Uttarakhand High Court
Manmohan Lakhera vs State Of Uttarakhand And Others on 18 June, 2018
Equivalent citations: AIR 2018 UTTARAKHAND 187, AIRONLINE 2018 UTR 786
Author: Lok Pal Singh
Bench: Rajiv Sharma, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No.47 of 2013
Manmohan Lakhera ... Petitioner
Versus
State & Ors. ..... Respondents
Mrs. Prabha Naithani, Brief Holder for the State-respondent nos.1 to 3
Mr. S.S. Chauhan, Advocate for respondent no.5
Dated: 18th June, 2018
Coram : Hon'ble Rajiv Sharma, J.
Hon'ble Lok Pal Singh, J.
[Per: Hon'ble Rajiv Sharma, J.] This petition was treated as PIL on the basis of letter sent by Mr. Manmohan Lakhera, Journalist highlighting therein the encroachments made on the public path by unscrupulous persons. The scope of this petition was enlarged from time to time.
2. The affidavits have been filed by the District Magistrate, Dehradun. According to the latest affidavit filed by him, a meeting was called by him on 10.07.2014 for removal of encroachment over footpaths. The encroachments are removed on 06.06.2013, 07.06.2013, 10.06.2013, 11.06.2013, 12.06.2013, 13.06.2013 and 14.06.2013. The road wise list of removal of encroachments was filed as Annexure No.C.A.2 (Colly).
3. The massive drive was launched for removal of encroachments. However, the fact of the matter is that, till date, the encroachment is being made with 2 impunity on the public paths. The affidavits filed by the private parties were taken into consideration but not found satisfactory.
4. According to the Gazetteer of Dehradun, written by H.G.Walton, ICS, First Published in 1910, a municipality, and the chief town and head quarters of the Dehradun district, is situated in north latitude 30019" and east longitude 7805",' at an elevation of 2,300 feet above the level of the sea, slightly to the east of the watershed line between the Ganges and the Jumna systems, occupying a plateau defined on the east by the Rispana Rao and on the west by the Bindal. Between these rivers lie the city and civil station, and beyond the Bindal are the cantonments. The town of Dehra was constituted as a municipality in 1867, and at that time its boundaries enclosed as area of only some 3½ square miles. The last alteration was made in 1909 with the object of including within municipal limits the villages of Hathibarkala and Dalanwala. New cantonments have also come in the area. This is a favourite settlement for Gorkha pensioners.
5. In sequel to the directions issued by this Court, Shri Rajeev Sharma, President of District Bar Association Dehradun has filed a very comprehensive report. The report is accepted. We will deal with the issue of encroachment road-wise/area-wise.
6 The Commissioner has visited the Chakrata Road on 14.04.2014. It is the main road leading from Clock Tower to Vikas Nagar. The worst affected area is about 500 mts. approx. starting from Clock Tower to Prabhat Cinema. Encroachment was removed in the 3 year 2012. The shopkeepers, whose shops were demolished, were allotted shops as alternative for rehabilitation. The drive was undertaken for widening of the road. According to the G.O. 2123/V-2011-01 (vkŒ)/2011, minimum 2 mts. set back was required from the main road. This norm has been flouted with impunity. This could not happen without the connivance and collusion of the State officers/officials as well as the employees of MDDA. One glaring example of encroachment on Chakrata Road is by Mandir Samiti, Clock Tower. The portion of the Mandir property was demolished. The Mandir Samiti was allotted two shops at the MDDA Complex, however, despite that, fresh encroachment has taken place in triangular shape by the Mandir Samiti by putting angle iron and tin. The vehicles are also parked haphazardly on this road leading to frequent traffic jams. For reasons best known to the MDDA, the property of some of the shopkeepers has not been brought within the scope of demolition near the MAZZAR.
7. One more glaring example is of Prabhat Cinema. The State functionaries and the employees of the MDDA, to give undue benefit, have changed the alignment of the road itself, leading to further chaos on the road. There is large scale encroachment on the footpaths and the commercial establishments have kept their big generators on the footpaths causing great inconvenience to the pedestrians. The placing of generators right on the footpaths, besides causing inconvenience to the pedestrians, is a constant source of noise as well as air pollution. The MDDA itself has notified 850 khokhas on this road which have been 4 permitted to mushroom without authority of law. There are about 12 to 15 illegal tin shops on the left side of the road near the Bindal bridge. The footpaths are occupied unauthorizedly by putting up temporary stalls. After the Bindal bridge, there is Kishan Nagar Chowk and Ballupur Chowk, which have been encroached upon by the shopkeepers. Big sweet shop such as Uttar Sweets has extended its shop on the road. The customers parked their vehicles in front of the shop, which make the condition worse. The Standard Bakery has also constructed illegal shed and has extended its shop on road. Near the Central School and ONGC Community Center, the road has been encroached on both the sides by unauthorized occupants.
8. Now we will advert to Saharanpur Road. It is also the main road leading from Clock Tower to Delhi - Dehradun Highway. It is the most crowded road of the Dehradun Town. The first patch of the road which starts from Clock Tower to Prince Chowk is choked with temporary encroachment. The area has been encroached upon by roadside shopkeepers. The shopkeepers have extended their shops beyond the permissible limits. At Darshan Lal Chowk, there are 10 to 15 illegal khokhas on the road disrupting heavy traffic. On the streets, small restaurants and food stalls, during the night period, are run in unauthorized manner causing nuisance and menace to the public at large. The main Arhat Bazar, as per government record, was shifted to Main Transport Nagar. The businessmen were given compensation and shops in Main Transport Nagar in lieu of part of their property 5 demolished in the road widening but the position is still the same. After crossing the Lakhibagh police chowki, there is again a bottleneck. The shopkeepers backed by politicians have encroached upon the government land. The Arhat Bazaar, though on papers has been shifted, but it still is in existence and is a constant bottleneck. It takes about 45 minutes to travel from Clock Tower to Saharanpur Chowk.
9. Now the Court will advert to Nehru Colony. This Colony is located on Haridwar Road. It was initially developed by Awas Vikas Parishad. It was the first duly approved residential colony of Dehradun. The majority of residential buildings have been converted into big showrooms causing inconvenience and nuisance to the local residents. The Nagar Nigam vide letter dated 25.04.2017 has admitted that the majority of residential buildings have been converted into commercial. It was astonishing to note that in one particular building 221-B Nehru Colony, a huge photo studio named as Khalsa Studio was being run and on the first floor a full fledged educational academy called "BSC Academy" was being run.
10. The position of Rajpur Road is equally bad. This road starts from Clock Tower and leads to Mussoorie. Though the basements were approved for parking but these are being used for commercial purposes by the big business establishments including shopkeepers. The footpaths on the Dilaram Bazaar, constructed by MDDA, have been occupied. From Dilaram Bazaar to Hotel Madhuban, there are about 50 shops on the left side of the Rajpur Road. Most of the 6 illegal khokas on this street are eateries. The footpaths are occupied unauthorizedly. Near Gandhi Park, the footpaths have been encroached upon by the cobblers, astrologers and beggars. The pedestrians cannot move freely in this area. The shopkeepers display their merchandise on the streets. 8 ft. wide footpath is reduced to few feet only. There are thelas and rikshaws parked on this area. There was a footpath near the Clock Tower named as the New Market. In this area, the shopkeepers display their merchandise without authority of law. There are traffic jams on these roads and the police has not taken any effective steps to regulate the same. The land near the Parade Ground is also encroached by the illegal Khokhas and temporary structures. The Nagar Nigam has illegally permitted holding of "Sunday Bazaar" by the shopkeepers.
11. Now, we advert to Karanpur Bazaar, which is one of the oldest bazaar of Dehradun. The 30 feet wide market road is fully encroached upon. The government land has been given for even opening of ATMs by public banks. Even the Nala on this road has been encroached upon. The vehicles are parked haphazardly on this road. There was large scale encroachment made by Maheshwari Sweets to the extent of 10 fts., however, no steps have been taken by the authorities to remove the said encroachment.
12. We will now advert to Araghar and Dharampur area. This road was visited by the Commissioner on 22.04.2014. It is a VIP road. This road is also encroached by the shopkeepers. Few of 7 them are also running the workshops. Shops to the extent of 2 to 3 fts have been extended towards the road. It was also undertaken by the Nagar Nigam in Public Interest Litigation W.P. No.283 of 2004 (M/B) that the Sabzi Mandi will be shifted to some other place. The Nagar Nigam shifted the sabzi mandi on the road adjoining to LIC Zonal Office at Dharampur. The shopkeepers who were supposed to shift from the old place did not shift. Now they have kept two shops, one original shop and one allotted to them by way of rehabilitation.
13. Haridwar Road is the main road connecting the city with Rishikesh-Haridwar Highway. The establishment has permitted the unauthorized vegetables and fruits shops on the road. The temporary structures are being run in abundance on this road.
14. There are other very important areas of Dehradun including Paltan Bazzar, Dispensary Road, Hanuman Chowk, Sarnimal Bazaar, Tehsil and Jama Mazid. The entire drain from the clock tower to the end of the Paltan Bazaar is 100% encroached by the shopkeepers. The footpaths are also encroached by the shopkeepers. They have fixed their own tiles on the footpaths. None of the shops are within the permissible limits. The total width of the market is 30 ft. but only 10 ft. of open space is hardly left. The Dispensary road is also the worst affected area. The MDDA had recently constructed a multipurpose complex and allotted number of shops to the local shopkeepers who were shifted from the main road, however, the entire road is again encroached upon by the fruit and vegetable 8 sellers. The vehicles are parked haphazardly near the multipurpose complex. 15 to 20 shopkeepers have encroached upon the Dispensary road. The dry fruit merchants have extended their shops near Zama Maszid area. Same is the plight of Sarnimal Bazaar. The shopkeepers have extended their shops around 6-7 feets on both sides.
15. The roads that were 30-40 fts. wide on Prem Nagar Cantonment are also encroached upon. The pedestrians are not in a position to walk on roads. The shopkeepers are charging monthly rent for letting the fruit sellers and vegetable sellers sit in front of their shops. It has further compounded the situation. The area starting from Subhash Road is again an example of lawlessness. The residential houses have been illegally converted into commercial complexes.
16. The gist of the report is that the shopkeepers are firstly allotted temporary structures. These people convert them into pucca structures and thereafter they encroach on the government land. The shopkeepers, though allotted new shops, do not leave their old shops. The so called encroachment drives undertaken by the Nagar Nigam and the MDDA are mere eyewash. The Officers who permit the conversion of temporary structure to pucca structure and encroachment on the government land, municipal land and MDDA land, are not punished. It has come on the record that the District Administration has convened a meeting on 10th July, 2014 to get rid Dehradun from encroachment on public land, more particularly the footpaths, before the one man Commission was constituted.
917. The fact of the matter is that despite repeated directions issued by this Court, neither the State Government nor the MDDA nor the Nagar Nigam Dehradun has taken any effective steps to remove the encroachment from the public streets/pavements. Public streets are for public convenience. These should be free from encroachment. The citizen must have a free access to footpaths. The Court can take judicial notice of the fact that the children and elderly people also use the footpaths. The menace is so alarming that even the road, which are 30 fts. wide, have been reduced to mere 7-8 fts. The shopkeepers, firstly, are permitted to construct temporary khokhas and, thereafter, they make them pucca. There are permanent bottlenecks as noticed in the report, and highlighted by us. The footpaths are being permitted to be used for placing big generators causing noise and air pollution. The shopkeepers are permitting the vegetable and fruit vendors to sit in front of their shops. The residential premises have been converted into commercial complexes, more particularly, in the oldest colony i.e. Nehru Colony. Similar is the plight of other localities. The residential houses on the Haridwar road have been permitted to be used as commercial purposes. The basements, which are to be used primarily for parking lots, are being permitted to be used for commercial ventures. There are chaos all over Dehradun. The traffic moves at snail's pace. The public authorities cannot be oblivious to the loss of precious time of commuters. The Court can take judicial notice of the fact that the roads, encroached upon with impunity with the connivance and collusion of the 10 authorities, are also ridden with garbage. Every citizen has a right to access to footpaths, roads, parks and public utilities under Article 21 of the Constitution of India. It is the duty cast upon the MDDA and the Nagar Nigam to keep the roads clean. Recently, there was a strike by the Safai Karamchari which further deteriorated the position. There was no alternative plan available with the Nagar Nigam and MDDA. The garbage was not removed from the streets for days together. The respondents are putting wool over the eyes of the Court by giving assurances from time to time that they are doing their best to remove the encroachment, but till date, Dehradun town is still suffering from this menace. The decision was taken by the High Power Committee on 10 July 2014. We are in 2018. Since then, the things have worsened instead of improving. The simple reason for encroachments, extension of shops and unauthorized construction is manifestation of the human greed with the collusion of functionaries of government and municipal bodies. The employers did not take any disciplinary action against the persons responsible for keeping the cities and towns free from encroachment.
18. We live in a democracy. The rule of law should prevail. There is sufficient material on record to suggest that there is living anarchy as far as city of Dehradun is concerned. The cities/towns should provide quality living. The towns have been reduced to the status of slum areas. The slum areas are permitted to mushroom. Every city/town has a carrying capacity. Dehradun was once known for its aesthetic beauty. There are important institutions in Dehradun like 11 Indian Military Academy, ONGC, Survey of India, Forest Research Institute, etc. Schools of international fame and universities are also situated in Dehradun. Dehradun is the seat of governance but there is an old proverb "Nearer the Church, the farther from God"
(nhid rys v/ksajk). If that is the plight of the capital city, we can visualize the situation prevailing in other towns and cities in the State of Uttarakhand. Recently, a report has come that the quality of Dehradun city was bad. The river Rispana flowing through the heart of the town has been reduced to the status of sewer (worse than nala). How the functionaries of the State capital are oblivious to this, is beyond our comprehension. There has to be sensitivity in the system. Every person serving in a public system is accountable for his acts. Encroachment, unauthorized constructions, coming up of slums is a grim reminder of callousness on the part of the authorities concerned.
19. Accordingly, on the basis of material placed on record, more particularly, as per the report submitted by Mr. Rajeev Sharma, Chairman/President of the District Bar Association Dehradun as per the order dated 25th July, 2014, we issue following mandatory directions:
i) The Municipal Corporation/MDDA/ State functionaries are directed to remove all the unauthorized encroachment on public footpaths/ streets/ roads/ pavements including unauthorized constructions made over them within a period of four weeks from today by using its might. It shall be open for the State functionaries to impose Section 144 12 of Cr.P.C. while removing the demolition of illegal structures built on government and municipal land/footpaths/streets.
ii) The Chief Secretary to the State of Uttarakhand is directed to initiate disciplinary proceedings against the officers/officials, during whose tenure, government land/municipal land/forest land have been encroached, with impunity, by the unscrupulous people. The disciplinary proceedings shall be commenced for imposition of major penalty. We authorize the Chief Secretary to the State of Uttarakhand, to constitute the nodal agency to supervise the disciplinary proceedings to be initiated against the officers/officials who were found remiss in discharge of their statutory duties. It is made clear that no officer, be it of any rank, shall be spared. The axe should not fall on lower class employees alone.
iii) The State functionaries/MDDA and the Nagar Nigam Dehradun are directed to seal all the residential premises which are being misused as commercial purposes including basements within a period of three weeks from today. It is made clear by way of abundant precaution that if the basement areas, which are meant for parking vehicles, are not used for parking purposes, the entire commercial building be sealed.
iv) The persons who have taken advantage of rehabilitation policies, but have not surrendered their shops at the old places, their new leases shall be cancelled and the 13 municipal/state functionaries shall take over the shops. The same shall be auctioned again in accordance with law to maintain rule of law.
v) The State Government is directed to carry out necessary amendments in the building bye-
laws of the Nagar Nigam Dehradun and MDDA that no unauthorized construction is compounded to arrest the tendency of the people to raise unauthorized construction by paying meager compounding fee. The compounding of entire unauthorized construction is against rule of law.
vi) The Director General of Police to the State of Uttarakhand is directed to ensure that there are no traffic jams in Dehradun city to avoid wastage of precious time and inconvenience to the commuters and pedestrians.
vii) It is made clear that in the eventuality of the directions not being implemented in the time frame, given hereinabove, the Court may recommend supersession of the Nagar Nigam by the State Government. It is made clear that after the removal of the encroachment, demolition and unauthorized constructions, it shall be the responsibility of the State officers/officials and MDDA to maintain constant vigil that the land is not reoccupied.
viii) Unscrupulous people have been permitted by the State functionaries to raise unauthorized construction in the river bed as well as on the banks of river Rispana. The respondents are directed to restore the "Rispana River" which is an important tributary of Ganges, within a 14 period of three months from today. The encroachment on both banks shall be removed within three months from today.
ix) The entire State of Uttarakhand is in Zone 4-5 seismic activity. New buildings can be permitted to be constructed after receiving the report from the structural engineer.
x) The Director, Health Services to the State of Uttarakhand/C.M.O./Health Officer of Municipal Corporation Dehradun shall submit day-to-day report to the Registrar General of this Court about the cleanliness in the city of Dehradun after visiting the spot every 24 hours.
xi) Respondents are directed to submit compliance report before the Registrar General of this Court.
xii) The Secretary, Public Works Department shall
be the Nodal Agency to implement the
directions issued by this Court, hereinabove, and in case of non-compliance, he shall be personally liable for contempt as well as disciplinary proceedings.
20. With the aforesaid observations and directions, present petition stands disposed of.
(Lok Pal Singh, J.) (Rajiv Sharma, J.)
18.06.2018 18.06.2018
Rajni