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Madhya Pradesh High Court · body

2011 DIGILAW 348 (MP)

Sunil Kumar v. State of M. P.

2011-03-15

BRIJ KISHORE DUBE, S.K.GANGELE

body2011
ORDER 1. These two petitions, Writ Petition No. 1629/11, Sunil Kumar v. State of M.P. and others and Writ Petition No. 1630/11, Baldev Singh Bhadoria v. State of M.P. and others, have been registered on the basis of letters sent to Hon'ble the Chief Justice. In Writ Petition No. 1629/11 the letter has been written by one Mr. Sunil Kumar resident of Hanuman Chouraha, Gwalior and in Writ Petition No. 1630/11 the letter has been written by one Baldev Singh Bhadoria, resident of Sewa Nagar, Gwalior. Hence, both the writ petitions have been registered as letter petitions and have been tre(sic)ated as Public Interest Litigation. 2. A notice was handed over to the Additional Advocate General, Gwalior and on behalf of the State, I.A. No. 1748/11, an application for taking certain facts on record has been filed. 3. In the present matter number of applications for intervention have also been filed. In all the intervention applications and the letter petitions the petitioners have complained in regard to demolition of their houses and properties. The petitioners and interveners have further submitted that they are owner of their properties and under anti-encroachment drive without issuing notice or giving any opportunity of hearing the State Administration and the Municipal Corporation have marked their buildings/properties in red colour and directed them to remove certain portions of their buildings/properties. 4. Number of Senior Advocates and other Advocates appeared on behalf of Bar before the Court and submitted that the District Administration and the Municipal Corporation, Gwalior have undertaken a drive to remove certain constructions. Some valid constructions have also been ordered to be removed and before doing so, no notices have been served to the affected persons nor they have been given any opportunity of hearing. It has further been submitted that the action of the respondents is against the provisions of M.P. Municipal Corporation Act and also against the provisions of law. The property of the citizens cannot be taken away without due process of law. 5. The District Administration and Municipal Corporation, Gwalior, both have filed an application, I.A. No. 1748/11, for taking certain facts on record. It has been submitted by the respondents that earlier one Neelesh Tomar filed a writ petition before this Court, which was registered as Writ Petition No. 995/2011 (PIL) and it was disposed of with the following directions : 8. The District Administration and Municipal Corporation, Gwalior, both have filed an application, I.A. No. 1748/11, for taking certain facts on record. It has been submitted by the respondents that earlier one Neelesh Tomar filed a writ petition before this Court, which was registered as Writ Petition No. 995/2011 (PIL) and it was disposed of with the following directions : 8. Looking to the aforesaid facts of the case, in our opinion, the present Public Interest Litigation of the petitioner could not been entertained. The learned Additional Advocate General has already submitted before this Court that if there is any genuine grievance to a person who is being affected by the Anti-Encroachment Drive, he can submit a representation to the Commissioner, Municipal. Corporation, Gwalior or the Collector, Gwalior. The Municipal Corporation Gwalior or District Administration are duty bound to remove illegal encroachment at Gwalior city. However, the claim of genuine owner of the property or legal construction could not be removed without following due process of law. 6. In another Writ Petition No. 5609/2010 (Mahila Shanti Sena Greater Gwalior v. State of M.P. and others) is pending before this Court and the Division Bench has passed the following order in the aforesaid writ petition: One letter dated 26.7.2010, was received by the Administrative Judge in this Bench and accordingly the matter was referred to the Principal Seat along with newspaper cutting in respect to havoc condition of the traffic in Gwalior. By the order of Hon'ble the Chief Justice, the matter has been registered as PIL. In this view of the matter, we hereby direct that notice be issued to Mahila Shanti Sena, Gwalior Kasturba Gandhi Vishranti Bhawan, Nyas, Kampoo, Gwalior, or hearing of this petition. This Court on 27.9.2010, gave direction to the Registry to mention the name of Shri Padam Singh, Advocate, as amicus curiae, but in the daily cause list, name of Shri Padam Singh is not appearing. Principal Registrar is hereby directed to seek explanation from the erring employee and place it in chambers why name of Shri Padam Singh, Advocate has not been mentioned in the daily cause list. Today in Court, Shri Manohar Verma, Additional S.P. as well as Shri Anand Rawat, Deputy S.P are present. Shri Verma submits that the traffic problem in the city consists of three parts; firstly traffic education, secondly traffic engineering and lastly the enforcement. Today in Court, Shri Manohar Verma, Additional S.P. as well as Shri Anand Rawat, Deputy S.P are present. Shri Verma submits that the traffic problem in the city consists of three parts; firstly traffic education, secondly traffic engineering and lastly the enforcement. Looking to the pressure of vehicles as well as poor traffic condition, we constitute a committee, headed by the Revenue Commissioner and the Transport Commissioner; Collector, I.G., Gwalior Range, Commissioner Municipal Corporation, Additional District Magistrate, Superintendent of Police, Additional Superintendent of Police (Traffic), Chief Engineer, PWD, Chief Engineer, PHE, Chief Engineer, MPSEB and General Manager (Telephones) shall be its members. Let a meeting of this committee be convened within a period of two weeks from today and the suggestions may be provided in writing to this Court including the minutes of the meeting. Needless to say that the said Committee shall give right to life enshrined in Article 21 of the Constitution of India to be supreme consideration by totally ignoring the inconvenience of the citizens so that accidents may be checked. Necessary suggestions be also given to provide alternative mass transport vehicles which will be plied within the municipal limits of Gwalior city instead of mass transport vehicles which are being plied presently except Tata Magic and Maruti Omni vehicles. Suggestions in respect of parking, flyovers and bye-pass be also made by keeping the mandate guaranteed to the citizens under Article 21 of the Constitution of India by ignoring the inconvenience howsoever it may be. Let report be submitted within four weeks. 7. In another Writ Petition No. 625/2002, Haridas Gupta v. State of M.P. and others, the Court has passed the following order: This Public Interest Litigation is filed by the petitioner bringing to the notice of the Court the sorry state of affairs prevailing in and around the circulating area of Maharaj Bada and the Maharaj Bada itself, which are main business centers of the city. It is submitted that as many as six roads join the Maharaj Bada, due to which there remains heavy traffic in the area. However, the flow of said traffic is often obstructed by public meeting of politicians or other public functions, resulting into great hardships to the public at large. It is submitted that as many as six roads join the Maharaj Bada, due to which there remains heavy traffic in the area. However, the flow of said traffic is often obstructed by public meeting of politicians or other public functions, resulting into great hardships to the public at large. The next grievance of the petitioner is that there are number of electricity and telephone polls on the road itself which are not only causing obstruction in the traffic but are hazardous to the public safety as well. It is also brought to the notice of this Court that the mainholes on the roads are not at the level of the ground due to which the surface of the roads is not smooth and safe for the vehicles." It is submitted that despite the orders passed by this Court in the case of M.M. Kaushik v. State of Madhya Pradesh and others [2008 (2) JLJ 14], those directions are not carried out. Encroachments which were removed by the Municipal Corporation have again come into existence and the persons who are removed have again established their shops on the footpath. It is also alleged that large number of handcarts remain there throughout 24 hours and no action is taken by the police authorities or the traffic authorities. It is next submitted that number of persons have constructed their stairs/ramps on the footpath of the roads. It is also alleged by the petitioner that the drains in the area are also not in proper condition and they are not repaired for years together. Hence, the petitioner prays that proper directions be issued to the authorities. Having heard the parties, we find that there is no dispute about the factual situation. Even counsel for the Electricity Board and Telephone Department could not dispute that their poles are on the roads. According to them, those poles can be removed only if the Municipal Corporation makes arrangements for the funds. The question of finance can be considered even at subsequent stage. We also find that there are already orders of this Court dated 22.1.2008, that the Electricity Board should first remove the poles and then may raise demand from the Municipal Corporation towards the expenditure. However, still, no action is taken by the officers of the Electricity Board. Similar is the situation with the Telephone Department. We also find that there are already orders of this Court dated 22.1.2008, that the Electricity Board should first remove the poles and then may raise demand from the Municipal Corporation towards the expenditure. However, still, no action is taken by the officers of the Electricity Board. Similar is the situation with the Telephone Department. There is also no dispute that the persons who were removed in encroachment drive in the light of the orders passed by this Court in the case of MM. Kaushik (supra), have again encroached upon the streets and footpath and doing their business. In such circumstances, we direct: (1) The authorities of the State Government and the Municipal Corporation, Gwalior should strictly follow the directions issued by this Court in the case of MM. Kaushik (supra), within a month from today. (2) The Municipal Corporation, Gwalior shall level all the manholes in the area and bring it to the level of the roads within a month from today. (3) Superintendent of Police, Gwalior and Superintendent of Police (Traffic) Gwalior should see that appropriate help is provided to the Municipal Corporation in removal of encroachment. We also direct them to see that there shall not be any encroachment in the area and if any encroachment is found, then hold the concerning Traffic-in-Charge and the Station Officer of the concerning police station responsible for the same. The Ward Officers of the concerning wards shall also be held personally responsible if they do not report about the encroachment in future. The Municipal Corporation shall also see that there is no traffic congestion due to the encroachments or any other reason whatsoever. (4) The Municipal Corporation shall also remove all the structures including the stairs and ramps which are constructed on the footpath of the roads within one month from today. (5) The Municipal Corporation shall also take steps for repairs of drains and maintain good quality of roads in the area. (6) The Municipal Magistrate appointed at Gwalior shall also look into the matter and visit the circulating area of Maharaj Bada and Maharaj Bada at least once a week. If he finds any encroachment, he may take legal action against the same. (6) The Municipal Magistrate appointed at Gwalior shall also look into the matter and visit the circulating area of Maharaj Bada and Maharaj Bada at least once a week. If he finds any encroachment, he may take legal action against the same. (7) If there is any obstruction by any political person against removal of encroachments, then the Municipal Magistrate and the authorities of the State Government and Municipal Corporation shall take appropriate legal steps against such political persons. (8) The Electricity Board and the Department of Telecommunication shall positively remove their poles which are either on the roads or creating obstruction in the free flow of traffic within a period of one month from today. Compliance report be positively filed by the respondents within one month from today. If this Court finds that directions issued by this Court in the present case as also in the case of MM. Kaushik (supra), are not being followed by the authorities, then they shall be liable for contempt of this Court. List the petition on 11th of August, 2009. 8. Looking to the afore quoted orders passed by this Court, the Municipal Corporation with the help of District Administration initiated anti-encroachment drive in order to remove encroachment over the roads of the Corporation for free flow of traffic in Gwalior city. Thereafter, the authorities have conducted a joint survey with the help of Nazul Department and decided that the encroached portions of the houses/ properties be marked with red colour and arrow on the buildings/properties. The owners of those buildings/properties were directed to remove the encroachment of their own or on failure to do so, the Corporation would follow process of removal of encroachment in accordance with the provisions of the M.P. Municipal Corporation Act, 1956. Thereafter, the Corporation used to issue notices on the affected persons/owners. 9. The District Collector passed an order on 3.3.2011, copy of which has been filed as Annexure A-2. By the aforesaid order, the Collector has held that the width of the roads shall be in accordance with the Map of Bandobust of the year 1940 and on the basis of the aforesaid order the encroachment shall be decided and a Committee has also been constituted consisting of Mr. Sharad Shroti, Joint Collector and Nazul Officer and Mr. Vishnu Khare, City-Planner to consider the representations of the affected persons and to pass appropriate order. Sharad Shroti, Joint Collector and Nazul Officer and Mr. Vishnu Khare, City-Planner to consider the representations of the affected persons and to pass appropriate order. It has further been mentioned in the order that the old buildings and heritage buildings have also to be taken note of. 10. It is further submitted that the survey of particular roads was conducted by the Commissioner, Gwalior, Collector, Gwalior and the Municipal Authorities with the help of Nazul Officers and have decided to remove encroachment considering the width and size of the roads. It has further been submitted that there is encroachment over the Government land and that has also been decided to be removed. The petitioners and intervenors have specifically stated that the Administration has decided to widen only one road from Scout to Darji Oli via Pichhadi Dyodi to Khasagi Bazar road and for that purpose a proposal has been sent to the State Government for sanction of budget. 11. Learned Additional Advocate General has argued the matter at length and submitted that master plan of Gwalior city for the year 2005 is still in force because current master plan has not come into force and it will take near about two or three months. He further submitted that only 40 persons have filed objections before the Committee constituted by the Collector and near about 45 persons have filed writ petitions before this Court and if there is any genuine grievance to any person, the Administration is willing to consider his/her case. Learned Additional Advocate General specifically denied the fact that the Administration has demolished the legal and valid constructions. He has contended that the Administration has only removed encroachment and the matter has already been decided in earlier writ petition filed by Neelesh Tomar. He further submitted that up till now the authorities have removed about 500 encroachments. 12. Looking to the gravity of the problem, in our opinion, it would not be appropriate to decide both these petitions finally at this stage. However, it would be appropriate to issue some interim directions in the matter. He further submitted that up till now the authorities have removed about 500 encroachments. 12. Looking to the gravity of the problem, in our opinion, it would not be appropriate to decide both these petitions finally at this stage. However, it would be appropriate to issue some interim directions in the matter. Hence, without finally deciding the controversy in both the petitions and looking to the magnitude of the problem that a large section of the residents of Gwalior city have been affected, in our opinion, it would be just and proper that the Administration and the Municipal Corporation shall issue certain public notification or information in regard to removal of encroachment or action which is going to be taken by the authorities for removal of encroachment for widening of roads. Therefore, at least an information mentioning the particular place and area where the District Administration or Municipal Corporation has decided to remove the encroachment mentioning the exact width of the road or the public place be published in at least two daily newspapers, namely Dainik Bhaskar Gwalior Edition and Nai Duniya Gwalior Edition or any other newspaper having wider circulation, 7 days before the action, so that the people who are going to be affected by the aforesaid action of the Authorities, can get information in advance about the action of the District Administration or the Municipal Corporation and they can submit their objections before the Committee which has been constituted by the Collector vide order dated 3.3.2011, Annexure A-2, or they may take any legal recourse available to them under the law. 13. It is hereby clarified that this Court has not opined about the merits of the controversy involved in these petitions. It is further clarified that this Court has not diluted any order/orders, which have been passed in earlier writ petitions, pending or decided by this Court in regard to removal of encroachment. It is further clarified that Municipal Corporation or the District Authorities are at liberty or duty bound to remove the encroachment, however, looking to the large scale encroachment drive undertaken by the authorities, it would be just and proper that the details of the proposed action be published in the daily newspapers, as mentioned above. 14. It is further clarified that Municipal Corporation or the District Authorities are at liberty or duty bound to remove the encroachment, however, looking to the large scale encroachment drive undertaken by the authorities, it would be just and proper that the details of the proposed action be published in the daily newspapers, as mentioned above. 14. This Court further hopes that the District Administration or the Municipal Corporation shall not remove any construction which is valid and legal in law, without taking recourse of due process of law. List the case on 18th April, 2011.