in consultation with the State Government decided to construct some stalls on the said passage. As per the said decision of the Municipal Board, originally six small stalls were to be constructed of the size of 7'8" x 7'7" and the remaining portion of the aforesaid passage was to be used as office of the Municipal staff engaged in the collection of Octroi. The aforesaid decisions were taken in the meeting held on 10.9.1977 under the Chairmanship of the Chief Minister, Manipur. The said decisions were communicated by the Government of Manipur, Local Self Department in its letter dated 24.9.1977 to the Executive Officer, Imphal Municipality, in which it was stated and six (6) stalls on the Musafirkhana road were to be put to public auction and allotted to persons who bade the highest monthly rent, and the costs of the stalls were not to be taken from such allottees. Accordingly, a notice dated 26.10.1977 was issued by the Deputy Commissioner (Central), Manipur, Imphal Municipality, the six wooden stalls on Mushafirkhana road would be put to public auction on 9.11.1977 at 2.00 p.m. at Imphal Municipal Office and would be allotted to persons who would bid highest monthly rent. As per the said notice, public auction was held on 9.11.1977 and the predecessor-in-interest of the petitioners No.1 to 7 and the petitioner No.8 were declared as successful bidders. By an order dated 9.1.1977 of the Imphal Municipality passed by the Deputy Commissioner (Central) on behalf of the Imphal Municipal Board, the successful bidders were required to deposit a sum of Rs. 500/- only as security for each stall and also deposit the rent for the first month in advance on 14.11.1977 by 1.00 p.m. at the latest. Pursuant to the said order dated 9.11.1977, the predecessor-in-interest of the petitioners No. 1 to 7 and the petitioner No.8 deposited the security amount of Rs.500/- for each stall as well as the monthly rent in advance for the first month and took possession of the six stalls. On abolition of octroi duty, the adjacent building measuring 7'8" width and 24' length in which the Municipal staff were carrying on the work of octroi collection was also settled with the petitioners No. 1 and 2 by the Imphal Municipality on payment of monthly rent. The case of the petitioners further is that while they were running their business in the said six stalls and the adjacent building, a decision was taken by the Imphal Municipal Board to convert the wooden stalls into semi-pucca stalls as per the terms and conditions contained in the Annexures to the order dated 2.1.1992 issued by the President of the Imphal Municipal Board. By the said order dated 2.1.1992, the construction of semi-pucca stalls was to be completed within four months and each of the lessees was to deposit a security money of 5,000/- with the office of the Imphal Municipal Board within 15 days. The petitioners who agreed with the said terms for construction of semi-pucca stalls at their own costs, submitted an application dated 25.1.92 to the President of the Imphal Municipal Board requesting him to pass an order directing the Engineering Officer, Imphal Municipality for supervision of the said work with effect from 27.1.1992. The further case of the petitioners as stated in paragraph 7 of the writ petition is that the petitioners started construction of semi-pucca stalls over their respective stall area by engaging a common contractor. They dismantled some wooden stalls but were yet to dismantle some of the stalls. They also invested a sum of Rs.50,801/- towards the construction of the '. part of the stalls by way of purchase of materials, payment of labourers, charges to the common contractor, etc. On 15.2.1992, however, the President of All Manipur Road Transport Drivers' & Motor Workers' Union addressed a letter to the Deputy Commissioner, Imphal District, Manipur stating that the said stalls caused traffic inconvenience by narrowing down the road. In the said letter dated 15.2.1992, the President of All Manipur Road Transport Drivers' and Motor Workers' Union requested the Deputy Commissioner to take early action to stop construction of permanent nature in the congested place. The Deputy Commissioner, Imphal District, Manipur then issued the impugned communication dated 15.2.1992 to the Superintendent of Police, Imphal District requesting him to take immediate necessary action under Section 34 of the Police Act to dismantle the alleged un-authorised construction of the structure or otherwise to furnish a detailed report to him for taking further necessary action under Section 133 of the Code of Criminal Procedure. It is further alleged in paragraph-10 of the writ petition that on receipt of the impugned communication dated 15.2.1992, the respondents No.2 to 4 by abusing their official position visited the spot with armed police and started dismantling the newly constructed semipucca structures and forcibly took away all building materials including bricks, stones, bolders, MS Rods, stone chips and cement stored in the vacant portion of the plot with help of truck belonging to the Police Department. On these facts, the petitioners have moved this court in the present writ petition contending, inter alia that the District Magistrate, Imphal had no jurisdiction to issue the impugned communication to the Superintendent of Police, Imphal District to remove the structures under Section 34 of the Police Act when the constructions had been made under the authority of the respondents No. 5 and 6, the State of Manipur and the Imphal Municipal Board and that the acts of the respondents No.1 to 4 amounted to deprivation of the property of the petitioners in violation of Article 300-A of the Constitution of India.

(3.) At the hearing, Mr. L. Nandakumar Singh, learned senior counsel appearing for the petitioners, submitted that all public roads are part of the Municipal properties and in support of this submission relied on the provisions of Section 59 of the Imphal Municipalities Act, 1976 (for short, "the Act, 1976"), and Section 62 of the Manipur Municipalities Act, 1994 (for short "the Act, 1994"). According to Mr. L. Nanda Kumar Singh therefore even if it is held that part of the land on which wooden stalls were constructed and on which semi-pucca stalls were to be constructed was part of the public road, the Imphal Municipal Board had the powers under the said Acts to lease such part of the public road to the petitioners for such construction of wooden stalls or semi-pucca stalls. He argued that since the petitioners were in occupation of wooden stalls and had been granted permission by the Imphal Municipal Board to construct semi-pucca stalls in place of wooden stalls, they were not trespassers. He cited the decision of the Supreme Court in Bishan Das vs. State of Punjab, AIR 1961 SC 1570, in which it has been held that a person who bonafide puts up constructions on land belonging to others with their permission would not be a trespasser. He also relied on the observations of the Supreme Court in M/s Bishamber Dayal Chandra Mohan vs. State of U.R, AIR 1982 SC 33, to the effect that the State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution, deprive a person of his property and such power can be exercised only by authority of law and not by a mere executive fiat or order because the executive power under Article 162 is subject to Article 300-A of the Constitution which provides that no person shall be deprived of his property save by authority of law. Mr. L. Nandakumar Singh also relied on paragraph 10 of an unreported judgment delivered on 9.9.1989 by a Division Bench of this Court in Sri M.K. Lakshmikanta Singh vs. Shri lringbam Tompok Singh (Civil Rule No. 172/82, 258/83), in which it has been held that it is settled law that even the State cannot take possession of any property belonging to the State if it is in unauthorized occupation of some other persons without taking action under the provisions of law. He also relied on a decision of a single Judge of this court in Khuraijam Indrajit Singh vs. State of Mampur (Civil Rule No. 1037/1994) delivered on 18.12.1997, to the effect that where a person is dispossessed from a particular land without following the procedure as laid down by law and in particular procedure laid down by the Manipur Municipalities Act, 1976, he is entitled to a writ of Mandamus or an order in the nature of Mandamus for restoration of possession of the said land. Mr. L. Nandakumar Singh pointed out that pursuant to the orders parsed by this Court in the present case on 24.7.1992, the Registrar of this Court made a spot enquiry and submitted a report alongwith a sketch map of the spot which would go to show that there was a passage measuring 8 feet width and 75 feet 6 inches length available between the Musafirkhana road and the boundary wall of Bhairodan High School and that the whole contention of the respondents that the wooden stalls were located and the semi-pucca stalls were being constructed on the Mushafirkhana road itself is factually not correct. He also referred to the inventory of building materials filed by the police pursuant to the orders passed by this court on 26.2.1992 to show that in fact materials were taken away by the police from the spot. He argued that the police had absolutely no power under Section 34 of the Police Act to take away the said materials or demolish any construction and that the whole action of the police was unauthorized, illegal and violative of the rights of the petitioners under Article 300-A of the Constitution. Finally, Mr. L. Nandakumar Singh contended that at the time when the writ petitioner was filed, demolition of the wooden stalls and part of semi-pucca stalls had not been made, but soon after the filing of the writ petition, the aforesaid wooden stalls and part of the semi- pucca stalls were completely dismantled and the building materials were taken away by the police. In these circumstances, this court while quashing the impugned order dated 15.2.1992 of the District Magistrate, Imphal as prayed by the petitioners in the writ petition should grant additional relief of restoration of possession of the land on which stalls were located to the petitioners. He relied on the observations of the Supreme Court in Dwarka Nath vs. I. T. Officer AIR 1966 SC 81, that the High Courts are enabled under Article 226 of the Constitution to mould the reliefs to meet the peculiar and complicated requirement of this country. According to Mr. L. Nandkumar Singh, therefore, this is a fit case in which this court should take into consideration the peculiar facts of the case and mould the relief and direct restoration of possession of the land from which the petitioners were dispossessed after filing of the writ petition.