Udai Shanker Gupta & Ors. vs District Magistrate, Gorakhpur & Ors.

This writ petition is directed against the order of the District Magistrate, Gorakhpur dated 11.8.1999 cancelling the allotment orders dated 27.2.1992 and 20.4.1993, respectively made by the Town Area Committee on the eastern strip of 660 square ft. of land in Khasra No. 528, abutting the main road in Town Area Gola. The Commissioner, Gorakhpur Division, Gorakhpur dismissed the appeal on 28.7.2000 on the ground that it was not maintainable before him.

We have heard Shri V.K.S. Chaudhary, Senior Advocate assisted by Shri R.S. Maurya for the petitioners. Learned standing counsel appears for respondent No. 1.

An affidavit of service wasa filed by Shri Udai Shanker Gupta the petitioner on 13.12.2000, stating that he had served the notices on Nagar Panchayat. Gola Bazar on 9.12.2000. The notices were received by the Clerk of Nagar Panchayat on the directions of the Chairman, and respondent Nos. 3 and 4 on 11.12.2000 in presence of witnesses Rama Nand and Budhi Sagar Tiwari. The notices sent by the Court by registered post did not return back either served or unserved on the respondents. A vakalatnama was filed by Shri A.B. Singh on behalf of Nagar Panchayat Gola. He has not chosen to appear in the matter. The service on respondent No. 6, is thus sufficient.

Brief statement of facts, giving rise to this writ petition, are that in the Town Area Committee. Gola, District Gorakhpur constituted in the year 1859, there is a plot No. 528 recorded as ''Rasta'' from the crossing of Kauriram to Gola. On this spot the width of the road is about 100120 feet with 15 feet wide metalled road in between. It is stated that on both the sides 2 of the metalled portion of the road, about 4045 feet land is lying vacant, which is the property of the Town Area Committee. The people of the area started encroaching this road, on which the Town Area Committee resolved in its meeting dated 28.5.1967, under Section 293 (1) of the U.P. Municipalities Act, 1916 (the Act) to make arrangements for allotment of the pavement on both sides of the road, after leaving 40 feet for the commuters. The Town Area Committee further resolved that the premium for the management of the pavement shall be taken at the time of settlement, for a period of one year and at a time, for a maximum period of 30 years. This arrangement shall be temporary and that whenever the Town Area Committee will require the land, the consumer/lessee will vacate it without claiming any compensation. The agreement shall be executed every year by increasing the rent by one and a quarter or one and half time, as the case may be. If the consumer does not agree for increase of rent, the agreement shall be executed with some other person for which he will have no objection. The other conditions of the agreement, namely the method of payment of the yearly rent termed as ''Lagan'' in the resolution, were provided in detail in the resolution.

The resolution was sent to the District Magistrate, Gorakhpur, who directed the Sub Divisional Magistrate, Bansdih to inspect the spot. The Sub Divisional Magistrate found that the vacant land, on both the sides of the road and the pavement, is more than 4045 feet wide on either side, and was being encroached. He found that the letting of the land under an agreement will not cause obstruction in the movement of traffic. The District Magistrate, on this report, by his order dated 25.4.1967, granted approval to the resolution to be implemented after framing the byelaws. The Town Area Committee framed the byelaws, after due publication in the newspapers. These byelaws were later on published in the gazette dated 28.5.1967 with all the terms and conditions as mentioned in the resolution of the Town Area Committee.

The Town Area Committee, acting under the authority of the bye laws, has been allotting the land to various persons. Shri Udai Shanker Guptathe petitioner No. 1 was alloted 200 square feet (20''x 10'') on the eastern side of the plot No. 528 vide agreement dated 22.10.1993. Shri Hari Nath and Shri Pramod Kumarpetitioner Nos. 2 and 3, minors under the guardianship of their mother Smt. Phulbasi, were allotted 660 sq. feet (20''x33'') in the same plot vide agreement dated 24.4.1993. Shri Buddhi Sagar Malipetitioner No. 4 was allotted 200 sq. feet (20ft. x 10 ft) in the same plot vide agreement dated 26.12.1993. Shri Meghulalpetitioner No. 5 was allotted 200 sq. ft (201 x 10'') by agreement dated 30.9.1993 and Shri Dev Prasad Tiwaripetitioner No. 6 was allotted 200 sq. ft. (20''. x 10'') on the same plot by agreement dated 22.10.1993. One Shri Shanker Gupta alleged to be represented by the petitioners in other writ petition was allotted 400 sq. ft. (20'' x20'') of the same plot by agreement dated 26.8.1989.

It is stated in the writ petition that the petitioners are regularly paying premium under the agreements. They are managing the premises demised to them under the agreements. They have kept their Chhappar/Gumtis and are carrying on their business on the land and are earning their livelihood. It is stated in para10 of the writ petition that all the allotments were made on the 20 ft. wide strip at the farthest end of the eastern side of the road leaving 60''x 80'' including mettalled portion of 15 ft. with its ''patari'' in the middle and beyond 20 ft. wide land on the west. The occupation does not cause any hindrance in the movement of traffic and the people, and adds to the convenience of the people of the town, traders and artisans providing protection against the encroachments. It also adds to the income of the financial strained Town Area for beneficial work. In paragraph11 it is stated that plot Nos. 558 and 562 of village Madariya alias Gola lie on the eastern side of the road. In between these plots and the road plot No. 528, lie another plot No. 574. It is in the shape of a strip. The plot No.558 area 0.02 acre and 562 area 4.375 acre are recorded as ''pokhari'' and ''talab'' in the revenue records. These plots are flooded throughout the year and no cultivation is possible. In paragraph 12 it is stated that one Shri Jayshree got his name illegally recorded over these plots. Shri Veer Bahadur Chand and others filed a Suit under Section 229B of the U.P. ZA & LR Act, praying for declaration that they were bhumidhars of plot Nos. 558 and 562. In the suit a fraudulent compromise dated 29.7.1995 was filed between the plaintiffs and Jaishree. The State of UP and Town Area Gola were not impleaded as parties and were not served with any notice. The entire file of the suit is forgery of records and that the compromise deed is also forged.

Shri Veer Bahadur Chand and others all sons of Ram Kripal Chand made a complaint on 7.1.1999 and requested to cancel the allotments of land in favour of the petitioners. These applications were moved on the allegations, that the applicants are bhumidhar of Gata No. 562. The main road of Town Area Gola from Kauri ram and Gola passes through Chand crossing. On the east of this road there is a road side patri (pavement) recorded as Khasra No. 528, which is the only way through which the applicants can pass through, to reach their bhumidhari gata No. 526. The width of the road is not more than 2530 ft. The Town Area Committee has committed gross illegality in allotting this land under Sections 292/293 of the Act. No such allotment can be made for temporary structure and no permission can be given for any constructions over the road side patari. The allotments have caused'' obstructions on the road, causing difficulty in movement and there is a possibility of traffic jams. The allotments have been made without any publication, to the persons, who are not residents the Town Area Gola and that the entire process of allotment is bad in law. It is thus necessary and in the interest of justice to cancel the allotments for allowing the applicants a passage and for smooth movement of the traffic in public interest. In pragraph11 of the application, it is stated that when the commuters were stopped from using the pavement, the applicants caused enquiries on 22.12.1998 and found out the allotment orders. They applied for copies of the allotment orders received by him on 1.1.1999. The applicant was ill from 2.1.1999 to 7.1.1999 and has filed applications, after engaging a counsel.

The petitioners contested the application on the ground of delay in making the complaint. They filed objections stating that Shri Shanker died four year''s ago. His three sons are minors. The applicants had full knowledge of the allotment and that under Section 293 (1) of the Act, the Town Area has a right to make allotments in order to save the road side patari and encroachment. There is sufficient space left by the Nagar Panchayat for movement of the traffic and for commuters and that there is no obstruction to the free flow of the traffic. The land in plot No. 526, is in the shape of the pond for which there is alternate passage available to the applicants. The complainants do not have a right to cause loss to the Nagar Panchayat only to reach his plot from the road.

The District Magistrate, Gorakhpur issued notices and after hearing the parties found that the allotments have been made in contravention of Sections 292 and 293 of the Act. The Nagar Panchayat could not have given permission to make constructions within 60 feet from the middle of the road on the pavement. The width of the road between plot Nos. 562 and 528 is only 25'' x 30'' as disclosed in the affidavit of the applicant. The allotment file does not give the width of the pavement, which supports the case of the applicants that there is only 25'' x 30'' of land. If any permanent constructions are permitted on this land, the entire road will be blocked and will cause serious difficulty to the public in movement on the road. Section 39 (A) of the Town Area Act gives authority to the District Magistrate to decide the matter. The District Magistrate found that the allotment is illegal and invalid and thus cancelled the allotments dated 27.2.1992 and 30.4.1993 and forwarded the file to the Nagar Panchayat Gola vide his order dated 11.8.1999.

The District Magistrate passed similar orders in respect of other petitioners against which an Appeal No. 9/G was filed in the year 1999. The other allottees also filed appeals before the Commissioner. The Commissioner found that the orders passed under Section 39(A) of the Town Area Act are not appealable and thus dismissed the appeal on 28.7.2000, as not maintainable.

Shri V.K.S. Chaudhary. learned Senior Counsel appearing for the petitioners submits that the resolution passed by Town Area Committee was approved by the District Magistrate, and that thereafter the bye laws were framed giving authority to the Town Area, to enter into agreements for protecting the land from encroachments. There is no evidence of obstructions or any inconvenience to general public. The road patari on the crossing is very wide and was vacant. The Town Area Committee apprehending encroachments decided to utilise the land for plan development, which would not have caused any obstruction. The District Magistrate does not have power under Section 34 (1 A) of the Act to cancel any resolution. He can only prohibit the execution, or further execution of a resolution or order passed or made under the Act or any other enactment by a Committee or a Joint Committee, or any officer or servant of a Municipality, if in his opinion such resolution or order is of a nature to cause or tend to cause danger to human life, health or safety or a right or a riot or affray, and may prohibit the doing use by any person of any act. in pursuance to such resolution. The District Magistrate could not have cancelled the agreements entered into in pursuance to the resolution, on the applications filed by an interested persons, who had obtained a fraudulent order under Section 229B of UP ZA & LR Act on a compromise against a private individual. Shri Chaudhary submits that the cause of action for making the application was to provide a passage to the complainant Shri Veer Bahadur Chand to his gata No. 562, which is in fact a pond. He has an alternative passage. He has no business or occasion to complain against the allotments made in pursuance to a valid resolution for saving the land from encroachments and for providing some income to the Town Area Committee. The District Magistrate has acted beyond his powers in canceling the resolution and the settlements with the petitioners, who have raised temporary structures and are carrying their business without making any obstructions or any inconvenience to the general public.

The Town Area Committee is a local body set up in urban development of the semi urban areas. It functions through a Committee to carry out the duties and responsibilities given to it under the Town Area Act. The Act provides for powers of taxation, recovery of municipal claims, powers to sanction and to levy and penalty in respect of buildings, public drains, streets, extinction of fires, scavenging and water supply. The Town Area Committee is required to maintain the public streets and the roads for public convenience. It is under obligation to remove encroachments and projection over streets and drains and to control and regulate the constructions of any buildings or streets or drains beyond the municipal areas. It is also under duty to remove accidental obstructions and to regulate troughs and drain water pipes affecting the streets. Section 219 of the Act applicable to Town Areas, gives it powers to construct, improve, and provides sites on public streets. A municipality can lay out and make new public street and construct tunnels and other works subsidiary to the same; widen, lengthen, extend, enlarge or otherwise improve any existing public street; turn, divert, discontinue or close any public street. Clauses (d) to (f) of Section 219 of the Act authorizes the municipality to provide within its discretion building sites of such dimensions to abut or to adjoin any public streets made widened, lengthened, extended enlarged or improved; acquire any land along with the buildings there on, which it considers necessary for the purposes of any scheme or work undertaken or projected in exercise of the powers. The municipality can also transfer lease, sell or otherwise dispose of any property acquired under clause (e) or any land used by the municipality for a public street and no longer required there for, under subclause (f) and in doing so impose any condition as to the removal of any building existing thereon, or to the description of any new building to be erected thereon. The Municipality also has a duty under Section 220 to make bye laws. Sections 220 and 223 provide:

"220. Use of public streets by vendors and other persons Notwithstanding any right or privilege (previously) acquired, accrued, or enjoyed in a municipal area for which byelaws under subhead (b) of heading of Section 298 have been made and are in force, no itinerant vendor, or any other person, shall be entitled to use or occupy any public street or place for the sale of articles or for the exercise of any calling or for the setting up of any booth or stall without the permission of the Municipality given in accordance with such byelaws.

Duties of Municipality when constructing public streets, etc.

(1) The Municipality shall, during the construction or repair of a public street or of any waterworks, drains or premises vested in it, or whenever any public street, water works, drains or premises vested in it have, for want of repair or otherwise become unsafe for use by the public, take all necessary precautions against accident by

(a) shoring up and protecting adjacent buildings; and

(b) fixing bars, chains or posts across or in any street for the purpose of preventing or diverting traffic during such construction or repair; and

(c) guarding and providing with sufficient lighting from sunset to sunrise any work in progress.

(2) Whoever, without the authority or consent of the Municipality in any way interferes with any arrangement or construction made by the Municipality under subsection (1) or guarding against accident shall be liable on conviction to a fine which may extend to fifty rupees."

In Sanjay Mishra v. Nagar Palika, Etawah, AIR 1987 Allahabad 276, this Court, relying upon Bombay Hawkers'' Union v. Bombay Municipal Corporation, AIR 1985 SC 1206 and Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, held that a municipal body should not permit encroachments or scatters on a public street, which leads to chaos. The city planning requires the streets and pavements to be free from encroachment. The civil minded citizen expects a street and pavement to be free from obstructions. Sections 2 (18) and 2 (19) of Act defines ''public place'' and ''public street''. A public place under Section 2(18) means a space, not being private property, which is open to the use of enjoyment of the public, whether such space is vested in the board or not, and a public street means under Section 2 (19) of the Act a street (a) which is declared a public street by the board under the provision of Section 221, or (b), which with the consent, express or implied, of the owner of the land comprising the street, has been levelled, paved, metalled, channelled, sewered or repaired out of the municipal or other public funds. These definitions are to be found in other pan materia enactments and with all its gramatical variations having same meaning and purpose. In Olga Tellis (supra) the Supreme Court held in paras 38, 43, and 57 as follows:

"38. These provisions, which are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument of the petitioners is that the procedure prescribed by S. 314 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, it provides expressly that the Municipal Commissioner may cause the encroachment to be removed "without notice."

In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorization and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorized so to use it, he becomes a trespasser. The common example which is cited in some of the English cases (see, for example Hickman v. Maisey, (1900) 1 QB 752) is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorized. As stated in Hickman, it is not easy to draw an exact line between the legitimate user of a highway as a highway and the user which goes beyond the right conferred upon the public by its dedication. But, as in many other cases, it is not difficult to put cases well on one side of the line. Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. Section61 of the Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under Clause (d) of which, it is its duty to take measures for abatement of all nuisances. The existence of dwellings on the pavements is unquestionably a source of nuisance to the public at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fallout of pedestrians in large numbers on highways and streets constitutes a grave traffic hazzard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. Under Clause (o) of Section 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets and other public places. The counteraffidavit of the Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. Since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature''s call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths.

To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground, that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which we repeat, must be made good. Stated briefly, pavement dwellers who were cenused or who happened to be censused in 1970 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purpose, in which case, alternate sites or accommodation will be provided to them; the ''Low Income Scheme Shelter Programme'' which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and the ''Slum Upgradation Programme (SUP)'' under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date parties may apply to this Court. Pavement dwellers, whether censused or uncensused, will not be removed until the same date viz. October, 31, 1985."

In U.P. Krishak Samaj Lucknow v. Administrator, Nagar Mahapalika Allahabad, 1986 UPLBEC 781 the Court noticed the legal position and observed as follows:

"It is at this juncture where the Courts are obliged to call upon local bodies to administer, plan and maintain urban areas in accordance with their statutory obligations. Public parks, open spaces, and public streets are for the thousand and millions in the towns, cities and metropolises. Such areas are not to be occupied by a few, so that they hold the entire city to ransom by denying access to such areas in derogation of the purpose for which they were created."

There is a constant influx of rural population in the cities in search of food, shelter and opportunities of employment. The cities have not been able to cope up with the large scale migrations, putting the entire city planning into disarray. We can see villages coming up on the road sides in the cities. Instead of developing the cities to keep pace with the population, the civic bodies have allowed the cities to be converted into semirural areas. In every city, slums have come up near the places where the high rise buildings are constructed, or on the public land and roads. The civic bodies sleep over the matter until there is a public outcry, over the matter. In many places the movements on the pavements becomes difficult and roads get blocked. The digging up of drains and laying of telephone and sewer lines take months to be completed causing narrowing of roads traffic jams. We can see the contrast in the areas managed by Contonement Boards where such illegal and unauthorised occupations are not tolerated. The municipal bodies have forgotten to discharge their statutory duties, and feel satisfied with occasional drive to remove encroachments as an attempt to solve the problem.

In the present case, on a misplaced concern the Town Area Committee, in order to save the open pavement adjoining metalled road, leading to town area, decided to make bye laws, to let out the land under an agreement for a period of 30 years to raise temporary constructions. The object to pass the resolution under Section 293 (1) of the Act applicable to Town Area was ultra vires the Act and against the very purpose for which the Town Area was established. In order to avoid encroachments the Town Area Committee resolved to legalise encroachments and authorized the lessees to raise temporary constructions on the pavements. The Town Area did not realise its statutory duty to protect the roads and pavements from encroachments and to minimize obstructions and traffic congestions.

Section 293 of the UP Municipalities Act, 1916 applicable to Town Area provides:

"293. Fees for use, otherwise than under a lease of municipal property. (1) The Municipality may charge fees to be fixed by byelaw or by public auction or by agreement, for the use or occupation (otherwise than under a lease) of any immovable property vested in. or entrusted to the management of the Municipality including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.

(2) Such fees may either be levied along with the fee charged under Section 294 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI."

Section 293 of the Act, giving authority to the municipality to charge fees, for use or occupation of any municipal property, has to be read along with the duties of the municipality for protecting the public streets and pavements from encroachments under Sections 210 and 211 of the Act, which provides for penalty for constructions or projection over streets or drains without permission and to remove encroachments or projections over street and drains. The ''public street'' as referred to above under 2(19) means a street, (a) which is declared a public street by municipality under the provisions of Section 221, or (b) which with the consent, express or implied, of the owner of the land comprising the street, to be levelled, paved, metalled, channelled, sewered or repaired out of the municipal or other public funds. The ''street'' means under section 2 (23) of the Act:

"(23) "Street" means any road, bridge, footway, lane, square, court, alley or passage which the public or any portion of the public, has right to pass along and includes, on either side, the drain or gutters and the land up to the defined boundary of any abutting property, notwithstanding the projection over such land of any verandah or other superstructure."

The Town Area Committee, in exercise of its powers and duties under the Act, is required to maintain the streets, which include the pavements free from encroachments for travelling public. It does not have powers under Section 293 (1) of the Act to charge fees for use of such streets or pavements and allow constructions to save it from encroachment or for raising funds. The powers under Section 293 (1) cannot be used to let out public streets or the pavements under a lease deed for raising constructions. At best these powers can be interpreted to include the powers for charging fees to be fixed by the bye laws for temporary use and occupation and the use and occupation if such user does not obstruct or cause inconvenience to the general public. This power is coupled with the obligation that such use and occupation cannot be by way of a settlement of the immovable property, and would certainly not include letting of pavements abutting public streets.

With the increase in the number of vehicles and the influx of the population in urban areas, the streets have to be widened and various amenities like sewer, telephone lines etc. have to be laid under the pavements. The Town Area and the Municipality, therefore, do not have any right to let out the pavements, however, wide they may appear to be at that time for long periods under agreement for raising temporary or permanent constructions. The municipal bodies are required to maintain these streets and pavements for general public and have obligation to provide civic amenities. They cannot create rights over the street which may become the cause of obstructions. Conceding such rights to the municipality would be allowing them to give license for encroachments.

In this case the resolution dated 28.5.1987 passed by the Town Area Committee, Gola purportedly under Section 293 (1) of the Municipalities Act applicable to Town Area Gola, starts with a recital that after keeping 40th for road including patari and nali, the land on both sides of the road shall be temporarily let out by the Town Area. We find that the Town Area was entirely misdirected for allowing letting out of the land on both sides of the road leading to the town area after leaving only 40 ft. of the road including patari, in all for movement of traffic. The Town Area Committee did not have any authority to pass such resolution. It failed to take into account the future requirement of expansion of the road. The District Magistrate rightly found that the resolution is beyond the powers of the Town Area Committee, and is thus bad in law and was liable to be set aside. 22. The objection, that the District Magistrate did not have the powers to cancel the resolution under Section 39 (A) of the Town Area Act with its pari materia provisions in Section 34 (1) (A) of the Act cannot be accepted. Subsection (1) of Section 34 authorizes the Prescribed Authority, by order in writing, to prohibit the execution or further execution of a resolution, which causes or tends to cause obstruction, annoyance or injury to the public or to any class or body of person lawfully employed and may prohibit the doing or continuation by any person of any act in pursuance for under cover of such resolution or order. These powers given to the District Magistrate under subsection (1A), to be exercised within the limits of his district, and the State Government under subsection (IB) within the State are to prohibit the execution or further execution of a resolution or order passed or made under the Act or any other enactments of the Municipality or a Committee. The power is coupled with the duties under subsection (4), if so required by the authority making the order to take any action which it would have been entitled to take if the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything under the cover of the resolution or order of which the further execution is prohibited. In this case the District Magistrate has found that the Town Area Committee did not have the authority to pass a resolution and to let out the land on the pavements of the road .leading to the city, under an agreement for raising temporary constructions. He found that the land with a width of only 25''x 30'' on both the sides of the road, would lead to obstructions and inconvenience to the general public. He has thus prohibited the execution of the resolution for execution of the lease deed to be renewed every year. The Town Area was required to carry out the orders and to stop the execution of the renewal of the agreement. We find that the District Magistrate has rightly exercised his powers in public interest for the benefit of the general public.

It was submitted by learned counsel for petitioners that once a resolution passed in pursuance to the bye laws was executed and a lease deed has come into existence with a right of renewal, the powers under Section 34 (1A) cannot be exercised by the District Magistrate.

The powers of the Prescribed Authority or the District Magistrate are in the nature to protect the danger to human life, health or safety and include the powers to prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. The District Magistrate could not have cancelled the lease deeds. He however could have directed that the continuance of the lease deeds, namely its renewal may not be granted any further by the Town Area committee.

In the present case, the lease deeds were executed in the year 1993 with a clause for renewal after every ten years. The renewal is subject to adherence to the conditions of the lease or the provisions of the Act. The District Magistrate has therefore powers under Section 34 (1 A) to prohibit the continuance of any act under the resolution of the Town Area Committee. In this case the District Magistrate has cancelled the allotment orders. We find that the District Magistrate had rightly exercised his powers in public interest that his orders will operate to the effect of continuance of the resolution and the renewal lease deeds. The lease deeds therefore shall not be renewed by the Town Area Committee any further. If the Town Area Committee has not renewed the lease deeds after the order of the District Magistrate, the petitioners would not have any right to continue to occupy the subject land.

The writ petition is dismissed. The interim orders are discharged.