Ajay Singh Rawat vs Union of India and Others

Alok Singh and S.K. Gupta, JJ.—Pursuant to our earlier orders, affidavit of Sri Rohitas Sharma, Executive Officer, Nagar Palika, Nainital has been filed. It is stated in the affidavit that different residential and commercial properties mentioned in Annexure No. 1, are in unauthorized/illegal possession of the persons mentioned in Annexure No. 1. At one hand, the District Administration and Municipality are facing problem to provide parking facilities and other utility services, on the other hand important municipal properties are in illegal and unauthorized possession of different former employees, their legal heirs and the people, who have political affiliation. We direct the Executive Officer, Nagar Palika, Nainital, District Magistrate, Nainital and SSP, Nainital to ensure eviction of all unauthorized/illegal occupiers, as mentioned in Annexure No. 1 within 60 days from today. They shall be at liberty to use such police force as they deem fit.

It is further stated in the affidavit of Sri Rohitas Sharma that the Nazool land which was being used for Pony stand, wrongly got allotted and declared free hold in favour of Ram Saran Sahdev, as mentioned in Annexure No. 2. Hon''ble Apex Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others, AIR 2011 SC 1123 : (2011) 112 CLT 130 : (2011) 1 RCR(Civil) 912 : (2011) 2 SCALE 42 : (2011) 11 SCC 396 : (2011) 2 SCR 250 : (2012) AIRSCW 2574 : (2011) AIRSCW 990 : (2011) 1 Supreme 641 having placed reliance of the earlier judgments of the Supreme Court in the case of Chigurupati Venkata Subbayya v. Paladuga Anjayya, SCC P. 529 and in the case of Hinch Lal Tiwari Vs. Kamala Devi and Others, AIR 2001 SC 3215 : (2001) 6 JT 88 : (2001) 4 SCALE 670 : (2001) 6 SCC 496 : (2002) 1 UJ 102 : (2001) AIRSCW 2865 : (2001) 5 Supreme 646 has held that the land reserved for public purposes or public utility cannot be allotted either for residential or commercial purposes either by the Collector or by the Municipality Board or Gaon Sabha or by the State Government. Hon''ble Apex Court was further pleased to issue direction that all such encroachment from the public utility land be removed forthwith.

In view of the above, we find that allotment made or grant of free hold rights made in favour of Ram Saran Sahdev are totally illegal and without jurisdiction. Therefore, we direct the Collector, Nainital and the State Government immediately to pass appropriate orders for cancelling the allotment free hold rights in favour of Ram Saran Sahdev and thereafter, he should be evicted from the land, in question, and land should be restored for the purpose of parking because, now a days, pony parking place is not required instead two wheelers-car parking is required; entire exercise should be completed within 30 days from today.

Mr. D.S. Patni, learned Counsel appearing for the Municipality, Mr. V.B.S. Negi, learned Additional Advocate General and Mr. Sandeep Kothari, learned Counsel for the Lake Development Authority fairly stated that they will come up with an idea to make multi storey parking on the existing DSA parking. Let, them file proposal on this point on the next date of hearing.

Mr. D.S. Patni, learned Counsel appearing for the Municipality, while taking us to the affidavit of Mr. Rohitash Sharma, Executing Officer of the Municipality dated 22.4.2015, contends that more than two crore rupees were released in favour of A2Z company; however, Forest Department has not provide any land for, dumping and treatment of municipal waste; further contends that Forest Department has not given no objection certificate; further contends that, for past last so many years, municipal waste is being dumped/thrown in the ditch of forest on the Hanuman Garhi Road; further contends that Municipality has not obtained any permission from the Central Government to dump the municipal waste or garbage over the forest land on Hanuman Garhi Road; he would like to check up as to whether any permission was obtained few years back or not; further contends that municipality has no place for the sewerage treatment plant; he submits that treatment plant is not within domain of Municipality and it is to be installed, established, run and managed by Uttarakhand Jal Sansthan and Jal Nigam; further submits that as on day, there is no sewerage treatment plant to meet out the present need.

Mr. V.B.S. Negi, learned Additional Advocate General submits that he will speak to the officers of Jal Nigam and Jal Sansthan and shall request to remain present in person before this Court on the next date of hearing; further submits that he will seek instructions from the State Government as to what steps are required to be taken for installation of the sewerage treatment plant to meet out the present need.

Mr. Sandeep Kothari, learned Counsel for the Lake Development Authority submitted that for the purpose of rehabilitation of the oustees from the Baliya Nala area, residential accommodations were constructed at Durga Pur Saraswati Vihar; further contends that few ineligible people were allotted such residential accommodations despite the fact that they were not residents of Baliya Nala area and were not affected by the landslide; further contends that an FIR was got registered by the Lake Development Authority.

Mr. D.S. Patni, learned Counsel for the Municipality, on the instruction of Mr. Rohitash Sharma, Executing Officer, submitted that few members and officers of the Municipality are in Allotment Committee and the Committee is headed by District Magistrate, he further contends that initially names for the allotments were recommended by the Committee of the Municipality for the allotment.

In view of the fact that residential accommodations constructed for the purpose of rehabilitation of oustees from the Baliya Nala area, due to landslide, were allotted in favour of some ineligible people, we deem it proper that investigation on the FIR should be conducted by the Special Investigating Team of the three members headed by officer not below the rank of Deputy Superintendent of Police to be constituted by DIG, Kumaon.

Mr. Patni, learned Counsel for the Municipality shall file list of allottees and occupiers of Saraswati Vihar houses on the next date of listing.

It is stated by Mr. V.B.S. Negi, learned Additional Advocate General on the instruction of Mr. Uday Singh Rana, Additional District Magistrate, Nainital that few people including business establishments were challaned for using polythene bags in violation of various directions issued by this Court and they were asked to pay fine as directed by this Court, however, they are not paying the fine.

In the peculiar facts and circumstances of the case, we direct that from the defaulters, such fine shall be recovered immediately as arrears of land revenue. If any defaulter fails to pay the fine or make obstruction in payment of fine, his name shall be placed before this Court, so that this Court may take appropriate action against the guilty for committing of contempt of Court or for the violation of the Court''s order.

Mr. V.B.S. Negi, learned Additional Advocate General shall find out as to how Ashoka and Capital Cinema Halls can be made functional, in view of the fact that there is no cinema hall in the city of Nainital, the most popular tourist destination.

It is reported by Mr. H.M. Bhatia, learned Member of the Committee of Advocate Commissioners'' as well as Mr. V.B.S. Negi, learned Addl. Advocate General that place reserved for Badminton Court near D.S.A. was under the illegal control of Mr. Anup Sah. However, with the intervention of the District Magistrate, possession thereof has already been received back by the District Sports Association.

Mr. V.B.S. Negi, learned Addl. Advocate General shall examine as to how it can be restored and make functional.

Mr. D.S. Patni, learned Counsel for the Municipality submitted that three posts of Sanitary Inspectors were sanctioned but Government has not appointed any Sanitary Inspector, as yet.

Mr. V.B.S. Negi, learned Addl. Advocate General submits that he will speak to the concerned Secretary and appropriate steps shall be taken at the earliest to fill up the vacant post of Sanitary Inspectors. List on 7th May, 2015.