Punjab-Haryana High Court
Balwinder Singh And Others vs The Municipal Corporation And Another on 19 January, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
CWP Nos. 15140, 16409 of 1999 &
CWP No.16476 of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Date of decision:- 19.01.2011
CWP No. 15140 of 1999
Balwinder Singh and others ....Petitioners
Vs.
The Municipal Corporation and another ....Respondents
Present:- Ms. Tanisha Peshawaria, Advocate,
for the petitioners.
Mr. A.R. Takkar, &
Ms. Meghna, Advocates,
for the respondents.
CWP No. 16409 of 1999
Ujagar Singh and others ....Petitioners
Vs.
Municipal Corporation, Ludhiana ....Respondent
Present:- Ms. Tanisha Peshawaria, Advocate,
for the petitioners.
Mr. A.R. Takkar, &
Ms. Meghna, Advocates,
for the respondent.
CWP No. 16476 of 2000
Gurcharan Singh ....Petitioner
Vs.
State of Punjab and others ....Respondents.
Present:- Mr. Yogesh Goel, Advocate,
for the petitioner.
Mr. A.R. Takkar, &
Ms. Meghna, Advocates,
for the respondents.
CWP Nos. 15140, 16409 of 1999 &
CWP No.16476 of 2000 2
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
******
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 to the Digest?
HEMANT GUPTA, J (ORAL)
This order shall dispose of Civil Writ Petition Nos.15140 of 1999,16409 of 1999, and 16476 of 2000, wherein the petitioners have claimed direction to the respondents not to dispossess the petitioners from the land in their possession and for framing a policy of allotting the land in unauthorized possession of the persons such as the petitioners.
For the facility of reference, the facts are taken from Civil Writ Petition No. 16409 of 1999. In the said writ petition, the petitioners have alleged that they have raised constructions on the land in question since 1969 to 1970 and are residing in the buildings constructed on such land.
It is alleged that in the year 1990, Municipal Corporation, Ludhiana, wanted to demolish constructions raised by the occupants. The persons in possession have taken recourse to the remedy of the civil suit, wherein the Civil Court has restrained the defendants (the present respondents) from dispossessing the plaintiffs, such as the petitioners, from the property and from demolishing the construction raised therein, except in due course of law. It is further pleaded that on 20.10.1999, large number of Corporation officials came to the spot. They encircled the colony known as New Prem Nagar and started demolishing the CWP Nos. 15140, 16409 of 1999 & CWP No.16476 of 2000 3 superstructures. The petitioners invoked the writ jurisdiction of this Court and the order of status-quo was passed on 29.11.1999. But by such time, 3/4th of the colony was demolished. It is pointed out that similar order of status quo was passed in CWP No. 15140 of 1999 on 28.10.1999. Subsequently, some other occupants filed third writ petition i.e. CWP No. 16476 of 2000.
It is the case of the petitioners that the demolition work has been undertaken without any notice or warning and therefore, the action of the Municipal Corporation is illegal. It is also pleaded that the petitioners are poor people belonging to lower economic strata and that in equity and justice, they should not be dispossessed and that they should be entitled to purchase this land on reserved price. It is also pleaded that Municipal Corporation has planned to utilize the land for residential colony and therefore, to dispossess the petitioners and utilize the land for setting up another residential colony is not fair and reasonable.
In the written statement filed, the respondent Municipal Corporation has asserted that Local Government Department, Punjab, issued notification under Sections 4 and 6 of the Land Acquisition Act, 1894 (for short, "the Act), on 12.12.1977 for acquisition of land falling in village Rajpura, Hadbast No. 163, District Ludhiana, for the public purpose, i.e. for extension of the Rose Garden. The Land Acquisition Collector announced its award on 16.07.1979. The revenue authorities delivered possession of land on 26.07.1979. In the land acquired, a joy ride CWP Nos. 15140, 16409 of 1999 & CWP No.16476 of 2000 4 train was to be installed, but the same was not permitted. Therefore, this joy ride train was installed in another garden.
The owners of acquired land, on 24.02.1982, approached the Government for de-notifying the notification of acquired land, but such request for de-notification was declined. It was resolved by the Municipal Corporation vide resolution dated 05.10.1982 that as the acquired land is reserved for the residential purposes in the sanctioned Town Planning Scheme, so the said land may be utilized by auctioning the land as residential plots. Pending consideration of the said resolution of the Government, some persons unauthorizedly made encroachment over a part of the land, the ownership of which vests in the Corporation. It is, however, pleaded that the Municipal Corporation has passed an order for demolition of constructions on its land after issuing separate show cause notices on all the unauthorized occupants on 07.10.1999, but since the receipt of the notices was refused, the same were pasted and consequently, demolition process was carried out.
Learned counsel for the petitioners vehemently argued that is impossible to imagine that all the occupants would refuse to accept the show cause notices. It is contended that the report of the refusal was managed by the officials of the Municipal Corporation to facilitate the demolition process without providing opportunity of hearing to the occupants in illegal and arbitrary manner. It is contended that the report of the refusal is not recorded in the manner prescribed by the Code of Civil CWP Nos. 15140, 16409 of 1999 & CWP No.16476 of 2000 5 Procedure. Learned counsel for the petitioners further argued that the demolition order dated 14.10.1999 is, therefore, not maintainable as it violates the principle of natural justice.
Learned counsel for the respondents states that the Municipal Corporation has taken possession of substantial portion of the erstwhile encroached land and has cordoned off the area and therefore, providing of opportunity of hearing to the petitioners would not be necessary at this stage.
A Division Bench of this Court in Court on its own motion Vs. State of Punjab & Another, CWP No. 4886 of 2003, decided on 04.10.2008, has issued direction to the Municipal Corporation to remove unauthorized constructions over the public land. The relevant direction reads as under:-
(i) the State of Punjab is directed to take a conscious 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 CWP Nos. 15140, 16409 of 1999 & CWP No.16476 of 2000 6 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 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 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.
Since the unauthorized construction was not removed in its entirety within the area of Municipal Corporation, Ludhiana, various contempt petitions were filed before this Court, such as COCP Nos. 1299 of 2009 and 545 of 2010, which are still CWP Nos. 15140, 16409 of 1999 & CWP No.16476 of 2000 7 pending before this Court.
The Municipal Corporation has filed its written statement in the year 2000. Keeping in view the interest of justice and the fact that petitioners are claiming to be occupants of a residential unit, though constructed unauthorizedly, I find that the refusal by all the petitioners to the show cause notices, does not seem to be possible.
Therefore, the order of demolition dated 14.10.1999 is quashed. The petitioners are given liberty to file objections to the show cause notices dated 07.10.1999 within three weeks before the competent authority. The competent authority shall pass an appropriate order after considering the reply or objections, if any, filed by the petitioners expeditiously preferably within a period of three months.
Writ petitions stand disposed of accordingly with the above said directions.
(HEMANT GUPTA) 19.01.2011 JUDGE aj