CWP No. 13322 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 13322 of 2008 Date of Decision: 07.07.2009 Avtar Singh and others ..Petitioners versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. Anand Chibber, Advocate for the petitioners Mr. R.S.Khosla, Advocate for respondents No.1 and 2 Mr. Gaurav G.S.Chauhan, Advocate for respondent No.3 Mr. R.K.Sharma, Advocate for respondent No.4 Mr. Amit Aggarwal, Advocate for respondent No.5. ***** T.S.Thakur, C.J. (Oral) This petition purports to raise an environmental issue and prays for a writ of mandamus directing the respondents not to demolish the retaining walls constructed on the banks of what is known as 'Singh Choe Nala' and a RCC slab placed over the same. The controversy arises in the following circumstances:- The petitioners are residents of New Generation Duplex Colony, Zirakpur in the State of Punjab. Running across the said colony is a storm water drain known as 'Singh Choe Nala', which starts from near about from the military area in Panchkula in the State of Haryana and flows down to Zirakpur to eventually join River Ghaggar. Writ CWP No. 13322 of 2008 [2] Petition No. 1840 of 2005 was filed in public interest by Shri Om Parkash, a Municipal Councilor of Panhkula, in which he prayed for a mandamus directing the respondents to take immediate steps to stop unauthorised and illegal squeezing/narrowing of 'Singh Choe Nala' at various places in the State of Punjab and to ensure that the width of the said Nala is not narrowed down from its original width so that Panchkula City does not get flooded during rainy season because of such narrowing. The immediate provocation for filing the said petition, appeared to be the flooding of parts of residential area in Panchkula as well as in Punjab on account of unauthorised constructions raised by the people on the banks of 'Singh Choe Nala', which had the effect of narrowing the Nala and thereby obstructing free flow of water in the same especially during the rainy season. By an order dated 03.05.2006, a Division Bench of this Court disposed of the said petition with the observation that the Chief Secretaries of two States would constitute a Committee to examine on regular basis whether any steps are required to be taken for preventing the obstruction in the free flow of water in 'Singh Choe Nala' and addressing problems of the residents of the area. Contempt petition, COCP No. 796 of 2007 was then filed alleging breach of the said direction of this Court. By an order dated 04.12.2007 passed by a Single Bench of this Court in those proceedings Mr. Vijay Jindal, Advocate was appointed as Local Commissioner to make a spot inspection and to submit a report regarding clearing of the obstructions in the 'Singh Choe Nala'. The respondents were also directed to lend assistance to the Commissioner to conduct a spot inspection. The Local CWP No. 13322 of 2008 [3] Commissioner accordingly appears to have conducted a spot inspection in the presence of Chief Engineer (Drainage), Punjab and other officers and submitted a report, a copy whereof has been placed on record by the petitioners as Annexure P-6. A reading of the said report would reveal that the width of the 'Singh Choe Nala' at the entry point in Punjab State is said to be approximately 54-55 feet. It is further reported that at RD5880 a private builder has covered the entire 'Singh Choe Nala' with pucca bridge/slab over a length of 160 feet. Some other aspects referred to the Commissioner have also been noticed by him and the photographs etc. placed on record with the report to indicate how the Nala flows down different areas of Haryana and Punjab and has varying widths at different places. The Punjab Government have also issued a Notification dated 07.11.2007 directing all concerned to remove all the obstructions created by them at any place on the 'Singh Choe Nala' so that the natural flow of water in the same is not obstructed or diverted in any way. It is not in dispute that the contempt proceedings were finally disposed off by a learned Single Judge by an order dated 31.10.2008 with the observation that the authorities had and were taking suitable measures in compliance with the directions issued by this court regarding removal of obstructions on the 'Singh Choe Nala' and consequent prevention of flooding of the areas in Punjab and Haryana. The petitioners had in the meantime filed the present petition apprehending demolition of the structures raised over a length of 160 feet of the Nala while it flows through their colony. The apprehension of the petitioners arose from the past that since the Local CWP No. 13322 of 2008 [4] Commissioner and the officers accompanying him had noted the construction of a slab over the Nala and the retaining walls raised on both sides of the same, the authorities may in compliance with the directions issued by this Court in Civil Writ Petition No. 1840 of 2005 take steps for demolition of the said walls and the slab. In response to the notice issued by this Court, the respondents have filed their counter affidavits in which it is, inter-alia, asserted that the construction of retaining walls and placing of slab over the same by the petitioners or builders who had sold the units to them was wholly unjustified and improper. It is alleged that the said construction has not only narrowed the Nala width but also obstructed the free flow of the water. Periodic cleaning of the Nala by the authorities concerned has also been rendered difficult bythe construction unauthorisedly raised by the petitioner. It is alleged by Haryana Urban Development Authority, which is one of the respondents in these proceedings, that on account of narrowing of the Nala by construction of the retaining walls and laying of the slab, certain sectors get flooded during the rainy season. We have heard learned counsel for the parties at some length and perused the record. The fact that 'Singh Choe Nala' drains out storm water and probably a part of the Municipal waste Water also, is not in dispute. That it serves the residential area in Panchkula as much as it does the areas situate down stream is also not in dispute. It is also common ground that the Nala and its embankments are entirely vested in the State of Punjab and Haryana depending upon where the same flows within their respective territories. None of the petitioners CWP No. 13322 of 2008 [5] can or have claimed any right or interest in the Nala nor can they possibly justify the unilateral action taken by them qua the same whether in the form of construction of retaining walls or any other structure. According to the report submitted by the Local Commissioner in the contempt proceedings, the Nala at most of the places emits foul smell but even the existence of any such problem which may be a health hazard for the residents of the area may not itself justify the residents taking the law in their own hands and building retaining walls or other structures over the same in what they may consider to be a step necessary for getting-rid of the menace. The proper course for any one aggrieved of any such a situation would have been to seek appropriate redress from the Court, in appropriate proceedings. Suffice it to say that neither the builders nor the residents had any legal right or justification to unilaterally and without proper approval of the authorities concerned raise any construction on the banks of the Nala or cover the Nala at any place. The next question then is whether we need to straight away direct demolition of the retaining walls and the slab constructed over the same. Learned counsel for the petitioners argued that construction of the retaining walls and the slab over the same simply saves the residents of the area from the menace of mosquitos and foul smell emitting in the area and in no way obstructs the flow of the water through the Nala nor is it a cause for flooding of the areas in vicinity. This position has been stoutly disputed by learned counsel for the respondents who argued that one of the major reasons why the areas on the banks of the Nala get flooded during monsoon, is the obstruction CWP No. 13322 of 2008 [6] caused by unauthorised construction raised by the people including the petitioners herein. It was argued that the unilateral action of the petitioners in placing of the slab and constructing retaining walls deserves to be deprecated and the authorities permitted to remove the same. Having given our careful consideration to that submission, we are of the view that while any obstruction resulting from the alleged constructions raised by the petitioners or the builders shall have to be removed, the question whether there is any obstruction at all is a matter that may require to be once again verified by the competent authority by holding a spot inspection. There is no gainsaid that the construction is vulnerable to action at the instance of the respondents, but the mere fact that it is unauthorised being without any prior approval of the authorities, may not itself call for its demolition. Demolition would be justified if the Experts on the subject come to a definite conclusion that the construction of the retaining walls on the Nala and the slab over the same results in obstruction in the flow of the water and can result in flooding of the area on account of over flowing of the Nala. Action may also be justified against the constructions raised provided the authorities face any difficulty in periodic cleaning of the Nala. So also the authorities may like to take action in case they find that the slab area is being misused by any resident for any purpose which is not authorised like parking and holding of functions etc. or any such other activity. Interference or obstruction with the plans for better development of the nallahs or its surrounding area may also provide a justification for the authorities to demolish the constructions raised. CWP No. 13322 of 2008 [7] Suffice it to say that the issue will have to be re-examined by the authorities concerned before they actually take any action by way of demolition of the structure already raised. Without meaning to cause any delay in any such action especially because of the current monsoon season, we direct that the Chief Engineers Drainage of Punjab and Haryana as also Chief Engineers H.U.D.A. & GMADA may together have a spot inspection and take a final decision as to the action that needs to be taken regarding the retention or demolition of the construction raised by the petitioner over the same. We make it clear that these directions shall not be taken as expression of any opinion whether the construction should or should not be removed immediately nor should we be understood to be declaring that the construction is or is not leading to any obstruction of flow of the water. The Experts on the subject would be free to take a decision upon spot inspection and record the same for any immediate or future action. We also see no harm in, two representatives of the petitioners, remaining present when the Experts make a spot inspection. With the above observations and directions, we dispose of this writ petition leaving the parties to bear their own costs. (T.S.THAKUR) CHIEF JUSTICE (KANWALJIT SINGH AHLUWALIA) JUDGE 07.07.2009 'ravinder'