IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13121 of 1998 DATE OF DECISION: December 2, 2008 Sarwan Singh and another …Petitioners Versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. R.C. Dogra, Senior Advocate, with Mr. Sanjeev S. Thakur, Advocate, for the petitioners. Mr. Suvir Sehgal, Addl. AG, Punjab. for respondent Nos. 1, 3 & 4. Mr. R.L. Gupta, Senior Advocate, with Mr. C.M. Sharma, Advocate, for respondent No. 2. Mr. M.L. Sarin, Senior Advocate, with Mr. Vikas Suri, Advocate, for respondent Nos. 14 to 25. 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 in the Digest? C.W.P. No. 13121 of 1998 M.M. KUMAR, J. 1. This order shall dispose of C.W.P. Nos. 13121 of 1998 and 1140 of 1997. However, the facts are referred from C.W.P. No. 13121 of 1998. This petition was filed in the year 1998 with a prayer for issuance of mandamus to the respondents directing them to remove encroachments from the common purposes land such as parks, roads, vacant sites for public goods and stopping the pollution of the water and environment in the area of Mata Rani Mandir, Phagwara. Similar prayer has been made in the connected petition and directions have been sought for implementation of the development scheme dated 20.8.1969 by taking possession of the land of Municipal Committee, Phagwara, meant for common purposes including parks and roads from al unauthorised persons. 2. After issuance of notice of motion various orders have been passed to ensure that all unauthorised construction and encroachments are removed. On 2.6.1999, learned counsel for the Municipal Committee, Phagwara, had stated that proceedings were already initiated for removal of encroachments by issuing notices to the persons who had made unauthorised constructions/encroachments. On 25.1.2000, the Division Bench noticed existence of large scale encroachments and the efforts being made by the respondent Municipal Committee to regularise those encroachments. Some industrial units operating within the residential area in the Town Planning Scheme No. 5 Part-II were also subjected 2 C.W.P. No. 13121 of 1998 to certain orders and assurance was given by the respondent Municipal Committee that steps would be taken for removal of encroachments from public roads and parks, as is evident from order dated 19.10.2000. It would be appropriate to take notice of the order dated 5.3.2001. The Bench while refusing to record any conclusive finding on the status of the existing constructions was fully convinced that it was in public interest to direct that no transfer of the land earmarked for public parks should be permitted and action should be taken by the Municipal Council for removing the encroachments from public roads and parks. It restrained that no transfer deed for alienation of the land forming part of public parks be registered by the concerned authorities of the State. The District Administration was also directed to help the Municipal Council to carry out the task of removing encroachments from public roads and parks. The Bench also directed the Courts at Phagwara and Kapurthala to expeditiously dispose of the pending cases involving encroachments on public roads and parks and issued direction to them not to grant ad interim injunctions without giving notice to the Municipal Council. A detailed status report with regard to removal of encroachments from public roads and parks was to be filed by the Municipal Council, Phagwara. Thereafter, some applications under Order I Rule 10 C.P.C. were moved for becoming parties, which were allowed on 22.5.2001. The demolition of constructed houses and other buildings was stayed on 10.5.2001 but it was not to include removal of encroachments existing on the roads. 3 C.W.P. No. 13121 of 1998 3. The petition was admitted on 19.7.2001. However, the matter was again taken up by the Division Bench and the order dated 19.7.2001 admitting the petition was recalled on 22.3.2007. The Deputy Commissioner, Kapurthala, appeared before the Court and made various suggestions which are evident from the perusal of order dated 13.7.2007, which reads thus:- “ i) that open spaces/parks should be maintained by Municipal Council, Phagwara by fencing up the existing park area and by maintaining them. ii) Municipal Council, Phagwara should retrieve some of the encroached/deviated area in Parks P3 and P4. iii) Municipal Council, Phagwara can acquire an area of 33275 Sq. feet (being deficient park area) from the private owners of existing open spaces, in accordance with the provisions of the law governing the T.P. Scheme under Punjab Municipal Act, 1911. iv) Municipal Council, Phagwara should remove the encroachments of 4237.5 Sq. feet caused by projections and 555 Sq. feet caused by footsteps/ramps from residential houses. v) 24 factory units operating in the area, which are non polluting nature may be allowed to continue in the area and M/s Bhalla Ball Bearings and other 4 C.W.P. No. 13121 of 1998 industries which are causing pollution, may be permitted to shift their unit from this area within six months. vi) Municipal Council, Phagwara should complete the rest of the formalities under the T.P. Scheme as required by the Punjab Municipal Act, 1911 and protect and maintain the existing parks/open spaces, roads. Affidavit for implementing the scheme by Municipal Council, Phagwara shall be filed within four weeks. Copy of the same be given to the counsel for the other parties and objections/observations, if any, be made by them on the next date of hearing. Mr. Sandhawalia, Advocate who is present on behalf of M/s Bhalla Ball Bearings Industry says that the site where the industries including M/s Bhalla Ball Bearings Industry are to be shifted, though identified, has not yet been developed. We take judicial notice of this fact and direct the authorities to develop the site and file the report on the next date of hearing.” 4. Thereafter the matter was taken up on 20.8.2007, the Division Bench in its order dated 20.8.2007 notices the conclusion and summary of suggestions made by the Deputy Commissioner and the same reads thus:- 5 C.W.P. No. 13121 of 1998 “ Pursuant to our order on May 15, 2007, we had asked the Deputy Commissioner, Kapurthala, to go into the whole gamut of unauthorised constructions and unregulated development in the colony in question and find out as to how they can be regulated so that green patches, roads and streets of uniform size can be cared out and the existing colony be improved and the necessary infrastructure like sewerage, rain water drainage, garbage disposal etc. be provided. Pursuant to our order, the Deputy Commissioner, Kapurthala, submitted his report after having a detailed survey of the area and suggested some remedial measures that find reflection in our order passed on July 13, 2007. On the last date of hearing, we had directed the Municipal Council, Phagwara, to file an affidavit with regard to the implementation of the Scheme, as suggested by the Deputy Commissioner, Kapurthala, which has now been filed through its Executive Officer Mr. Paramjit Singh, who is present in Court. The affidavit reads as under:- “ 1. xx xx xx xx. 2. That penultimate para of the report of the Deputy Commissioner reads as under:- 6 C.W.P. No. 13121 of 1998 “11. CONCLUSION AND SUMMARY OF SUGGESTIONS: 11.1 Considering the fact that this T.P. Scheme is a still born scheme, which remained in papers and could not be implemented due to the fact that a lot of development had taken place prior to the notification of the scheme, and the necessity to maintain a reasonable level of civil facilities like parks, roads etc. the following are suggested: 11.2 As regards open spaces/parks, the Municipal Council, Phagwara should fence up the existing park area and maintain them. 11.3 Municipal Council, Phagwara should retrieve some of the encroached/deviated area in Parks P-3 and P-4. 11.4 Municipal Council, Phagwara can acquire an area of 33275 sq. ft (being the deficient park area) from the private owners of existing open spaces, in accordance with the provisions of the law 7 C.W.P. No. 13121 of 1998 governing the T.P Scheme under the Punjab Municipal Act, 1911. 11.5 Municipal Council, Phagwara should remove the encroachments of 4237.5 sq. ft. caused by projections and 555 sq. ft. caused by footsteps from residential houses. 11.6 The 24 factory units operating in the area, which are of non-polluting nature may be allowed to continue in the area and M/s. Bhalla Ball Bearings, who are causing pollution, may be permitted to shift their unit from this area within 6 months. 11.7. Municipal Council, Phagwara should complete the rest of the formalities under the T.P. Scheme as required by the Punjab Municipal Act, 1911 and protect and maintain the existing parks/open spaces, roads.” 3. That para No. 11.1 of the report dated July 13, 2007 does not require any comment. 4. That so far as para No. 11.2 of the report is concerned, the Municipal Council, Phagwara has decided to accept the report in toto. The Municipal Council, Phagwara will do the fencing of the existing parks and will maintain 8 C.W.P. No. 13121 of 1998 them. Municipal Council, Phagwara has passed the Resolution bearing No. 124 dated July 17, 2002 in which provisional amount of Rs. 2.50 lacs has been passed for fencing the existing park area. The Municipal Council has called the tender and after completing the tender formalities, the works shall be allotted to the contractor for fencing the existing parks area. So far as the maintaining of the existing parks is concerned, the Municipal Council will develop the existing park areas one by one as the Municipal Council, Phagwara faced the scarcity of the funds in these days and these parks are vested only in one ward and the Municipal Council has responsibility to look after the whole city of Phagwara. 5. That the Municipal Council, Phagwara has accepted para No. 11.3 of the report. The Municipal Council, Phagwara shall make the earnest efforts to retrieve the possible encroachment/deviated area in Park P-3 and P-4. In this regard Municipal Council has given notice under Section 172 of Punjab Municipal Act, 1911 to the encroacher Tarsem Lal son of Daulat Singh bearing No. 1171 dated July 31, 2007 to vacate the encroached area within 30 days and failing which 9 C.W.P. No. 13121 of 1998 the Municipal Council will demolish the encroached area in Parks P-3 and P-4. 6. That so far as para 11.4 of the report is concerned, it is not within the competence of Municipal Council, Phagwara to acquire the area (deficient park area) from the private owners of existing open space. It is the State Government alone who can acquire the area as suggested by the Deputy Commissioner in his report dated July 13, 2007. It may be stated here in its judgment as report in AIR 1994 Supreme Court 2550 Yogendra Pal and others v. Municipality, Bhatinda and another, the Hon’ble Apex Court has struck down the provision of Section 192 sub- section 1 (c) of the Punjab Municipal Act, 1911. 7. That as per para 11.5 of the report, the Municipal Council, Phagwara would remove the encroachments caused by the projections and by the foot-steps/ramps from the residential houses. Necessary notices dated July 26, 2007 under Section 172 of the Punjab Municipal Act, 1911 have been issued to the encroachers (50 in numbers) asking them to remove the encroachment within 30 days and in 10 C.W.P. No. 13121 of 1998 default thereof, the Municipal Council would get it demolished in accordance with law. 8. That so far as para 11.6 of the report is concerned, it is the Industry Department of the Punjab Government which can remove M/s. Bhalla Ball Bearings a polluting unit as suggested in the report. 9. That so far as para No. 11.7 of the report is concerned, Municipal Council, Phagwara will make every efforts to protect and maintain existing parks/open space. In this regard, Municipal Council has installed the Board in the existing parks displaying parks belong to Municipal Council and fall under the T.P. Scheme 5 Part-II.” Let implementation of the Scheme as per the affidavit of the Municipal Council, Phagwara, be done. Be notified for hearing on October 05, 2007. Copy of the order be given ‘Dasti’ under the signatures of the Special Secretary.” 5. When the matter came up for further consideration on 21.10.2008, learned counsel for the petitioners apprise the Court that the directions issued on 20.8.2007 have not been carried in letter and spirit nor any status report as per direction has been filed. He complained that there were still residential houses in the park, which 11 C.W.P. No. 13121 of 1998 claim was contested by the learned counsel for the respondent Municipal Council, Phagwara. As there was no comprehensive affidavit giving details about the implementation of the directions issued by this Court on 20.8.2007 and 5.10.2007, we called for comprehensive report. Accordingly, an affidavit dated 15.11.2008 was filed by Shri Adarsh Kumar Sharma, Executive Officer, Municipal Council, Phagwara. The affidavit of the Executive Officer disclosed a number of steps which have been taken in respect of Park No. P-3 and P-4. It has been deposed that free access to the parks have been made and there is no hindrance in the free movement to the general public on their way to these parks and that open spaces/parks have been partially covered through boundary wall and partially through fencing with iron wire and concrete pillars. It has also been pointed out that priority is being given to provide drinking water supply and sewerage facilities to the residents of the municipal area. The Executive Officer has also deposed that drinking water and sanitation is being provided to the residents of the locality of Town Planning Scheme No. 5 Part-II and it is persuading the residents of the locality of Town Planning Scheme No. 5 Part-II for purchasing deficient park area at collector rates. In case the nearby residents of do not show their willingness to sell their land then process for compulsory acquisition would be initiated through the Deputy Commissioner, Kapurthala. A comprehensive rehabilitation plan is required to remove small factory units operating in the area because thousands of workers and their families are dependent on these small 12 C.W.P. No. 13121 of 1998 units. The Municipal Council, Phagwara, has already made a request to the General Manager, District Industries Centre, Kapurthala as well as the Executive Engineer, Punjab Pollution Control Board, Jalandhar, to take necessary legal action against these units, vide their letter dated 7.11.2008. 6. It is pertinent to notice that there is some dispute with regard to notification and de-notification of the Town Planning Scheme, which is subject matter of other petitions. The controversy raised in these petitions would not cover the issue of notification/de- notification of the Town Planning Scheme as the same is involved in a bunch of other petitions which are pending and dealt with separately. The order passed in these petitions, therefore, shall not be taken to have any effect on the pending petitions. 7. When the matter came up for consideration on 20.11.2008 before this Court, again the issue of encroachments in the park area was raised by referring to Park No. P-3. It was claimed that no specific affidavit was filed with regard to demolition of house belonging to one Shri Tarsem Lal in Park No. P-3. This Court has noticed that in the affidavit dated 25.1.2008, the only statement made by the Executive Officer was that the Municipal Council had retrieved the possible encroachment/deviated area in Park No. 3 and Park No. 4 and it has removed the encroachment of footsteps/ramps from the residential area by clearing the road and the streets by using JCB machine. The Court expressed dissatisfaction because nothing was said about demolition of encroachment to which reference was 13 C.W.P. No. 13121 of 1998 made in the order dated 20.8.2007. Accordingly, we asked the Municipal Council, Phagwara to file specific affidavit of its Executive Officer that the encroacher has vacated the encroached area. 8. Shri Adarsh Kumar Sharma, Executive Officer, Municipal Council, Phagwara, has filed affidavit dated 1.12.2008 by stating that on 31.7.2007 the encroacher Shri Tarsem Lal was asked to vacate the encroached area of Park No. P-3 and after receiving the notice he has himself demolished the excess/encroached portion of his house in Park No. 3. 9. After hearing learned counsel for the parties, we are of the considered view that no useful purpose would be served by keeping these petitions alive as necessary steps have already been taken. Accordingly, these writ petitions are disposed of with the observation that Municipal Council, Phagwara shall ensure that there is no encroachments by the unwarranted elements. We wish to make it clear that any observation made in this order shall not have any adverse effect on the pending litigation with regard to the polluted industries in the residential area or any scheme by the respondents in that regard. (M.M. KUMAR) JUDGE (JORA SINGH) 14 C.W.P. No. 13121 of 1998 December 2, 2008 JUDGE Pkapoor 15