Anil Kumar Gupta vs State of Uttarakhand & Others

Manoj Kumar Tiwari, J.

Per: Rajiv Sharma, ACJ.

Present petition has been filed pro bono publico to highlight the unauthorized encroachments made on the footpaths and roads at Rishikesh leading

to acute traffic jams throughout the towns of Uttarakhand. The petitioner has also highlighted the unauthorized constructions and encroachments made

on the public land by the religious bodies including the pollution of river Ganga and financial irregularities in the Nagar Palika Parishad, Rishikesh. The

petitioner has also highlighted that the respondents have not demolished Sai Mandir constructed on the public road, though the appeal was dismissed

under Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973. The Nagar Palika has regularized 27 encroachers on the

Government land at Virbhadra Marg.

The respondents have admitted 1127 encroachments in Ghat Marg, Mukherji Marg, Agnihotri Marg, Kshettra Road, Tilak Road, Lajpat Rai Marg,

Bhairo Mandir, Gole Market, Chandreshwar Marg, Haridwar Marg, Hiralal Marg, Maniram Marg, Bengali Mandir Marg, Sudama Marg, Pushkar

Mandir Marg, Jeevani Mai Marg, Subhash Chawk, Jhanda Chawk, Main Bazaar, Nabha House (Ghat Marg) in Rishikesh. The unscrupulous persons

have encroached upon and constructed the shops over Saraswati Drain to the extent of about 57 meters. The respondents have also not evicted 145

encroachers, who have encroached upon National Highway-58. The petitioner has also placed on record the details of 500 persons who have

encroached upon Railway Road, Shyampur Bye-pass Road, Pushulok, Bairage Marg, Veer Bhadra Road, Risikesh Doiwala Marg. As many as 13

unauthorized constructions have also been raised in Navin Mandi Sthal.

Initially, the Nagar Palika Parishad, Rishikesh has granted permission to the Sai Sewa Samiti on 28.05.2009, to raise the construction. Thereafter, it

was withdrawn. The Haridwar Development Authority has ordered for demolition of temple on 08.07.2009 against which Sai Sewa Samiti filed an

appeal before the Commissioner. The Commissioner has dismissed the same on 18.02.2010.

The petitioner has placed on record, the news item whereby 13 temples have encroached upon the public land. The illegal encroachment has led to

the pollution in Saraswati Nala. The Saraswati Nala has not been cleaned for last 10 years. Even the Nagar Palika Parishad has constructed 13

buildings without obtaining the permission from the Haridwar Development Authority. The petitioner has also highlighted the financial irregularities

committed by the Nagar Palika Parishad, Rishikesh including purchase and installation of Signal Lights in Rishikesh, decrease in collection of house

tax, collecting house tax from the persons unauthorizedly occupying the Government land. The petitioner has prayed for the removal of encroachments

from the public land, public roads, public paths and also demolition of unauthorized construction which was raised without obtaining the permission

from Nagar Palika Parishad and Haridwar Development Authority. The petitioner has also highlighted that the temples are raising construction on

public land with impunity.

The respondents have filed counter affidavits to the petition filed by the petitioner.

As far as Sai Sewa Samiti’s case is concerned, it is stated that after the orders of Commissioner Garhwal, Sai Sewa Samiti has filed revision

before the State Government and the proceedings were stayed. Latest status has not been placed on record.

It is stated that notices were issued to 1127 persons who have encroached upon the public paths as per the details given in paragraphs no. 4 and 5

of the writ petition.

The respondents have also taken a stand that notices were issued in the newspaper. Thereafter, District Magistrate was also requested to provide

the assistance.

The petitioner has also filed his rejoinder affidavit. In the rejoinder affidavit, it is specifically brought to the notice of the Court that the District

Magistrate has stated that no such request was made.

The counter affidavit filed by the respondents is evasive. The reply filed qua the unauthorized construction of temples on public land is also not

satisfactory.

The petitioner has placed on record sufficient material to prove that the respondents are remiss in discharge of their statutory duties by permitting

the citizens to raise unauthorized constructions/encroachments over the public paths, public roads including by the temples. The petitioner has also

placed on record the photographs, depicting therein, that the temples have been built on the public land, that too on busy roads.

The Court has passed various orders from time to time, on the basis of which, supplementary affidavit has been filed. The contents of the

supplementary affidavit are also not satisfactory. The large scale encroachment/ construction could not be carried out without the connivance of the

authorities. The authorities, instead of taking stern action against the encroachers of unauthorized construction, are shying away from enforcing the

mandatory provisions of law.

The Haridwar Development Authority has stated that an action has been taken under Section 27 and 28 of the Uttar Pradesh Urban Planning and

Development Act, 1973.

No person has a right to encroach upon the Government land. The temples cannot be permitted to come on busy roads and public lands. A stern

action is required to be taken, the moment unauthorized construction is commenced. The Authority concerned looks other way when people start

encroaching upon the Government land. It is the duty cast upon the authorities to ensure that no encroachment is made on the public land, forest land

and public streets. The ordinary citizens living in Rishikesh town are put to lot of inconvenience due to regular traffic jams in the entire town due to

encroachments made on the public roads. The Nagar Palika Parishad has also constructed toilet without permission.

The construction activities in Rishikesh are governed by the Master Plan enforced by the Haridwar Development Authority. The construction can

only be raised as per the Master Plan and the byelaws framed by the Nagar Palika Parishad. Any person, who has raised construction, even religious

bodies, in violation of the master plan and in breach of bye-laws, is required to be dealt with sternly.

Their Lordships of the Hon’ble Supreme Court in (1991) 3 Supreme Court Cases 341 in the case of Pratibha Cooperative Housing Society

Ltd. and another Vs. State of Maharashtra and others have held as under:-

“6. It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed

out by Mr K.K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules

and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to

curb such activities. We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the

entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to

the safety of occupiers and residents of multistoreyed buildings. The violation of FSI in the present case was not a minor one but was to an extent of

more than 24,000 sq. ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the

order for demolition of eight floors had attained finality right up to this Court. The order for demolition of eight floors has been substantially carried out

and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated

November 13, 1990.â€​

Their Lordships of the Hon’ble Supreme Court in (1995) 5 SCC 762, in the case of G.N. Khajuria (Dr) v. Delhi Development Authority in

paragraph 10 have held as under:-

“10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are

demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed

the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is

the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be

blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the

demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens.

Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens

is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the

commission of tainted acts, whereas the aim should be opposite.â€​

Their Lordships of the Hon’ble Supreme Court in (2011) 11 Supreme Court Cases 396 in the case of Jagpal Singh and others Vs. State of

Punjab and others have held that long duration of occupation or huge expenditure in making constructions thereon or political connections are no

justification for regularizing such illegal occupations. This could only be resorted in the case where lease is granted to landless labourers or members

of Scheduled Castes/Scheduled Tribes. Their Lordships have held as under:-

“2. Since time immemorial there have been common lands inhering in the village communities in India, variously called Gram Sabha land, Gram

Panchayat land (in many North Indian States), shamlat deh (in Punjab, etc.), mandaveli and poramboke land (in South India), kalam, maidan, etc.,

depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village

such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing

floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands

stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as

inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram

Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the Scheduled Castes/Tribes, but this was only to be done

in exceptional cases.

We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle

power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities

must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and

possession of the land in question must be handed back to the Gram Panchayat. Regularising such illegalities must not be permitted because it is Gram

Sabha land which must be kept for the common use of the villagers of the village.

The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari v. Kamala Devi4 (followed by the Madras High Court in

L. Krishnan v. State of T.N.5) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any

allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass

a similar order in this case.

Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of

illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram

Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India

are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of

such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making

constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal

possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to

landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the

land.â€​

Accordingly, we dispose of the writ petition by issuing the following mandatory directions:-

A. Respondent nos.2, 3, 4 & 5 are directed to remove the unauthorized constructions/ encroachments from the public land and the pavements in the

Rishikesh Town.

B. Respondent no. 5 is directed to seal the commercial buildings/property constructed in the residential area against the master plan and building

byelaws of the Haridwar Development Authority.

C. Respondent nos. 2 to 5 shall issue notices to the persons who have encroached upon the Government Land/pavement/Roads within a period of

three weeks by permitting them to file reply within two weeks. Thereafter, necessary orders of demolition to be issued.

D. Respondent nos. 2 to 5 are directed to ensure due compliance of previous demolition orders, if not stayed by any Revenue Court or Civil Court.

E. Respondent nos. 2 to 5 are also directed to seal the religious places, if these have been constructed on public land/pavement without any authority

of law.