C.W.P. No.4886 of 2003 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P. No.4886 of 2003
Date of decision: October 04, 2008.
Court on its own motion
...Appellant(s)
v.
State of Punjab & Anr.
...Respondent(s)
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SURYA KANT
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present: Shri S.S. Behl, Advocate for the applicant.
Shri M.L. Saggar, Sr. Advocate with
Shri G.S. Brar, Advocate
Shri Amol Rattan Singh, Additional Advocate General, Punjab.
Shri Ashok Aggarwal, Sr. Advocate, with
Shri Mukul Aggarwal, Advocate, for MC Ludhiana.
Shri Vinish Singla, Advocate, for MC, Patiala
Shri T.S. Dhindsa, Advocate for MC Amritsar.
ORDER
Surya Kant, J. –
Aggrieved at his removal as a Councillor of the Municipal
Corporation, Ludhiana, one Satpal Puri filed CWP No.15572 of 2001 which
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was dismissed by a Division Bench of this Court on 29.5.2002. The said
Satpal Puri filed SLP (Civil) No.22649 of 2002 in the Supreme Court.
While dismissing the SLP, their Lordships directed that “the Bench which
passed the impugned order shall, after examining the record of the case,
register a suo moto public interest case, issue notice initially to the
Municipal Corporation and the State Govt. to appear, also directing them
to carry out a survey so as to find out how much public property has been
encroached upon and how many constructions have come up which
would have the effect of defeating the Town Improvement Scheme.”
[2]. This is how these suo moto proceedings came to be initiated by
this Court in public interest, calling upon the State of Punjab and the
Municipal Corporation of Ludhiana to undertake “a comprehensive survey
of the entire municipal area of Ludhiana to identify unauthorized
encroachments/ construction on govt. lands and municipal lands as also
constructions made in violation of the sanctioned plan or without obtaining
the sanctioned plan”.
[3]. On 6.12.2003, it was informed on behalf of the Municipal
Corporation that in a large number of cases encroachments could not be
removed due to the restraint orders passed in about 200 cases pending in
different civil courts at Ludhiana. Taking notice thereof and in order to
ensure that the process of the court is not abused or misused by those who
have made encroachments on public and municipal lands, this Court
directed the Municipal Corporation, Ludhiana to apply for vacation of
injunction orders in all the pending cases. A further direction was issued to
the District & Sessions Judge, Ludhiana to ensure that applications for
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vacation of injunction orders are heard and decided by the concerned courts
within a period of six weeks.
[4]. Vide a subsequent order dated 10.2.2004, the State Govt. was
restrained from regularizing unauthorized encroachments and constructions
made in the municipal area of Ludhiana. Thereafter, on 19.2.2004, the said
restraint order was expanded qua all the municipal areas in the State of
Punjab with a further direction to the Commissioners/Chief
Executives/Executive Officers and Secretaries of all Municipal
Corporations, Municipal Councils, Municipal Committees and Nagar
Panchayats to ensure that no body is allowed to make encroachments on all
public lands including those falling in the municipal areas.
[5]. Meanwhile, the Municipal Corporation, Ludhiana filed a status
report dated 19.5.2005 informing that there were 108 cases of
encroachments on land measuring 400 square yards and above and in all,
land measuring 2,42,363.14 square yards was under unauthorized
possession. It was further reported that 22 encroachments involving land
measuring 1,16,817.74 square yards had been made by the Government
institutions, such as civil hospitals/dispensaries/police stations, etc.
[6]. On 20.5.2005, the scope of these proceedings was further
enlarged as status report in relation to encroachments on public lands in
other Districts of Punjab was also sought. On 25.8.2005, Municipal
Corporation, Ludhiana informed this Court that 68 big encroachments had
since been removed and land measuring more than 1 lac square yards stood
retrieved. It was further informed that lawful action had already been taken
against the remaining encroachers. As regards the areas falling within the
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municipalities of Jalandhar, Amritsar, Bhatinda and Patiala, the State
Government sought and was granted time to file their status reports. On
23.5.2006, status reports were filed by the Municipal Corporations,
Ludhiana, Amritsar and Jalandhar, followed by the status reports of
Ludhiana and Patiala on 12.9.2006. Needless to say that the object of
obtaining periodical status reports was to keep the authorities hammered to
ensure that all the encroachments were removed from the
government/public lands in possession of unauthorized occupants.
Somewhat similar directions were reiterated by this Court vide order dated
18.12.2006.
[7]. Laying emphasis on the fact that planned development with
sufficient green space, parking etc. go a long way in making way for a
decent living which further gives substance and meaning to right to life and
liberty in terms of the mandate contained in Article 21 of the Constitution,
this Court vide order dated 30.10.2007 directed the Municipal Corporation,
Bhatinda to file a detailed affidavit with regard to the encroachment cases
pending in the local courts. Similarly, the fact that Municipal Corporation,
Patiala had removed encroachments from an area measuring 33,510 sq.
yards out of the total encroached area of 41,520 sq. yards was taken
cognizance of and a learned Senior Counsel of this Court was requested to
visit Patiala and carry out an inspection of the city to find out the extent of
encroachments on the government or municipal lands, if any. The Court
Commissioner was requested to meet the NGOs or other organizations to
find out the extent of encroachments by the individuals.
[8]. However, on a consideration of the various status reports filed
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by the Municipal Corporations of Ludhiana, Patiala, Amritsar and Bhatinda
from time to time, this Court noticed some inherent contradictions in the
explanations rendered by the Municipal Corporations on removal of
encroachments and/or treating even those persons as encroachers who had
bona fide sale-deeds in their favour and raised construction after getting the
building plan sanctioned from the competent authority. Similarly, non-
finalization of a comprehensive scheme for the development of Amritsar
was also viewed seriously. As regards Patiala, this Court took exception to
the fact that as per the report of the Court Commissioner, certain
Councillors had themselves encroached upon the roads and have filed cases
in civil courts. As regards Bhatinda, it was noticed that in various cases of
encroachments of public streets, parks and roads, the subordinate courts had
granted injunction orders. The directions were, therefore, issued to
Municipal Corporation, Patiala to file a proper affidavit, to Municipal
Corporation, Amritsar to submit the comprehensive scheme for
development, and to Municipal Corporation, Patiala to submit the details of
the court cases and their status with a direction to the subordinate courts at
Bhatinda to dispose of the cases of encroachments pending before such
courts. On 27.2.2008, the Municipal Corporation, Ludhiana was reminded
of the fact that either there should be a policy under which the government
institutions/schools, etc. could be raised on a public land by encroachment
or the municipal authorities should act within the parameters of law.
[9]. We have heard at some length Counsel for the Municipal
Corporations, learned Additional Advocate General, Punjab as well as
counsel for the interveners and perused the latest status reports filed by the
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four Municipal Corporations.
[10]. Though it appears that under the directions issued by this Court
from time to time, as noticed above, the municipal authorities have taken
some compulsive steps to retrieve the government or municipal lands from
the encroachers and except in the case of educational/religious/public
institutions and/or of those individuals where the civil courts have either
passed a decree or granted injunction, rest of the encroachments have been
substantially removed. It, however, does not absolve the municipal
authorities from keeping a vigil and introducing and effective enforcement
and monitoring mechanism to prevent future recurrences and tackle to this
perennial problem. It is a sad state of affair that what the municipal
authorities ought to have done on their own, had to be reminded by this
Court through these suo moto proceedings. It would, thus, be too
presumptuous and far from ground realities to accept that no further action
is required to be taken in the matter or that the municipal areas concerned
are now free from any encroachments.
[11]. While, we are not inclined to continue monitoring the
enforcement activities of the Corporations indefinitely, their persistent
inaction in the past, warrants suitable directions to the authorities of the
Municipal Corporations and the State Government, to ensure that the
ongoing process of removal of encroachments is taken to its logical
conclusion and no one is allowed to grab the public properties in future also
with or without the connivance of the authorities concerned. We
accordingly dispose of this writ petition with the following directions:-
(i) the State of Punjab is directed to take a conscious
C.W.P. No.4886 of 2003 -: 7 :-policy decision, in accordance with law for removal
and/or regularization of the encroachments, if any, made
on the public lands by the government’s Educational
Institutes, Hospitals, Dispensaries, Police Stations, etc.
keeping in view the fact that such institutions are not to
be placed at the same pedestal as a private individual
encroacher;
(ii) the directions issued by this Court on 10.2.2004
restraining the State Government from regularizing
unauthorized encroachments and constructions,
provided that such encroachments are other than by the
government or public institutions, are made absolute;
(iii) the civil courts before whom the cases pertaining to
encroachments made within the areas of Municipal
Corporations, Ludhiana, Bhatinda and Patiala are
pending, are directed to expedite the disposal of those
cases preferably within two years of their institution;
(iv) the Municipal Corporations are directed that
encroachments from all those public properties except
falling within the direction No.(i) above and/or
wherever the civil court has decided the matter in favour
of the private individuals, shall be removed and the
lands will be retrieved forthwith but not later than six
months from today;
(v) the Municipal Corporations are further directed to
C.W.P. No.4886 of 2003 -: 8 :-constitute and notify the Enforcement and Monitoring
Committees for one or more areas which shall
periodically report to the Municipal Commissioner
regarding the status of the encroachments, if any, their
taking place or being removed within the area.
Necessary and prompt action shall be taken by the
Municipal authorities to nip it in the bud;
(vi) the Municipal Corporations shall forthwith locate the
encroachment prone areas and take all necessary
safeguards/preventive measures against possible
trespass/encroachments, viz., erecting barbed-wire
fencing, displaying notice-boards containing statutory
warning, etc., and make the Encroachment and
Monitoring Committee of the respective area
accountable for any lapse or inaction on its part;
(vii) the Municipal Corporations shall also evolve public
participation in their anti-encroachment drive by
constituting Vigilance Committees of the NGOs/citizens
who may volunteer to inform the municipal authorities
including the Enforcement and Monitoring Committees
regarding any fresh encroachments so that the desired
action in terms of direction No.(v) above can be taken
without any delay;
(viii) if a public spirited person notices that any
encroachment is not being removed and/or being
C.W.P. No.4886 of 2003 -: 9 :-allowed to take place in connivance with the employees,
authorities or councillors of the Municipal Corporation,
he/she shall be at liberty to institute contempt of court
proceedings against such person and/or Municipal
authorities for their act of willful and deliberate
disobedience of the directions issued hereinabove.
[12]. No costs.
[ Surya Kant ]
Judge
October 4, 2008. [T.S. Thakur]
kadyan Chief Justice