Mohmmad Shahnawaz and Others vs State of Uttarakhand and Another

Barin Ghosh, C.J.—The subject matter of challenge in the instant writ petition is the notice dated 30.10.2009 issued by the Respondent Nagar Palika. As will be evident from the notice itself, the same was issued in view of an order passed by this Court on 22.10.2009 in connection with a Public Interest Litigation. By that order, amongst others, this Court directed Nagar Palika to remove all encroachers from public drains. Before the said order was passed, Nagar Palika did not bring to the notice of this Court that Nagar Palika itself allowed many people including the Petitioners to cover open public drains and thereupon to install kiosks thereon. Nagar Palika also did not bring to the notice of this Court that in relation to such kiosks Nagar Palika has entered into agreements with such persons including the Petitioners and is collecting rent month by month.

It appears that when the Public Interest Litigation was being considered, it was brought to the notice of this Court that public drains have been covered by people and kiosks have been constructed thereon, the Court felt that the same is not permissible and accordingly directed Nagar Palika to take action, proceeding on the basis that the action of covering open public drains for the propose of installing kiosks was illegal action on the part persons covering the same.

It is true that open drain is a health hazard. Therefore, if steps are taken to cover the same up, that would be in consonance with discharge of public responsibility. If Nagar Palika is incapable of converting open drains into covered drains, it is open to Nagar Palika to introduce such scheme as would be in accordance with public interest, but in the instant case, while Nagar Palika permitted open drains to be covered up, it also permitted kiosks to be built up thereon and accordingly prevented for all practical purposes access to the drain under cover. Such an action on the part of Nagar Palika cannot be said to be in public interest inasmuch as in the event congestion takes place in the drain beneath the cover, there would be no access to remove such congestion. In consequence thereof, there would be overflow at some places and people will suffer.

The Court, while passing the order on 22.10.2009, was informed by at least one intervener to the effect that Nagar Palika has permitted him to erect kiosk on top of a drain. The Nagar Palika was asked to give a reply to the intervention application. In reply to the said intervention application, Nagar Palika brought on record that it did grant such permission to the said intervener but subsequently it took a decision to cancel all those permissions and also to remove those kiosks and to rehabilitate the kiosk holders at some other place.

That being the situation, the notice being the subject matter of challenge in the instant writ petition having admittedly been issued prior to such decision of Nagar Palika, should be held to be bad in law and accordingly, the same is quashed. This order, however, shall not stand in the way of Nagar Palika taking further action in public interest to remove kiosks from over public drains and particularly when there is a proposal to rehabilitate the kiosk owners. It is hoped and expected that Nagar Palika shall give more emphasis to public interest and accordingly, shall implement the decision of its Board, but at the same time, having had permitted the Petitioners to have their kiosks on the public drain and having had decided to relocate them at some other place, would do so simultaneously but as quickly as possible.

Writ petition is accordingly disposed of.