1. Who has the power to remove encroachment on a public street in Delhi, the Delhi Municipal Corporation acting under the provisions of the Delhi Municipal Corporation Act. 1957 (hereinafter called the Corporation Act) or the Gaon Panchayat acting under the Delhi Panchayat Raj Act. 1954 (hereinafter called the Panchayat Raj Act)? The Delhi Municipal Corporation appellant herein) sent a notice dated 20-8-1960 to Shri Hira Lal (respondent herein) asking the latter to remove encroachment from a public street in village Kapas Hora. The notice purported to be under Sections 320 and 321 of the Corporation Act. Shri Hira Lal thereon instituted a suit praying that the Corporation be restrained from proceeding against him. The plaintiff, interalia alleged that the Corporation had no jurisdiction to serve the said notice on him inasmuch as the village was governed by the provisions of Section 18(1) of the Panchayat Raj Act. The suit was defended by the Corporation, inter alias on the ground that the Corporation had the power to remove the encroachment made by the plaintiff on the public street under Sections 320 and 321 of the Corporation Act.
2. The suit was decreed by the trial Court on the preliminary ground that the exclusive jurisdiction to remove an encroachment from public street vested in the Gaon Panchayat and the Corporation had no jurisdiction to do so. The Corporation was, thereforee, restrained from proceeding against the plaintiff. The lower appellate Court adopted the view and the reasoning of the trial Court and dismissed the first appeal.
3. The sole question before me in the second appeal is which of the two competing authorities, namely, the Corporation and the Gaon Panchayat, has the power to remove the alleged encroachment from the public street in village Kapas Hora?
4. By the definition or 'Delhi' in sub-section (10) of Section 2 of the Corporation Act, Delhi means the entire area of the Union territory of Delhi except New Delhi and Delhi Cantonment. The Corporation Act, thereforee, applied to this village in which the alleged public street is situated. Sub-section (44) of Section 2 of the Corporation Act defines a 'public street' to mean any street which vests in the Corporation as a public street. Under Section 298(1) of the Corporation Act, all streets within Delhi which are or at any time become public streets, and the payments, stones and other materials thereof I shall vest in the Corporation. Under Section 299(1) of the Said Act, the Commissioner shall, from time to time, cause all public streets vested in the Corporation to be properly maintained and kept in a state of repair. By S. 42(p) of the said Act. It shall be incumbent on the Corporation to make adequate provision by any means or measures which it may lawfully use or take for the removal of obstructions and projections in or upon streets, bridges and other public places. Sections 320 and 321 of the Corporation Act prohibit encroachment over any street and, thereforee, a fortiori on any public street. Under Section 322, the Municipal Commissioner may, without notice, cause to be removed any stall, chair, bench, box, ladder, bale, or other thing whatsoever, placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of the Act. The notice by the Corporation was obviously given in pursuance of these provisions of the Act with a view to the removal of the encroachment. Section 461 of the Corporation Act provides that whoever contravenes any provisions of the Act mentioned in the first column of the Table in the Twelfth Schedule or fails to comply with any order or direction lawfully given to him shall be punishable with fine specified in that behalf in the third column of the Table in the Twelfth Schedule. A contravention of Sections 320 and 321 is punishable by fines of Rupees 200/- and Rupees 100/- respectively.
5. It is seen, thereforee, that the Corporation Act not only vests a public street in the Corporation but also obliges the Corporation to remove encroachment from the same and provides a machinery to do so plus a penalty against a person who fails to remove the encroachment after being required to do so by the Corporation.
6. As against this, the Gaon Panchayats established under Delhi Land Reforms Act, 1954 are not placed in the same position as the Corporation. Under section 154 of the Delhi Land Reforms Act, 1954 certain lands etc, are vested in the Gaon Sabha but public streets are not mentioned therein. There is no other provision vesting a public street in a Gaon Sabha or a Gaon Panchayat Sections 77 to 87 of the Delhi Land Reforms Act provide for the institution of certain suits. But these do not include a suit for the removal of an encroachment on a public street though a Revenue Assistant under the amended Section 86 may be approached to take action in this respect. Under Rules 169 and 170 framed under the Delhi Land Reforms Act, it is the Deputy Commissioner who has to be approached by Gaon Sabha for the removal of any encroachment on any vacant land of the village. This emphasises the fact that Gaon Sabha or Gaon Panchayat itself has not been given any power to do so.
7. Under the Panchayat Raj Act, a public street is defined in Section 2 (17). But no significance can be attached to the difference in the language of this definition from the definition of the public street in the Corporation Act. The learned lower Courts replied upon Section 18 of the Panchayat Raj Act for the proposition that the exclusive jurisdiction to remove encroachment on the public street is vested in the Gaon Panchayat there under. But this conclusion is not supported by the language of Section 18. The relevant part of Section 18 is as follows:--
'In addition to the duties and functions imposed on a Gaon Panchayat under the Delhi Land Reforms Act, 1954, or under any other enactment, it shall be the duty of every Gaon Panchayat, so far as its funds may allow, to make reasonable provision within its jurisdiction for removal of encroachments on public streets, public places and property vested in the Gaon Sabha.'
Firstly, the duty of the Gaon Sabha is to be discharged only insofar as its funds may allow. If the funds, thereforee, do not allow a Gaon Panchayat to take action for the removal of encroachment on public streets by way of a suit etc., then it is not compelled to do so. Secondly. It is required to make only reasonable provision for the removal of such an encroachment. Such a reasonable provision may perhaps consist in its approaching the Deputy Commissioner under Rules 169 and 170 framed under the Delhi Land Reforms Act referred to above or may consist in filing a suit to get such a relief. But no provision in the Panchayat Raj Act has been referred to by the learned lower Courts to show that the Gaon Panchayat was itself authorised to remove the encroachment from a public street.
8. The following conclusion, thereforee, emerge from the analysis of the above relevant provisions:
(1) The Corporation has not only the duty but also the power to remove encroachment from a public street and the person failing to comply with the provisions of the Corporation Act in this respect is liable to be penalised by a fine.
(2) The Gaon Panchayat can make a reasonable provision for the removal of an encroachment from a public street if its finances permit.
(3) At the most it may be said, thereforee, that both the Corporation and the Gaon Panchayat have concurrent powers to take steps to remove an encroachment from a public street.
(4) It can never be said that the Gaon Panchayat alone has the exclusive power to do so and that the Corporation is precluded from doing so.
(5) If at all, there is any inconsistency between the provisions of the Corporation Act and the provisions of the Delhi Land Reforms Act and the Panchayat Raj Act, then it is the provisions of the Corporation Act which will prevail to the extent of the repugnancy for two reasons, namely:--
(i) The Corporation Act of 1957 being subsequent to the Land Reforms Act and the Panchayat Raj Act prevails over the previous enactments to the extent of the repugnancy; and
(ii) Section 22 of the Government of Part C States Act, 1951 so provides.
9. It is clear, thereforee, that the finding on the preliminary question given by the learned lower Courts was wrong. The appeal is, thereforee, allowed and the judgments of the learned lower Courts are set aside. The case is remanded to the trial Court for a trial on merits. In the circumstances of the case, there will be no order as to costs.
10. Appeal allowed.