C.W.P. No.4886 of 2003 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4886 of 2003 Date of decision: October 04, 2008. Court on its own motion ...Appellant(s) v. State of Punjab & Anr. ...Respondent(s) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 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: Shri S.S. Behl, Advocate for the applicant. Shri M.L. Saggar, Sr. Advocate with Shri G.S. Brar, Advocate Shri Amol Rattan Singh, Additional Advocate General, Punjab. Shri Ashok Aggarwal, Sr. Advocate, with Shri Mukul Aggarwal, Advocate, for MC Ludhiana. Shri Vinish Singla, Advocate, for MC, Patiala Shri T.S. Dhindsa, Advocate for MC Amritsar. ORDER Surya Kant, J. - Aggrieved at his removal as a Councillor of the Municipal Corporation, Ludhiana, one Satpal Puri filed CWP No.15572 of 2001 which C.W.P. No.4886 of 2003 -: 2 :- was dismissed by a Division Bench of this Court on 29.5.2002. The said Satpal Puri filed SLP (Civil) No.22649 of 2002 in the Supreme Court. While dismissing the SLP, their Lordships directed that “the Bench which passed the impugned order shall, after examining the record of the case, register a suo moto public interest case, issue notice initially to the Municipal Corporation and the State Govt. to appear, also directing them to carry out a survey so as to find out how much public property has been encroached upon and how many constructions have come up which would have the effect of defeating the Town Improvement Scheme.” [2]. This is how these suo moto proceedings came to be initiated by this Court in public interest, calling upon the State of Punjab and the Municipal Corporation of Ludhiana to undertake “a comprehensive survey of the entire municipal area of Ludhiana to identify unauthorized encroachments/ construction on govt. lands and municipal lands as also constructions made in violation of the sanctioned plan or without obtaining the sanctioned plan”. [3]. On 6.12.2003, it was informed on behalf of the Municipal Corporation that in a large number of cases encroachments could not be removed due to the restraint orders passed in about 200 cases pending in different civil courts at Ludhiana. Taking notice thereof and in order to ensure that the process of the court is not abused or misused by those who have made encroachments on public and municipal lands, this Court directed the Municipal Corporation, Ludhiana to apply for vacation of injunction orders in all the pending cases. A further direction was issued to the District & Sessions Judge, Ludhiana to ensure that applications for C.W.P. No.4886 of 2003 -: 3 :- vacation of injunction orders are heard and decided by the concerned courts within a period of six weeks. [4]. Vide a subsequent order dated 10.2.2004, the State Govt. was restrained from regularizing unauthorized encroachments and constructions made in the municipal area of Ludhiana. Thereafter, on 19.2.2004, the said restraint order was expanded qua all the municipal areas in the State of Punjab with a further direction to the Commissioners/Chief Executives/Executive Officers and Secretaries of all Municipal Corporations, Municipal Councils, Municipal Committees and Nagar Panchayats to ensure that no body is allowed to make encroachments on all public lands including those falling in the municipal areas. [5]. Meanwhile, the Municipal Corporation, Ludhiana filed a status report dated 19.5.2005 informing that there were 108 cases of encroachments on land measuring 400 square yards and above and in all, land measuring 2,42,363.14 square yards was under unauthorized possession. It was further reported that 22 encroachments involving land measuring 1,16,817.74 square yards had been made by the Government institutions, such as civil hospitals/dispensaries/police stations, etc. [6]. On 20.5.2005, the scope of these proceedings was further enlarged as status report in relation to encroachments on public lands in other Districts of Punjab was also sought. On 25.8.2005, Municipal Corporation, Ludhiana informed this Court that 68 big encroachments had since been removed and land measuring more than 1 lac square yards stood retrieved. It was further informed that lawful action had already been taken against the remaining encroachers. As regards the areas falling within the C.W.P. No.4886 of 2003 -: 4 :- municipalities of Jalandhar, Amritsar, Bhatinda and Patiala, the State Government sought and was granted time to file their status reports. On 23.5.2006, status reports were filed by the Municipal Corporations, Ludhiana, Amritsar and Jalandhar, followed by the status reports of Ludhiana and Patiala on 12.9.2006. Needless to say that the object of obtaining periodical status reports was to keep the authorities hammered to ensure that all the encroachments were removed from the government/public lands in possession of unauthorized occupants. Somewhat similar directions were reiterated by this Court vide order dated 18.12.2006. [7]. Laying emphasis on the fact that planned development with sufficient green space, parking etc. go a long way in making way for a decent living which further gives substance and meaning to right to life and liberty in terms of the mandate contained in Article 21 of the Constitution, this Court vide order dated 30.10.2007 directed the Municipal Corporation, Bhatinda to file a detailed affidavit with regard to the encroachment cases pending in the local courts. Similarly, the fact that Municipal Corporation, Patiala had removed encroachments from an area measuring 33,510 sq. yards out of the total encroached area of 41,520 sq. yards was taken cognizance of and a learned Senior Counsel of this Court was requested to visit Patiala and carry out an inspection of the city to find out the extent of encroachments on the government or municipal lands, if any. The Court Commissioner was requested to meet the NGOs or other organizations to find out the extent of encroachments by the individuals. [8]. However, on a consideration of the various status reports filed C.W.P. No.4886 of 2003 -: 5 :- by the Municipal Corporations of Ludhiana, Patiala, Amritsar and Bhatinda from time to time, this Court noticed some inherent contradictions in the explanations rendered by the Municipal Corporations on removal of encroachments and/or treating even those persons as encroachers who had bona fide sale-deeds in their favour and raised construction after getting the building plan sanctioned from the competent authority. Similarly, non- finalization of a comprehensive scheme for the development of Amritsar was also viewed seriously. As regards Patiala, this Court took exception to the fact that as per the report of the Court Commissioner, certain Councillors had themselves encroached upon the roads and have filed cases in civil courts. As regards Bhatinda, it was noticed that in various cases of encroachments of public streets, parks and roads, the subordinate courts had granted injunction orders. The directions were, therefore, issued to Municipal Corporation, Patiala to file a proper affidavit, to Municipal Corporation, Amritsar to submit the comprehensive scheme for development, and to Municipal Corporation, Patiala to submit the details of the court cases and their status with a direction to the subordinate courts at Bhatinda to dispose of the cases of encroachments pending before such courts. On 27.2.2008, the Municipal Corporation, Ludhiana was reminded of the fact that either there should be a policy under which the government institutions/schools, etc. could be raised on a public land by encroachment or the municipal authorities should act within the parameters of law. [9]. We have heard at some length Counsel for the Municipal Corporations, learned Additional Advocate General, Punjab as well as counsel for the interveners and perused the latest status reports filed by the C.W.P. No.4886 of 2003 -: 6 :- four Municipal Corporations. [10]. Though it appears that under the directions issued by this Court from time to time, as noticed above, the municipal authorities have taken some compulsive steps to retrieve the government or municipal lands from the encroachers and except in the case of educational/religious/public institutions and/or of those individuals where the civil courts have either passed a decree or granted injunction, rest of the encroachments have been substantially removed. It, however, does not absolve the municipal authorities from keeping a vigil and introducing and effective enforcement and monitoring mechanism to prevent future recurrences and tackle to this perennial problem. It is a sad state of affair that what the municipal authorities ought to have done on their own, had to be reminded by this Court through these suo moto proceedings. It would, thus, be too presumptuous and far from ground realities to accept that no further action is required to be taken in the matter or that the municipal areas concerned are now free from any encroachments. [11]. While, we are not inclined to continue monitoring the enforcement activities of the Corporations indefinitely, their persistent inaction in the past, warrants suitable directions to the authorities of the Municipal Corporations and the State Government, to ensure that the ongoing process of removal of encroachments is taken to its logical conclusion and no one is allowed to grab the public properties in future also with or without the connivance of the authorities concerned. We accordingly dispose of this writ petition with the following directions:- (i) the State of Punjab is directed to take a conscious C.W.P. No.4886 of 2003 -: 7 :- policy decision, in accordance with law for removal and/or regularization of the encroachments, if any, made on the public lands by the government's Educational Institutes, Hospitals, Dispensaries, Police Stations, etc. keeping in view the fact that such institutions are not to be placed at the same pedestal as a private individual encroacher; (ii) the directions issued by this Court on 10.2.2004 restraining the State Government from regularizing unauthorized encroachments and constructions, provided that such encroachments are other than by the government or public institutions, are made absolute; (iii) the civil courts before whom the cases pertaining to encroachments made within the areas of Municipal Corporations, Ludhiana, Bhatinda and Patiala are pending, are directed to expedite the disposal of those cases preferably within two years of their institution; (iv) the Municipal Corporations are directed that encroachments from all those public properties except falling within the direction No.(i) above and/or wherever the civil court has decided the matter in favour of the private individuals, shall be removed and the lands will be retrieved forthwith but not later than six months from today; (v) the Municipal Corporations are further directed to C.W.P. No.4886 of 2003 -: 8 :- constitute and notify the Enforcement and Monitoring Committees for one or more areas which shall periodically report to the Municipal Commissioner regarding the status of the encroachments, if any, their taking place or being removed within the area. Necessary and prompt action shall be taken by the Municipal authorities to nip it in the bud; (vi) the Municipal Corporations shall forthwith locate the encroachment prone areas and take all necessary safeguards/preventive measures against possible trespass/encroachments, viz., erecting barbed-wire fencing, displaying notice-boards containing statutory warning, etc., and make the Encroachment and Monitoring Committee of the respective area accountable for any lapse or inaction on its part; (vii) the Municipal Corporations shall also evolve public participation in their anti-encroachment drive by constituting Vigilance Committees of the NGOs/citizens who may volunteer to inform the municipal authorities including the Enforcement and Monitoring Committees regarding any fresh encroachments so that the desired action in terms of direction No.(v) above can be taken without any delay; (viii) if a public spirited person notices that any encroachment is not being removed and/or being C.W.P. No.4886 of 2003 -: 9 :- allowed to take place in connivance with the employees, authorities or councillors of the Municipal Corporation, he/she shall be at liberty to institute contempt of court proceedings against such person and/or Municipal authorities for their act of willful and deliberate disobedience of the directions issued hereinabove. [12]. No costs. [ Surya Kant ] Judge October 4, 2008. [T.S. Thakur] kadyan Chief Justice