Encroachment and Removal (Sections 322–330)

A public street is held in trust for the free passage of every citizen, yet it is also the most contested strip of urban space in Delhi. Sections 320 to 330 of the Delhi Municipal Corporation Act, 1957 form the Corporation's working toolkit for keeping streets open: they prohibit obstructions and projections, empower summary removal of anything unlawfully deposited, and prescribe how seized articles are disposed of. The removal power in Section 322 is deliberately summary, but the courts have layered a body of constitutional and natural-justice doctrine over it, balancing the Corporation's duty to clear thoroughfares against the hawker's right to livelihood and the settled encroacher's right to notice. This article reads Sections 322-330 against the leading authorities that govern their exercise.

The statutory scheme: where the removal power sits

The encroachment provisions are housed in the Act's chapter on streets, immediately after the heads of duty and the regulatory architecture built around the Commissioner and the municipal establishment. The chain begins with prohibitions and ends with enforcement. Section 320 prohibits the erection of any wall, fence, rail, post, step, booth or other structure, whether fixed or movable and whether permanent or temporary, in a street except with the Commissioner's permission. Section 321 prohibits placing or depositing on any street any stall, chair, bench, box, ladder, bale, or other thing whatsoever, again except with the Commissioner's permission and on payment of such fee as he thinks fit in each case. Section 322 then supplies the teeth: it confers the power to remove anything deposited or exposed for sale in contravention of the Act.

The structure is therefore prohibition (Sections 320-321), enforcement (Section 322), regulation of cognate nuisances (Sections 323-325), disposal of seized goods (Section 326), and a cluster of street-management duties (Sections 327-330). Reading the removal power in isolation is the commonest error; it operates only against what Sections 320 and 321 have already declared unlawful.

Section 322: the summary power to remove

Section 322 empowers the Commissioner, by himself or by any municipal officer or employee, to 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 width of the language, "or other thing whatsoever," is deliberate: it captures movable encroachments of every description, from a vegetable cart to an awning projecting over the footpath.

Two features mark the power as summary. First, it targets articles already unlawful under Sections 320-321, so the illegality is established by the deposit itself rather than by any adjudication. Second, the section does not, on its face, require prior notice before removal of goods exposed for sale or deposited in breach. This summary character is what distinguishes Section 322 from the demolition machinery in Section 343, which deals with unauthorised building work and carries its own elaborate notice-and-appeal procedure. The two must not be conflated: Section 322 clears the street surface; Section 343 pulls down unauthorised construction.

Projections, obstructions and the public's right of passage

The conceptual foundation of the entire chapter is that a public street vests in the Corporation for the benefit of the public, who enjoy a right to pass and re-pass freely and safely. In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121, the Supreme Court held that a municipal body is under a statutory and constitutional obligation to keep footpaths and carriageways free for pedestrians and traffic, and consequently has a duty, not merely a discretion, to remove encroachments. The same principle animates Section 320's bar on obstructive structures and Section 322's removal power.

A projection over or into a street, an awning, a signboard, a flight of steps spilling onto the footpath, is an encroachment on this public easement even where the building itself is lawful. That is why Section 322 expressly reaches things "projected, attached or suspended" and not merely things "placed" on the ground. The Corporation's case for removal does not depend on proving traffic obstruction in the particular instance; the unauthorised occupation of dedicated public space is itself the mischief the section addresses.

Hawkers, livelihood and Article 19(1)(g)

The hardest cases under Section 322 involve street hawkers, because removal collides with the constitutional right to carry on trade. In Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155, a Constitution Bench held that a hawker has a fundamental right under Article 19(1)(g) to carry on trade on a public street, but that this right is subject to reasonable restrictions under Article 19(6) and confers no right to occupy any particular spot. The Corporation may therefore regulate, confine, or prohibit hawking where the road is too narrow, near hospitals, or where security requires, and may remove hawkers operating outside a sanctioned scheme.

This was carried forward in Gainda Ram v. Municipal Corporation of Delhi, (2010) 10 SCC 715, where the Supreme Court held that the right to hawk can be restricted only "by a law" and not by mere executive schemes, and directed Parliament to enact a statutory framework, which culminated in the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. After that Act, removal of an identified street vendor must respect the survey, certificate of vending, and relocation machinery of the 2014 Act; the bare Section 322 power cannot be used to defeat a vendor holding a valid certificate. The regulatory logic mirrors the scheme-and-zone approach approved in Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, (2014) 1 SCC 490.

Natural justice: when notice is required before removal

Although Section 322 is summary, the courts have grafted a notice requirement onto its exercise in defined situations. The governing authority is again Nawab Khan Gulab Khan, where the Supreme Court drew a distinction that has become the working rule: if the encroachment is recent and the encroacher has just settled, the Corporation may remove it without notice; but where the Corporation has knowingly permitted the encroacher to remain for a long period, fairness requires reasonable notice, generally two weeks or ten days, served personally or, where that is impracticable, by substituted service, before removal.

The doctrinal basis is that a long-tolerated encroacher acquires not a right to remain, but a right to be heard before being displaced, and to a reasonable opportunity to remove his goods. This dovetails with the principle in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, that even a trespasser must be asked, and given a reasonable opportunity, to depart before force is used, and that force must be no more than reasonable. The takeaway for Section 322 is practical: summary removal is safe against fresh and mobile encroachments, but a prudent Corporation issues notice wherever occupation has been settled or tolerated, lest the removal be quashed for breach of natural justice.

Section 323: tethering of animals and milking of cattle

Section 323 prohibits, in any street or public place, the tethering of any animal so as to cause obstruction or nuisance, and the milking of any cow or buffalo. The provision treats stray-cattle nuisance and the dairying of public space as cognate street offences. Its practical importance lies in linkage: an animal tethered in breach of Section 323 is a "thing" liable to be dealt with under the removal and disposal machinery, and the offence attracts penalty under the Act's general penal provisions. The section reflects the chapter's wider purpose, that the street is for movement, not for private commercial or husbandry use.

Sections 324-325: works near streets and digging up the carriageway

Sections 324 and 325 regulate lawful but potentially dangerous uses of the street. Section 324 requires that any person executing works in or near a street, or repairing a street, take proper precautions, fencing, guarding, and adequate lighting, against accidents to passers-by. Section 325 prohibits any person other than the Commissioner from opening, breaking up, displacing, taking up, or making any alteration in a street, or depositing building materials on it, without the Commissioner's written permission.

These provisions complement the removal power: where work is done or materials deposited without the Section 325 permission, the deposit is itself a contravention and the materials become removable under Section 322. The two sections also import a safety dimension absent from the bare prohibition in Section 321, recognising that even permitted street works create hazards that the Corporation must control. They sit alongside the Corporation's broader regulatory functions exercised through its deliberative and executive wings.

Section 326: disposal of things removed

Section 326 governs what happens to articles seized under the chapter. The Commissioner may dispose of any thing removed under the chapter by public auction or in such other manner, and within such time, as he thinks fit. The proceeds are applied first to meet the expenses of removal and storage; the balance, if any, is returned to the owner, provided the owner claims it within one year, failing which it is forfeited and credited to the Municipal Fund.

This regime is important to the constitutional defensibility of summary removal. Because Section 326 preserves the owner's proprietary interest in the value of the goods, removal under Section 322 does not amount to confiscation; it is a temporary deprivation cured by the right to reclaim either the article or its sale proceeds. The one-year limitation and the duty to account for proceeds are the procedural safeguards that keep the summary power within Article 300A's guarantee against deprivation of property save by authority of law. A removal that destroys perishable goods without offering the owner this accounting is vulnerable to challenge.

Sections 327-330: naming, dangerous places and lighting

The closing sections of the cluster turn from enforcement to street management. Section 327 empowers the Commissioner to determine the name or number by which any street shall be known and to cause name-plates and numbers to be fixed, and forbids unauthorised alteration of such names or numbers. Section 328 directs the Commissioner to take steps for repairing or enclosing dangerous places, requiring an owner or occupier to repair, protect, or enclose any place that is dangerous to passers-by, and empowering the Commissioner to act in default. Section 329 obliges the Commissioner to take measures for lighting public streets and places as the Standing Committee specifies, and Section 330 prohibits any person, without lawful authority, from taking away, breaking, throwing down, or damaging any lamp, lamp-post, or appurtenance.

Though less litigated than Section 322, these provisions complete the chapter's logic: having defined what may not obstruct the street and how obstructions are cleared, the Act vests in the Corporation the affirmative duties of naming, securing, and lighting the public way. They are the everyday counterpart to the dramatic removal power, and their breach, like leaving a dangerous excavation unguarded, can found both penal liability and a civil claim against the Corporation.

Exercising the power lawfully: a practitioner's synthesis

Pulling the threads together, a lawful removal under Section 322 requires that the article fall within Sections 320 or 321, that any applicable statutory regime, notably the Street Vendors Act, 2014 for certified vendors, be respected, and that natural justice be observed where the encroacher has been long tolerated. The doctrine from Nawab Khan Gulab Khan and Olga Tellis means notice and a reasonable opportunity to remove goods are the safer course outside cases of fresh, mobile, or exposed-for-sale encroachment. Disposal must then follow Section 326's auction-and-account procedure, preserving the owner's claim for one year.

For the aspirant, the examinable contrasts are three: Section 322 (summary removal of street deposits) versus Section 343 (notice-and-appeal demolition of unauthorised building); the regulated right of the hawker under Article 19(1)(g) per Sodan Singh and Gainda Ram versus the no-right of the random encroacher; and the role of Section 326 in keeping summary seizure on the right side of Article 300A. These distinctions connect the streets chapter to the Corporation's wider revenue and regulatory machinery, including property taxation, and to the constitutional framework within which all municipal coercion must operate.