IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPIL No. 2 of 2006 Date of decision: 06.07.2011 ________________________________________________________________ Asha Thakur & others. .....Petitioners. Versus State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice Kurian Joseph, C.J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioners: Court on its own motion. For the respondent: Mr. R.K. Bawa, AG with Mr. Ankush Dass Sood and Mr. J.K. Verma, Dy. AG, for respondents No. 1, 2, 4 and 5. None for respondent No. 3. Mr. Sharawan Dogra, Advocate, for respondent No. 6. V.K. Sharma, J. (Oral) The petitioners, who claim themselves to be the permanent residents of S.D.A. Complex, Kasumpti, Shimla, for the last more than 25 years, addressed a petition alongwith news paper clippings and copies of representations to various authorities, including respondent No. 3, to Hon'ble the Chief Justice regarding 'Nuisance due to no parking facility and toilet 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... facility in the S.D.A. Complex, Kasumpti, Shimla – 171 009 and no proper/Pakka Nalla for the entire water drained of the S.D.A. Complex' the same was taken up by the Court suo motu as a public interest litigation. 2. The grievances raised by the petitioners are as under: “1. That since the time S D A complex has been made by the govt. more than 20 directorates have been shifted to Kasumpti and parking for the cars of the officials serving in the complex as well as the general public has not at all been provided by the govt. as well as the then S.D. A authorities. Every day there is a paper clipping in this regard in the news papers also. 2. We have made police complaints also in this regard but to no avail, since most of the vehicles are not parked in the parking for the govt. vehicles but nothing has been done till date. So far as the vehicles of the “Panchayati Raj” and “Rural Development Deptt.” are concerned thy do not pay heed to our written representations even. Their vehicles are parked in the middle of the roads by painting their car numbers in the walls of their directorates or on the retaining walls on the opposite side. This is not the system being followed by these two directorates only the same system is being followed by the “NABARD”, “Directorate of Social welfare deptt”, “State council for science and technology” and “Employees provident fund commissioner” official as they do not allow even the lawyers to park their vehicles in front of their buildings or the complexes. 3. That the employees of entire S.D.A. Complex, general public are compelled to park their vehicles at road side and even the lawyers coming to the court of Settlement Officer, Director Consolidation, Registrar, Co – op. Societies, Commissioner, Income tax, Sales tax tribunal, District, consumer disputes redressal Forum and State, consumer disputes redressal commission are not allowed to park their vehicles in front of the offices in ...3... the complex. We have seen a lot of times the lawyers arguing with the drivers in front of Director, consolidation court, Settlement Officers court, Sales tax tribunal, District consumer Forum and State Consumer commission and even lot of times we 4. That another issue that only toilets made for such a huge area are lying in a deteriorated condition as what to talk of going for toilet one can not even dare to enter these toilet. If the corporation is not able to take care of these toilets the same may be handed over to “Sulabh Shauchalya” authorities. More over the same are insufficient for the use of the general public. 5. That for the solution of the parking problem there is lot of space in front of Settlement office and behind the G.M., B.S.N.L., office which can be developed as parking and except this a park has been made b y the H.P. Housing board in the center of the S.D.A. Complex, which is used by them for giving it on rent for exhibitions held by the electronics companies and their authorized dealer that too twice or thrice in a year. If these two places are acquired for the parking place by the administration in the public interest the same will generate a lot of revenue also for the State. 6. That one more issue that no proper drainage system has been made b y the administration for the draining the water of the entire S.D.A. Complex, which is endangering the “Dev Nagar” area as the same flows like a “local khud” in the rainy season as in the last rainy season also the same destroyed the pedestrian path of the residents for which a deputation had met with the Deputy Commissioner along with a representation, but perhaps the same was thrown by him in the dust bin.” 3. In reply, on behalf of respondent No. 1, it is stated as under by way of preliminary submission at para 1 and para 7 on merits: ...4... “1.(Preliminary submission): That while filing the present petition (PIL), the petitioners majority of whom are advocates have mainly pointed out in this petition lack of parking and toilet facilities in SDA Complex Shimla.; Beside this petitioners have also alleged that there is no proper / pucca Nallah for entire water which drained out of SDA Complex Shimla. In this behalf it is submitted that as far as parking and toilet facilities in SDA Complex, Karumpti Shimla is concerned, the replying respondent or respondent department has no concern with the same. For the remaining allegation of no proper pucca Nallah for entire water draining out of the SDA Complex, the same appears to have aimed against respondent department / National Highway wing of Public Works Department. As such in this behalf, it is submitted that NH-22 between RD 10/000 Km. To 10/940 Km. passes below SDA Complex, Kasumpti. This National Highway has been constructed during the year 1989. In between this distance of approximately one kilometer, total six culverts have been provided by the respondent department. The same culverts are as per the norms of the Public Works Department with a specific purpose to ease out the surface water of the road through these culverts. As far as the position of no proper pucca Nallah for the entire water draining out of the SDA Complex, it is submitted that repeatedly, the matter has been taken up by Executive Engineer, NH Solan with the S.D.O. (Civil) Rural, with a copy of Executive Engineer, HP Housing and Urban Development Authority, Division No. 2 Kasumpti Shimla-9 as well as Executive Engineer, B&R Division, M.C. Shimla vide letter dated 30.7.2004, so as to ease out and channelise the storm water properly within their area to save the private property at the Vikas Nagar. In the easing out of this water the concerned department should formulate its proposal such that this water is adequately distributed between the culverts already ...5... existing on the National Highway running just below this complex. However, factual position of site is that for the storm / rain water draining out of Commercial Complex, Kasumpti there is apparently no proper channelization. This SDA Complex is being maintained by Municipal Corporation, Shimla since 1998 onward. As such till the storm water draining out of Commercial Complex Kasumpti is not properly channelized, the respondent department is unable to check the over flow of water from other places except six culverts. However, six culverts are functional since 1989 up till now and being properly cleaned by the respondent department. However, for water coming through these culverts, the replying respondent department is unable to help the petitioners for said water as the same has to got down only through these culverts being specifically provided for this purpose since 1989. Except these six culverts no other culvert can be constructed as the same may cause damage to properties lying below it. Hence, in view of this position, the present petition against replying respondent department deserves to be disposed of. 7.(On merits) That in reply to this para it is submitted that NH-22 between RD 10/000 m. to 10/940 Km. passes below SDA Complex, Kasumpti. This National Highway has been constructed during the year 1989. In between this distance of approximately one kilometer, total six culverts have been provided by the respondent department. The same culverts are as per the norms of the Public Works Department with a specific purpose to ease out the surface water of the road through these culverts. As far as the position of no proper pucca Nallah for the entire water draining out of the SDA Complex, it is submitted that repeatedly, the matter has been taken up by Executive Engineer, NH Solan with the S.D.O. (Civil) Rural, with a copy to Executive Engineer, HP Housing and Urban Development ...6... Authority, Division No. 2 Kasumpti Shimla-9 as well as Executive Engineer, B&R Division, M.C. Shimla vide letter dated 30.7.2004 so as to ease out and channelize the storm water properly within their area to save the private property at the Vikas Nagar. In the easing out of this water the concerned department should formulate its proposal such that this water is adequately distributed between the culverts already existing on the National Highway running just below this complex. However, factual position of site is that for the storm/rain water draining out of Commercial Complex, Kasumpti there is apparently no proper channelization. This SDA Complex is being maintained by Municipal Corporation, Shimla since 1998 onward. As such till the storm water draining out of Commercial Complex Kasumpti is not properly channelized, the respondent department is unable to check the over flow of water from other places except six culverts. However, six culverts are functional since 1989 up till now and being properly cleaned by the respondent department. However, for water coming through these culverts, the replying respondent department is unable to help the petitioners for said water as the same has to got down only through these culverts being specifically provided for this purpose since 1989. Except these six culverts no other culvert can be constructed as the same may cause damage to properties lying below it. Hence, in view of this position, the present petition against replying respondent department deserves to be disposed of.” 4. The following averments have been set up on behalf of respondent No. 3 in its reply vide paras 2, 5 and 7: “2. That in reply to the contents of this para it is submitted that making of provision of parking facility in the SDA complex is either the concern of the respective govt. ...7... Departments which have their offices/Directorates in the said complex or that of the Municipal Corporation Shimla, under whose jurisdiction the area in question falls. 5. That in reply to the content of this para it is respectfully submitted that making provision for public toilets and maintenance of the existing toilets in the area is the concerns of M.C. Shimla which is a necessary party to the present dispute and no effective orders/directions can be issued in this writ petition in the absence of M.C. Shimla. 7. That in reply to the contents of this para it is submitted that the areas of upper and lower Vikas Nagar including Dev Nagar is under the jurisdiction of the replying respondent which is at the valley side of the SDA complex. It is pertinent to mention that provision of proper rainwater drainage facility is the duty of M.C. Shimla. The replying respondent has already constructed culvert near Dev Nagar in order to diver the rain water flowing from SDA complex and adjoining area to the near by nallah so that no damage is done to the existing path and property. In addition to this the replying respondent is constructing another culvert near Uttam Bhavan at Vikas Nagar so that the rain water coming down from the upper areas are safely channelized towards the nallahs the replying respondent has taken all care to engage Labour for clearing the closed drains etc. in its own jurisdiction i.e., at Vikas Nagar and Dev Nagar area so that no damage is caused ...8... to path or property. In this manner the replying respondent has done everything in its power to ensure that the rain water is properly drained. And the local public has greatly benefited from its endeavour.” 5. Respondent No. 4 has taken the following stand vide para 3 of the reply: “3. That in reply to para 3 of the petition, it is submitted that there is no written complaint with the police for the parking of vehicles at any place. However, whenever police personnel found any vehicle wrongly parked or hindrance in the plying vehicles on the road, the same are being dealt with in accordance with law and every possible efforts are made for smooth use of the road. The Directorate Him Urja, Settlement, Backward Classes, AIDS Control have also painted their car Nos. on the walls of their Directorates. It is submitted that the vehicles are parked on the road in front of the offices whereas there is no notified parking places. The vehicles infringing the Traffic Rules are challaned.” 6. It is submitted as under by respondent No. 5 vide para 3 of the reply: “3. That in reply to the contents of this para it is submitted that no vehicle pertaining to Panchayati Raj or Rural Development department are parked in the middle of the road as alleged. It is denied that any written representation has been moved to either of these two departments. It is pertinent to mention here that there is official parking provided in the SDA Complex which ...9... can accommodate 25 to 30 vehicles. Out of these 25-30 vehicles some space is occupied by private vehicles and it is only meager 15 to 20 vehicles which can be parked in the said parking meant for the government vehicles. Since, there are more than 20 Directorates in the complex and number of official vehicles required to be parked in the SDA Complex is much more than the capacity of the parking for govt. vehicles. As a result official vehicles are parked in front of the respective Directorates. At present this directorate has fleet of 14 vehicles out of which only 6 vehicles can be parked in front of the building of the Directorate. Rest of the vehicles are parked adjacent to the building of Directorate. There is ample space for crossing of vehicles even after vehicles of the department are parked in front of the department and there is no shortage of space for the vehicles plying to and fro. As far as painting of numbers of the vehicles on opposite wall is concerned same is done with the intention to reserve the place of parking of vehicles of Director-cum- Special Secretary (RD&PR) and joint secretaries of Rural Development. The vehicles are required every now and then to take these officers to various places like Secretariat, Vidhan Sabha etc. Therefore, the space for these vehicles have been reserved for these officers. Rest of the contents of the para are denied as same do not pertain to replying respondent.” 7. Respondent No. 6 has taken the following stand vide paras 3, 5, 6 and 7: ...10... “3. That the issue raised in this para regarding parking problem in SDA Complex, it is submitted that the answering respondent has no control over these open places as the same pertain to individual Govt. departments. So far as parking of vehicles by various department ts in the middle of the road is concerned, the issue also does not relate to the answering respondent as the said road leading from Bye-Pass to Kasumpti Bazar belongs to HP Public Works Department which is maintaining the same. It is submitted that it is the duty of Police administration to regulate traffic on the said road. 5. That in reply to this para it is submitted that there exists two toilets in this area which have not been constructed by the respondent Corporation. The condition of the4se toilets is not good and these toilets need repair for which the answering respondent has already initiated process to get the same repaired at the earliest. It is further submitted that the decision with regard to handing over of these toilets to Sulabh Sauchalyas for maintenance can only be considered after the same are repaired. 6. That in reply to this para the submissions made by the petitioners regarding acquisition of space in front of Settlement Office and behind the Office of G.M, BSNL and the park located in the centre of SDA Complex for construction of parking, it is submitted that both these sites are not owned by the answering respondent. However, it would be kept in view to identify the ...11... parking places though there is scarcity of open spaces which can be utilized as parking places in that area. Moreover, there are many other considerations which are to be taken in to account while identifying open spaces for different public use. Further, it is re-asserted that respondent corporation does not own any open land in SDA Complex, which can now be used as parking places. 7. That in reply to this para it is submitted that the drain touching the road leading from Kasumpati Bye-pass to Kasumpati Bazar, which is passing through SDA complex, is owned by the HP Public Works Department and the maintenance of the said road as well as the drain touching the said road is to be carried out by the HP Public Works Department.” 8. On 02.06.2008 a direction was issued to respondent No. 4 to ensure that no permanent/idle parking is allowed on the public roads/streets and the violators are punished and status report be submitted to the Court. Accordingly, respondent No. 4 filed the requisite affidavit of the Additional Superintendent of Police, Shimla District, Shimla. Para 1 to 4 whereof read as follows: “1. That above titled CWP (PIL)2/2006 was listed on 2-6-2008 when this Hon'ble High Court pleased to direct the replying respondent to ensure that no permanent/idle parking of vehicles on the public roads be allowed. 2. That in this regard, it is submitted that necessary directions has been issued to Dy. Superintendent of ...12... Police (Traffic) Shimla, SHOs PS Sadar, East, West, Dhalli and New Shimla not to allow any permanent/idle parking of vehicles on the road side and to take steps to remove any abandoned or unserviceable condition vehicles found parked permanently on the road side immediately and if the owners of the vehicles failed to remove such vehicles the directions to remove the same by police crane and to take legal action against violators has also been issued. For idle parking 5050 vehicles has been challaned during 1.7.2007 to 31.5.2008 by the Traffic Police in Shimla Town area. 3. That it is further submitted that in the month of May, 2008 two teams comprising officers of police, revenue and national highway were constituted to remove junk vehicles from the road side and 50 vehicles have been removed/parked in the safe places to avoid traffic hazard. 4. That the replying respondent assured the Hon'ble Court that all the SHOs and Traffic staff will not allow any permanent/idle parking on the road side and when ever there will be any violation found/noticed legal action shall be taken against the violators in accordance with law.” 9. In compliance of order dated 19.08.2009, passed by this Court, respondent No. 1 has filed the following status report about the improvements made towards parking facility in the area by way of affidavit filed by the Principal Secretary (PW) to the Government of H.P: ...13... “1. That the above mentioned writ petition (PIL) is pending disposal before this Hon'ble High Court. That in this writ petition the petitioners majority of whom are advocates have mainly pointed out that in SSA complex there is lack of parking and toilet facilities and there is no proper/pucca Nallah for entire water which drain out of SDA Complex Shimla.; In this writ petition earlier reply on behalf of Deponent office has been filed by the Superintending Engineer, NH Circle, Shimla during March, 2006. In this reply with regard to status of drain water which pertains National Highway wing of Public Works Department stands submitted whereas with regard to parking and toilet facility it has been submitted that the same pertains to SDA Authority. After the filing of this reply lastly this writ petition was listed on 19.8.2009 when this Hon'ble Court has been pleased to pass following orders: “Respondent No. 1 is directed to file status report about the improvement, if any, made towards parking facility in the area in question.” 2. That in this behalf it is respectfully submitted that immediately upon receipt of above directions, the matter was taken up with Superintending Engineer, NH Circle, Shimla and Superintending Engineer, 4th Circle, HP PWD, Shimla to furnish the status report about the improvement, if any, made towards parking facility in the area in question. In compliance to this Superintending Engineer, 4th Circle, HP PWD, Shimla vide letter dated 18.9.2009 has intimated as under:- ...14... A. That total length of road from N.H. Vikasnagar – Kasumpti to Kasumpti stations via SDA Complex is 500 Mtrs. The same is under the jurisdiction of M.C. Shimla. Till day this road has not been handed over to Public Works Department. The metaling and tarring of this stretch of road was carried out by the Public Works Department under Division No. 2 during the year 2005/2006 as a deposit work of Rs. 10 lacs through contractor. Since then no work has been done by the PWD regarding the parking facility in the SDA Complex. It is submitted that the said commercial complex was earlier built by SDA now HIMUDA. All the facilities provided in the complex have been included in the cost of said commercial complex so built by respective authority, as such, all the facilities, if any, lacking are to be provided by them. B. That Executive Engineer NH Division, Solan vide letter dated 19.9.2009 has intimated that National Highway-22 passes below SDA Complex, Kasumpti, between RDs Kms. 10/0 to Kms. 10/940 which was constructed during the year 1989. there are six culverts below SDA within this reach which are functional and the drains connecting these culverts are also functioning properly. As far as parking of vehicles in SDA Complex is concerned, it is submitted that National Highway has nothing to ...15... do with that as the jurisdiction does not fall under NH. It is further submitted that to avoid accidents and to allow smooth flow of traffic on National Highways, parking on or along National Highways is not permitted.” 10. In view of the facts and circumstances of the case and particularly the replies/affidavits filed on behalf of the respondents, we are of the view that no fruitful purpose would be served by continuing with the present petition, which is accordingly closed reserving liberty to the petitioners to ventilate their surviving grievances, if any, before the concerned authorities or by way of appropriate proceedings in an appropriate court/forum including this Court. 11. The petition is disposed of in the above terms, so also pending application(s), if any. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge 6th July, 2011 (virender) V.K. Sharma, J.