IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 13121 of 1998
DATE OF DECISION: December 2, 2008
Sarwan Singh and another
...Petitioners
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. R.C. Dogra, Senior Advocate, with
Mr. Sanjeev S. Thakur, Advocate,
for the petitioners.
Mr. Suvir Sehgal, Addl. AG, Punjab.
for respondent Nos. 1, 3 & 4.
Mr. R.L. Gupta, Senior Advocate, with
Mr. C.M. Sharma, Advocate,
for respondent No. 2.
Mr. M.L. Sarin, Senior Advocate, with
Mr. Vikas Suri, Advocate,
for respondent Nos. 14 to 25.
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
the Digest?
C.W.P. No. 13121 of 1998 2
M.M. KUMAR, J.
1. This order shall dispose of C.W.P. Nos. 13121 of 1998
and 1140 of 1997. However, the facts are referred from C.W.P. No.
13121 of 1998. This petition was filed in the year 1998 with a prayer
for issuance of mandamus to the respondents directing them to
remove encroachments from the common purposes land such as
parks, roads, vacant sites for public goods and stopping the pollution
of the water and environment in the area of Mata Rani Mandir,
Phagwara. Similar prayer has been made in the connected petition
and directions have been sought for implementation of the
development scheme dated 20.8.1969 by taking possession of the
land of Municipal Committee, Phagwara, meant for common
purposes including parks and roads from al unauthorised persons.
2. After issuance of notice of motion various orders have
been passed to ensure that all unauthorised construction and
encroachments are removed. On 2.6.1999, learned counsel for the
Municipal Committee, Phagwara, had stated that proceedings were
already initiated for removal of encroachments by issuing notices to
the persons who had made unauthorised
constructions/encroachments. On 25.1.2000, the Division Bench
noticed existence of large scale encroachments and the efforts being
made by the respondent Municipal Committee to regularise those
encroachments. Some industrial units operating within the residential
area in the Town Planning Scheme No. 5 Part-II were also subjected
C.W.P. No. 13121 of 1998 3
to certain orders and assurance was given by the respondent
Municipal Committee that steps would be taken for removal of
encroachments from public roads and parks, as is evident from order
dated 19.10.2000. It would be appropriate to take notice of the order
dated 5.3.2001. The Bench while refusing to record any conclusive
finding on the status of the existing constructions was fully convinced
that it was in public interest to direct that no transfer of the land
earmarked for public parks should be permitted and action should be
taken by the Municipal Council for removing the encroachments from
public roads and parks. It restrained that no transfer deed for
alienation of the land forming part of public parks be registered by
the concerned authorities of the State. The District Administration
was also directed to help the Municipal Council to carry out the task
of removing encroachments from public roads and parks. The Bench
also directed the Courts at Phagwara and Kapurthala to expeditiously
dispose of the pending cases involving encroachments on public
roads and parks and issued direction to them not to grant ad interim
injunctions without giving notice to the Municipal Council. A
detailed status report with regard to removal of encroachments from
public roads and parks was to be filed by the Municipal Council,
Phagwara. Thereafter, some applications under Order I Rule 10
C.P.C. were moved for becoming parties, which were allowed on
22.5.2001. The demolition of constructed houses and other buildings
was stayed on 10.5.2001 but it was not to include removal of
encroachments existing on the roads.
C.W.P. No. 13121 of 1998 4
3. The petition was admitted on 19.7.2001. However, the
matter was again taken up by the Division Bench and the order dated
19.7.2001 admitting the petition was recalled on 22.3.2007. The
Deputy Commissioner, Kapurthala, appeared before the Court and
made various suggestions which are evident from the perusal of order
dated 13.7.2007, which reads thus:-
” i) that open spaces/parks should be maintained
by Municipal Council, Phagwara by fencing up the
existing park area and by maintaining them.
ii) Municipal Council, Phagwara should
retrieve some of the encroached/deviated area in Parks
P3 and P4.
iii) Municipal Council, Phagwara can acquire
an area of 33275 Sq. feet (being deficient park area)
from the private owners of existing open spaces, in
accordance with the provisions of the law governing the
T.P. Scheme under Punjab Municipal Act, 1911.
iv) Municipal Council, Phagwara should
remove the encroachments of 4237.5 Sq. feet caused by
projections and 555 Sq. feet caused by footsteps/ramps
from residential houses.
v) 24 factory units operating in the area, which
are non polluting nature may be allowed to continue in
the area and M/s Bhalla Ball Bearings and other
C.W.P. No. 13121 of 1998 5industries which are causing pollution, may be permitted
to shift their unit from this area within six months.
vi) Municipal Council, Phagwara should
complete the rest of the formalities under the T.P.
Scheme as required by the Punjab Municipal Act, 1911
and protect and maintain the existing parks/open spaces,
roads.
Affidavit for implementing the scheme by
Municipal Council, Phagwara shall be filed within four
weeks. Copy of the same be given to the counsel for the
other parties and objections/observations, if any, be
made by them on the next date of hearing.
Mr. Sandhawalia, Advocate who is present on
behalf of M/s Bhalla Ball Bearings Industry says that the
site where the industries including M/s Bhalla Ball
Bearings Industry are to be shifted, though identified,
has not yet been developed.
We take judicial notice of this fact and direct the
authorities to develop the site and file the report on the
next date of hearing.”
4. Thereafter the matter was taken up on 20.8.2007, the
Division Bench in its order dated 20.8.2007 notices the conclusion
and summary of suggestions made by the Deputy Commissioner and
the same reads thus:-
C.W.P. No. 13121 of 1998 6
” Pursuant to our order on May 15, 2007, we
had asked the Deputy Commissioner, Kapurthala, to go
into the whole gamut of unauthorised constructions and
unregulated development in the colony in question and
find out as to how they can be regulated so that green
patches, roads and streets of uniform size can be cared
out and the existing colony be improved and the
necessary infrastructure like sewerage, rain water
drainage, garbage disposal etc. be provided.
Pursuant to our order, the Deputy
Commissioner, Kapurthala, submitted his report after
having a detailed survey of the area and suggested some
remedial measures that find reflection in our order
passed on July 13, 2007.
On the last date of hearing, we had directed
the Municipal Council, Phagwara, to file an affidavit
with regard to the implementation of the Scheme, as
suggested by the Deputy Commissioner, Kapurthala,
which has now been filed through its Executive Officer
Mr. Paramjit Singh, who is present in Court. The
affidavit reads as under:-
” 1. xx xx xx xx.
2. That penultimate para of the
report of the Deputy Commissioner reads as
under:-
C.W.P. No. 13121 of 1998 7
“11. CONCLUSION AND SUMMARY
OF SUGGESTIONS:
11.1 Considering the fact that this
T.P. Scheme is a still born scheme, which
remained in papers and could not be
implemented due to the fact that a lot of
development had taken place prior to the
notification of the scheme, and the necessity
to maintain a reasonable level of civil
facilities like parks, roads etc. the following
are suggested:
11.2 As regards open spaces/parks,
the Municipal Council, Phagwara should
fence up the existing park area and maintain
them.
11.3 Municipal Council, Phagwara
should retrieve some of the
encroached/deviated area in Parks P-3 and
P-4.
11.4 Municipal Council, Phagwara
can acquire an area of 33275 sq. ft (being
the deficient park area) from the private
owners of existing open spaces, in
accordance with the provisions of the law
C.W.P. No. 13121 of 1998 8governing the T.P Scheme under the Punjab
Municipal Act, 1911.
11.5 Municipal Council, Phagwara
should remove the encroachments of 4237.5
sq. ft. caused by projections and 555 sq. ft.
caused by footsteps from residential houses.
11.6 The 24 factory units operating
in the area, which are of non-polluting
nature may be allowed to continue in the
area and M/s. Bhalla Ball Bearings, who are
causing pollution, may be permitted to shift
their unit from this area within 6 months.
11.7. Municipal Council, Phagwara
should complete the rest of the formalities
under the T.P. Scheme as required by the
Punjab Municipal Act, 1911 and protect and
maintain the existing parks/open spaces,
roads.”
3. That para No. 11.1 of the report
dated July 13, 2007 does not require any comment.
4. That so far as para No. 11.2 of
the report is concerned, the Municipal Council,
Phagwara has decided to accept the report in toto.
The Municipal Council, Phagwara will do the
fencing of the existing parks and will maintain
C.W.P. No. 13121 of 1998 9them. Municipal Council, Phagwara has passed the
Resolution bearing No. 124 dated July 17, 2002 in
which provisional amount of Rs. 2.50 lacs has
been passed for fencing the existing park area. The
Municipal Council has called the tender and after
completing the tender formalities, the works shall
be allotted to the contractor for fencing the
existing parks area. So far as the maintaining of
the existing parks is concerned, the Municipal
Council will develop the existing park areas one
by one as the Municipal Council, Phagwara faced
the scarcity of the funds in these days and these
parks are vested only in one ward and the
Municipal Council has responsibility to look after
the whole city of Phagwara.
5. That the Municipal Council,
Phagwara has accepted para No. 11.3 of the report.
The Municipal Council, Phagwara shall make the
earnest efforts to retrieve the possible
encroachment/deviated area in Park P-3 and P-4.
In this regard Municipal Council has given notice
under Section 172 of Punjab Municipal Act, 1911
to the encroacher Tarsem Lal son of Daulat Singh
bearing No. 1171 dated July 31, 2007 to vacate the
encroached area within 30 days and failing which
C.W.P. No. 13121 of 1998 10the Municipal Council will demolish the
encroached area in Parks P-3 and P-4.
6. That so far as para 11.4 of the
report is concerned, it is not within the
competence of Municipal Council, Phagwara to
acquire the area (deficient park area) from the
private owners of existing open space. It is the
State Government alone who can acquire the area
as suggested by the Deputy Commissioner in his
report dated July 13, 2007. It may be stated here in
its judgment as report in AIR 1994 Supreme Court
2550 Yogendra Pal and others v. Municipality,
Bhatinda and another, the Hon’ble Apex Court has
struck down the provision of Section 192 sub-
section 1 (c) of the Punjab Municipal Act, 1911.
7. That as per para 11.5 of the
report, the Municipal Council, Phagwara would
remove the encroachments caused by the
projections and by the foot-steps/ramps from the
residential houses. Necessary notices dated July
26, 2007 under Section 172 of the Punjab
Municipal Act, 1911 have been issued to the
encroachers (50 in numbers) asking them to
remove the encroachment within 30 days and in
C.W.P. No. 13121 of 1998 11default thereof, the Municipal Council would get it
demolished in accordance with law.
8. That so far as para 11.6 of the
report is concerned, it is the Industry Department
of the Punjab Government which can remove M/s.
Bhalla Ball Bearings a polluting unit as suggested
in the report.
9. That so far as para No. 11.7 of
the report is concerned, Municipal Council,
Phagwara will make every efforts to protect and
maintain existing parks/open space. In this regard,
Municipal Council has installed the Board in the
existing parks displaying parks belong to
Municipal Council and fall under the T.P. Scheme
5 Part-II.”
Let implementation of the Scheme as per the
affidavit of the Municipal Council, Phagwara, be done.
Be notified for hearing on October 05, 2007.
Copy of the order be given ‘Dasti’ under the
signatures of the Special Secretary.”
5. When the matter came up for further consideration on
21.10.2008, learned counsel for the petitioners apprise the Court that
the directions issued on 20.8.2007 have not been carried in letter and
spirit nor any status report as per direction has been filed. He
complained that there were still residential houses in the park, which
C.W.P. No. 13121 of 1998 12
claim was contested by the learned counsel for the respondent
Municipal Council, Phagwara. As there was no comprehensive
affidavit giving details about the implementation of the directions
issued by this Court on 20.8.2007 and 5.10.2007, we called for
comprehensive report. Accordingly, an affidavit dated 15.11.2008
was filed by Shri Adarsh Kumar Sharma, Executive Officer,
Municipal Council, Phagwara. The affidavit of the Executive Officer
disclosed a number of steps which have been taken in respect of Park
No. P-3 and P-4. It has been deposed that free access to the parks
have been made and there is no hindrance in the free movement to the
general public on their way to these parks and that open spaces/parks
have been partially covered through boundary wall and partially
through fencing with iron wire and concrete pillars. It has also been
pointed out that priority is being given to provide drinking water
supply and sewerage facilities to the residents of the municipal area.
The Executive Officer has also deposed that drinking water and
sanitation is being provided to the residents of the locality of Town
Planning Scheme No. 5 Part-II and it is persuading the residents of
the locality of Town Planning Scheme No. 5 Part-II for purchasing
deficient park area at collector rates. In case the nearby residents of
do not show their willingness to sell their land then process for
compulsory acquisition would be initiated through the Deputy
Commissioner, Kapurthala. A comprehensive rehabilitation plan is
required to remove small factory units operating in the area because
thousands of workers and their families are dependent on these small
C.W.P. No. 13121 of 1998 13
units. The Municipal Council, Phagwara, has already made a request
to the General Manager, District Industries Centre, Kapurthala as well
as the Executive Engineer, Punjab Pollution Control Board,
Jalandhar, to take necessary legal action against these units, vide their
letter dated 7.11.2008.
6. It is pertinent to notice that there is some dispute with
regard to notification and de-notification of the Town Planning
Scheme, which is subject matter of other petitions. The controversy
raised in these petitions would not cover the issue of notification/de-
notification of the Town Planning Scheme as the same is involved in
a bunch of other petitions which are pending and dealt with
separately. The order passed in these petitions, therefore, shall not be
taken to have any effect on the pending petitions.
7. When the matter came up for consideration on
20.11.2008 before this Court, again the issue of encroachments in the
park area was raised by referring to Park No. P-3. It was claimed that
no specific affidavit was filed with regard to demolition of house
belonging to one Shri Tarsem Lal in Park No. P-3. This Court has
noticed that in the affidavit dated 25.1.2008, the only statement made
by the Executive Officer was that the Municipal Council had
retrieved the possible encroachment/deviated area in Park No. 3 and
Park No. 4 and it has removed the encroachment of footsteps/ramps
from the residential area by clearing the road and the streets by using
JCB machine. The Court expressed dissatisfaction because nothing
was said about demolition of encroachment to which reference was
C.W.P. No. 13121 of 1998 14
made in the order dated 20.8.2007. Accordingly, we asked the
Municipal Council, Phagwara to file specific affidavit of its
Executive Officer that the encroacher has vacated the encroached
area.
8. Shri Adarsh Kumar Sharma, Executive Officer,
Municipal Council, Phagwara, has filed affidavit dated 1.12.2008 by
stating that on 31.7.2007 the encroacher Shri Tarsem Lal was asked
to vacate the encroached area of Park No. P-3 and after receiving the
notice he has himself demolished the excess/encroached portion of
his house in Park No. 3.
9. After hearing learned counsel for the parties, we are of
the considered view that no useful purpose would be served by
keeping these petitions alive as necessary steps have already been
taken. Accordingly, these writ petitions are disposed of with the
observation that Municipal Council, Phagwara shall ensure that there
is no encroachments by the unwarranted elements. We wish to make
it clear that any observation made in this order shall not have any
adverse effect on the pending litigation with regard to the polluted
industries in the residential area or any scheme by the respondents in
that regard.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
C.W.P. No. 13121 of 1998 15
December 2, 2008 JUDGE
Pkapoor