Municipality must keep footpaths free for pedestrians, says court, directs cafe to remove van
The Calcutta High Court was hearing a plea filed by the Asansol-based cafe challenging directions issued by the municipal body to remove a van allegedly used for business activities on a portion of the footpath.
The Calcutta High Court noted that the municipal authorities had already examined the issue and directed removal of the encroachment. (AI-generated image) Calcutta High Court news: The Calcutta High Court recently refused to interfere with a demolition notice issued against an Asansol-based cafe, holding that payment of licence fees for parking cannot legitimise encroachment on public land or override the municipality’s duty to keep footpaths free for pedestrians.
Justice Raja Basu Chowdhury was hearing a petition filed by Hindustan Cake Walk Café and Sweets, which challenged directions issued by the Asansol Municipal Corporation to remove a van allegedly being used for cooking and business activities on a portion of the footpath.
“There cannot be any estoppel against the municipality to make the footpath and the government land encroachment-free. The municipality cannot be compelled to perform its promise in the form of grant of licence for parking on the footpath and public land when the same seeks to interfere with free pedestrian movement. Estoppel thus must yield to equity for larger public interest; it demands,” the May 21 order read.
Justice Raja Basu Chowdhury found that the petitioners have failed to identify any procedural irregularity or any justifiable grounds to resist the state from acting in public interest and to free the footpath.
‘Municipal body directed removal of encroachment’
- The court noted that the municipal authorities had already examined the issue and directed removal of the encroachment, finding no illegality, arbitrariness or procedural infirmity in the decision.
- The court found that the petitioners have failed to identify any justifiable grounds to resist the state from acting in public interest, to free the footpath or, for that matter, for the petitioners to encroach upon public land in the form of a footpath.
- The Calcutta High Court found that the petitioners’ claim that they are authorised to park in front of their shop room; such parking licence cannot authorise the petitioners to encroach government land unauthorisedly and illegally.
- The grant of such permission in the form of a licence cannot compel the government to permit the continuance of the van being parked for cooking food and aiding business, which is otherwise prohibited.
- The high court noted that the petitioners were authorised by the municipal authority to carry on business.
- The court found that subsequently the petitioners encroached some area of government land unauthorisedly, where a van is parked which is in front of the petitioners’ business premises.
- It was found that the same is obstructing the free pedestrian movement and the van is also used for cooking purposes, which is not permitted under the provisions of the West Bengal Municipal Corporation Act, 2006.
- The court found that the petitioners failed to demonstrate how they were prejudiced by non-supply of the complaints, especially when they could not establish any legal right on the government land.
- The petitioners cannot make out a case that they had been authorised by the municipal authorities to develop the flooring in front of the shop room.
Running business with valid certificate
The dispute arose after the owners of Hindustan Cake Walk Café and Sweets in Asansol challenged a municipal order directing them to remove an alleged encroachment on public land in front of their establishment.
The petitioners argued that they had been running their business with a valid certificate of enlistment and had also been paying licence fees to the Asansol Municipal Corporation for a private parking space in front of the shop.
They contended that despite the municipality accepting such fees, they were suddenly served notices in May alleging illegal encroachment of public road and land.
The municipal corporation, however, maintained that the petitioners had unauthorisedly occupied around 960.33 sq ft of government land, where a van used for cooking and business activities was parked, obstructing free pedestrian movement on the footpath.
Following a site inspection and hearing, the authorities directed the petitioners to remove the encroachment, structural shed and permanent flooring. Aggrieved by the order, the petitioners approached the Calcutta High Court seeking protection from demolition and enforcement action.
Construction not permanent
Appearing for the petitioner, Senior Advocate Debajyoti Basu argued that the demolition order had been passed in an irregular manner and that the alleged structure could not be classified as a permanent construction.
It was submitted that in the absence of a permanent structure, no demolition action could be justified.
The petitioners further contended that since the municipality had granted a valid parking licence, which remained in force, it was barred from subsequently treating the parking arrangement as illegal. On this basis, it was argued that the impugned order was arbitrary and liable to be set aside.
Opposing the plea, advocate Sounak Bhattacharya, appearing for the Asansol Municipal Corporation, submitted that the petitioners were illegally occupying a portion of the footpath and carrying on commercial activities therefrom.
He argued that no individual can claim a right over a public footpath and that a parking licence cannot authorise illegal occupation or commercial use of public land.
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