Sudhir Kumar Tiwari & Ors. vs State Of U.P. & Ors.

Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents.

The petitioners seek a writ of certiorari quashing the order dated 03.08.2026 passed by the Executive Officer and the Chairman, Nagar Panchayat Baberu, District Banda, and a writ of mandamus restraining the respondents from demolishing the shops allotted to them in the shopping complex situated at Nagar Panchayat Baberu.

The petitioners state that the Nagar Panchayat constructed a two-storeyed shop complex over land vested in it and thereafter allotted the shops on payment of premium and annual rent. They rely upon a resolution stated to have been passed under Section 293(1) of the Uttar Pradesh Municipalities Act, 1916 and upon agreements executed in their favour.

According to the petitioners, an agreement dated 01.07.2010 was executed in favour of petitioner Nos. 1 and 2 for running shops on annual rent for 29 years, from 01.07.2010 to 30.06.2039. They further plead that agreements dated 10.09.2016 were executed in favour of other petitioners on substantially the same terms. Further allotments were made in 2019 in respect of shops on the first floor.

The petitioners submit that they deposited the security amount, paid rent and invested money in beautifying the shops. The shops are stated to be their source of livelihood. The complex is said to be situated in the heart of the town, surrounded by permanent structures and a dense population, with open space on its four sides. Their case is that the proposed road works can be carried out without demolishing the complex.

The petitioners refer to notices issued on 06.09.2024 by the Executive Officer which were challenged in Writ Petition No. 36590 of 2024. By order dated 28.11.2024, this Court quashed the consequential order dated 24.10.2024 on the ground that the objections raised to the notices had not been considered.

Thereafter, the Assistant Engineer and the Executive Engineer of the Public Works Department issued a notice dated 07.01.2026 requiring removal, within seven days, of the permanent and temporary structures described as encroachments over State land. The petitioners had challenged the notice in Writ Petition No. 2152 of 2026 and that by an order dated 22.01.2026, the petition was disposed of with a direction to the competent authority to consider the objections and take a decision within the stipulated period. The petitioners were not to be dispossessed before such a decision.

The petitioners state that they filed detailed objections. According to them, the objections were rejected by the District Magistrate, Banda, by order dated 26.03.2026 and directions were issued for removal of the shopping complex. The order was challenged in yet another Writ Petition No. 12900 of 2026.

In the intervening proceedings, the Nagar Panchayat stated that the allotment agreements had been cancelled. An earlier order dated 25.04.2026, passed after granting only three days to file reply, was challenged in Writ Petition No. 17858 of 2026. This Court set aside that order on the ground that the time of three days granted was insufficient for a proposal to cancel a long-term allotment and reserved liberty to the authority to issue a fresh notice in accordance with law.

Fresh notices were thereafter issued on 27.05.2026, 29.05.2026 and 30.05.2026, granting fifteen days to vacate and inviting objections. The petitioners challenged the notices in Writ Petition No. 24126 of 2026. By order dated 19.06.2026, this Court permitted the petitioners to file appropriate objections within one week and directed the respondents to decide them within two weeks thereafter.

The petitioners contend that the impugned order dated 03.08.2026 disregards their subsisting agreements, the payment of premium and rent, and the requirements of Section 106 of the Transfer of Property Act, 1882. It is submitted that six months' notice, or at least the notice contemplated by the lease, was required before termination. It is further submitted that the resolution of the elected body and the procedure for cancellation were not followed, no rehabilitation arrangement was made, and the petitioners cannot be treated as encroachers when the shops were constructed and allotted by the Nagar Panchayat itself.

The petitioners dispute the assertion that seventeen shopkeepers voluntarily vacated. They state that the shops were locked by the Nagar Panchayat and that some shopkeepers subsequently entered after breaking the locks. They also contend that the allotment was made after advertisement, auction and deposit of security money.

Per Contra, learned Standing Counsel submits that the petition is not a challenge to a private termination of a valid lease. The construction stands over State land reserved and recorded for public use. The Nagar Panchayat could not confer upon the petitioners a right to occupy a public road or a marghat merely by executing allotment agreements. The action is founded on the protection of public land, road widening and road safety. It is further submitted that, after notice, many of the seventeen shopkeepers vacated and their shops were locked. Only one or two persons are now pursuing the proceedings, purportedly on behalf of the others, although the individual agreements and rent receipts of all the petitioners are not on record. The State therefore disputes the bona fides of the petition as presented on behalf of all eighteen petitioners.

The impugned order records that the report of the Regional Lekhpal dated 15.01.2026 shows the shopping complex over Gata Nos. 680 and 769. Gata No. 680 is recorded as the Baberu-Rajapur road and Gata No. 769 as marghat, category 6-3, described as protected public-use land. Both parcels are State land. The order records that no ownership right could accrue to a private allottee over them.

The State relies upon the proposal for widening the Baberu crossing and for construction of a slip road, rotary and other road-safety works in public interest. A joint team of the revenue authorities and the Public Works Department found temporary and permanent encroachments at the crossing and on the five roads leading to it. The notice dated 07.01.2026 was issued in that context.

The impugned order records that, after the earlier orders of this Court, the petitioners were served repeated notices, their replies were considered and the allotment file was examined. It records that no prior approval of the District Magistrate had been obtained at the time of allotment and that a copy of the relevant resolution had not been forwarded to the Prescribed Authority and the District Magistrate within the period contemplated by Section 94(4) of the Uttar Pradesh Municipalities Act, 1916. The construction and allotments were therefore found to have been made without compliance with the prescribed procedure.

The authority has also relied upon Conditions 17, 24 and 25 of the allotment agreement. Condition 17 reserves power with the Chairman and the Executive Officer to require a shop to be vacated in a special or emergent circumstance. Condition 24 requires every allottee to comply with directions issued by the Nagar Panchayat from time to time. Condition 25 authorises cancellation upon breach of the allotment conditions. The proposed road widening and road-safety works furnished the public purpose for invoking these conditions and terminating the allotments.

The material facts concerning the land are not in dispute. The land belongs to the State. The revenue entries record Gata No. 680 as a road and Gata No. 769 as marghat, category 6-3, namely land reserved for public use. Although the petition contains a bare denial regarding the entry for Gata No. 769, no proceeding challenging the revenue entries, no contrary revenue record and no application for demarcation have been placed before the Court. The impugned order relies upon the Regional Lekhpal's report dated 15.01.2026 and records that the complex stands over Gata Nos. 680 and 769. The bare assertion in the petition does not displace the official record.

The objection to the bona fides of the petition has substance. Eighteen persons have joined the writ petition, but only two agreements have been annexed: one relating to the period beginning 01.07.2010 and the other dated 10.09.2016. Rent receipts covering all the petitioners are also not on record. The individual agreements and the separate orders said to affect each petitioner have not been produced. The State has stated that many among the seventeen shopkeepers vacated after notice and that their shops were thereafter locked. No material has been placed to establish that each of the persons arrayed as a petitioner continues in possession. The proceeding is being pursued in substance by only one or two persons, purportedly on behalf of the others. In these circumstances, the petition has not been shown to be bona fide litigation on behalf of all eighteen petitioners.

The Nagar Panchayat neither owned the land nor possessed authority to divert land recorded as road and marghat from public use. Section 293(1) of the Uttar Pradesh Municipalities Act, 1916 concerns fees for use or occupation, otherwise than under a lease, of immovable property vested in or entrusted to the management of a municipality. It does not authorise the municipality to lease State land which is not lawfully available for municipal disposal. The resolution and allotment agreements could therefore neither confer an enforceable right upon the petitioners nor prevent the State and the public authorities from protecting the land and carrying out road-safety works.

The payment of premium, rent or security money and the execution of agreements by the Nagar Panchayat do not alter this legal position. A public authority cannot, by an unauthorised act, create a private right contrary to the statutory character of the land. Nor can the petitioners claim an estoppel against the State on the basis of an allotment which the municipal authority had no power to make.

In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, the Supreme Court applied the public trust doctrine and held that a municipal body holds public amenities, such as parks and roads, in trust for the public. Its contractual and property powers must be exercised strictly within statutory limits. An unauthorised commercial construction on public utility land cannot be protected on the ground of expenditure incurred or on principles of equitable estoppel.

In Jagpal Singh v. State of Punjab, (2011) 11 SCC 396, the Supreme Court held that land reserved for common use cannot be regularised in favour of private occupants merely because the occupation has continued for a long period or substantial construction has been raised. These principles apply to the present case. The petitioners' plea of livelihood, the payment of premium and their expenditure on the shops cannot create an enforceable right to continue a private commercial occupation over State land recorded for public use or prevent its restoration for road-safety works.

The petitioners' reliance on Section 106 of the Transfer of Property Act, 1882, is misplaced. That provision regulates determination of a lease in the situations to which the Act applies. It does not create title in the lessor, cure the absence of authority to lease State land, or compel the State to maintain an unauthorised use of a public road or marghat. A notice period applicable to a valid lease cannot be invoked to defeat the public character of the land or the State's obligation to protect it.

Conditions 17, 24 and 25 support the action taken. Road widening and road-safety works constitute the special public circumstance contemplated by Condition 17. The petitioners were required to comply with the directions to vacate under Condition 24, and continued occupation attracted Condition 25. These conditions were invoked consistently with the statute and after following procedural fairness.

The petitioners were afforded repeated and adequate opportunities. After the order dated 25.04.2026 was set aside for want of sufficient time, fresh notices granted them fifteen days to respond. This Court thereafter allowed a further week for filing objections, which were considered before the impugned order was passed. The plea of insufficient notice or opportunity therefore has no substance.

The widening of the crossing and the proposed slip road, rotary and road-safety works serve a public purpose. The petitioners' plea that open space is available around the complex does not confer a right to retain a structure standing on State land reserved for public use.

The prior orders of this Court do not assist the petitioners. They required the authorities to consider the objections and to issue a fresh notice after curing the defect of inadequate time. They did not recognise a right to occupy State land, validate the construction or prevent a decision founded on the revenue entries and public purpose. The impugned order is the decision taken after the process directed by this Court was followed.

For the reasons stated above, the order dated 03.08.2026 does not warrant interference under Article 226 of the Constitution. The writ petition is accordingly dismissed. There shall be no order as to costs.