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2012 DIGILAW 607 (HP)

Dharam Pal v. State of H. P.

2012-09-20

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT Deepak Gupta, J. 1. These two writ petitions are being disposed of by a common judgment since identical questions of law and fact are involved in the same. 2. To appreciate the dispute raised in these petitions, it would be pertinent to mention that one Sh.Brijender Singh Parmar had filed a writ petition in this Court praying that the construction raised by respondents No.4&5 in the said writ petition be declared to be illegal since the same had been raised without any permission from the municipal authorities. On 24.6.2009 this Court passed the following directions in the aforesaid case: “While disposing of CWP No. 2289 of 2007, this Court had noticed that there was rampant violation of the Himachal Pradesh Municipal Act, 1994 (hereinafter referred to as the Act) in the town of Mandi. It was found that illegal, unauthorized construction was going on in a large scale in Mandi town. We had, therefore, issued the following directions:- “Keeping in view the facts brought to our notice during the hearing of the petition, we direct the Municipal Committee, Mandi, to place before us the records of all buildings/constructions which have been raised without or in violation of the sanctioned plan. The Executive Officer of the Committee shall file his personal affidavit, giving details of all cases wherein such construction have been noticed by the Municipal Committee. The action, if any, taken and whether any demolition has been conducted pursuant to demolition orders shall also be reflected in the affidavit. This affidavit be filed within eight weeks from today. List on February 26, 2009.” Affidavit was filed by the Executive Officer, Mandi, in which it was averred that the Municipal Council itself was aware of 294 cases of unauthorized construction in the town of Mandi. Out of these, 56 cases of unauthorized construction related to construction on Government/Municipal land. Demolition had taken place in six cases and out of the remaining 288 cases, notices under Section 211 of the Act had been issued only in four cases. On perusal of this affidavit, this Court had passed a detailed order on 2.3.2009, relevant portion of which reads as follows:- “This clearly shows that the officials of the Municipal Council, Mandi, are either incompetent or not aware of the duties which they are to perform or they are hand in glove with the persons who are raising illegal constructions. On perusal of this affidavit, this Court had passed a detailed order on 2.3.2009, relevant portion of which reads as follows:- “This clearly shows that the officials of the Municipal Council, Mandi, are either incompetent or not aware of the duties which they are to perform or they are hand in glove with the persons who are raising illegal constructions. There can be no third eventuality. This Court cannot countenance such a situation where administrative bodies fail to protect government land which is public property. Keeping in view the seriousness of the issue, we direct the President as well as the Executive Officer of the Municipal Council, Mandi to be present on the next date. The State Government has the power to supersede a Municipal Council which fails to perform its duties in terms of Section 271 of the H.P.Municipal Committee Act. This may be a fit case where such action may be required. We, therefore, also direct the Secretary, Local Self Government to be present in Court on the next date. List the matter on 6th April, 2009.” 3. This Court in the said petition found that the Municipal Council was not performing its duties and was trying to protect illegal constructions raised by many persons in total violation of the law. Finally, this Court had appointed Sh.B.R. Kaundal as Commissioner to demarcate 57 cases of encroachments made by different persons. He in his report informed this Court that only 51 cases were marked to him since in six other cases it was alleged that the persons had vacated the encroachments on municipal/Government land. He further found that case No.40 is also found repeated at Sr.No.50. In two cases the encroachers vacated the encroachments during the process of demarcation. Therefore, he submitted his demarcation report in respect of 47 cases. 4. Sh.Kaundal in his report also reported that during the course of demarcation he found that there are many other cases of encroachment in Mandi Town but the same had not been reported by Municipal Council to the High Court. We had thereafter called upon the Committee to file fresh status report. 5. As far as the present petitions are concerned they have been filed by the persons who were admittedly encroachers of the municipal/Government land. They have raised construction without getting any plan sanctioned, on land which is not owned by them. We had thereafter called upon the Committee to file fresh status report. 5. As far as the present petitions are concerned they have been filed by the persons who were admittedly encroachers of the municipal/Government land. They have raised construction without getting any plan sanctioned, on land which is not owned by them. The fact that the petitioners in both the writ petitions are encroachers is admitted by them. Their main prayers in the writ petitions are that a writ of certiorari may be issued and the action being taken against the petitioners be held to be invalid and may be set-aside on the ground that the cases for removal of encroachment are pending before the Tehsildar under the provisions of Section 163 of the H.P. Land Revenue Act. It is also prayed that a writ in the nature of Mandamus be granted directing the Municipal Council to compromise the matter by selling/leasing the land to the encroachers. It is stated that the petitioners are willing to pay the market value of the land. 6. Various other issues have been raised and it has also been alleged that whereas action has been taken against the petitioners, no action has been taken against other persons who have also encroached upon the Government land. As far as the last objection is concerned, we are passing separate directions in this behalf in CWP No.2289 of 2007. However, the mere fact that action has not been taken against some persons does not mean that no action should be taken against the persons who are admittedly encroachers and have encroached upon the land either belonging to the State of Himachal Pradesh or to the Municipal Council, Mandi. How, can such persons be even heard to urge that the Government/Municipal Council should be compelled to sell or lease out the land to them. 7. In the present case, the petitioners have admittedly encroached upon the Municipal land. Sh.R.L. Chaudhary, has placed reliance on the judgment of the Apex Court in Civil Appeal Nos.281-282 of 2012 titled as Collector, District Gwalior and another vs. Cine Exhibitors P. Ltd. and another. The land, whether it is recorded in the name of the Municipal council or of the State Government belongs to the public. The State or the Committee holds the land in trust for the public at large. This land does not belong to a private individual. The land, whether it is recorded in the name of the Municipal council or of the State Government belongs to the public. The State or the Committee holds the land in trust for the public at large. This land does not belong to a private individual. The State cannot deal with this land in any manner it feels like. 8. It would be apt to refer to the decision of the Apex Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and others, AIR 2011 SC 1834 . Though the main question in the case was whether the State could allot land to an Organization which carries a tag of caste community or religion. Some observations of the Apex Court are extremely relevant which are as follows: “31. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory or non-arbitrary method irrespective of the class or category of persons proposed to be benefitted by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State. 32. xxxxxx 33. xxxxx 34………………. The allotment of land to such bodies/organisations/institutions on political considerations or by way of favoritism or nepotism or with a view to nurture the vote bank for future is constitutionally impermissible.” (emphasis supplied) 9. The Rule of Law is fundamental to our democratic and judicial system. If law is allowed to be violated with impunity then it will lead to anarchy. Nobody can be permitted to take the law into their own hands. 10. Unfortunately, the tendency is growing that if any illegal construction is raised then the same shall never be demolished. The Rule of Law is fundamental to our democratic and judicial system. If law is allowed to be violated with impunity then it will lead to anarchy. Nobody can be permitted to take the law into their own hands. 10. Unfortunately, the tendency is growing that if any illegal construction is raised then the same shall never be demolished. Most people wait for the State to come out either with a retention policy or with a policy to compound matters. The politics of vote banks is used to get these totally unauthorized constructions legalized. Though this question has not been raised specifically in these petitions and we are not answering the same, we are prima facie of the view that any policy or policies which without any cogent reasons try to legalize that which is inherently illegal and could not have been permitted may be totally unconstitutional and against the spirit of the Constitution. 11. Be that as it may, in the present case from the orders passed in CWP No.2289 of 2007, some of which have been quoted above, it is apparent that the Municipal Council Mandi was hand-in-glove with the people who had encroached upon municipal land. Encroachments were being permitted to be raised not only encroached land but also illegally on privately owned land without any permission. 12. If this country has to have a proper urban infrastructure with proper roads, markets etc. then on the one hand while there is a duty cast on the State and its authorities to frame and implant the laws and frame adequate development plans and at the same time there is a duty cast upon the citizens to obey such laws and to ensure that the construction raised by them are in accordance with the approved plants. Minor deviations may be compromised but the law of the land cannot permit totally unauthorized structures raised without any plan, or raised on property not belonging to the persons raising construction to be regularized. Therefore, the request of the petitioners that the respondent State or the Municipal Council be directed to sell/lease out the land to them is totally mis-conceived and cannot be allowed. 13. People raise constructions and more often than not such constructions are raised in such a manner that no set-backs are left and construction is raised till the edge of the plot. 13. People raise constructions and more often than not such constructions are raised in such a manner that no set-backs are left and construction is raised till the edge of the plot. No place for parking is left and when pipes for sewerage, water etc have to be taken then as a matter of right it is claimed that they can go through municipal/Government land. The steps and entrances are constructed on the edge of the public roads. The vehicles of these persons like the petitioners are parked on the road leaving no access to the general public. These persons who encroach upon Government land and raise illegal structures cannot be permitted to seek equity on the ground that loss will be caused to them because these persons were oblivious to the rights of the others in such lands and a person who does not do equity to others cannot claim equity under law. 14. Another contention raised by Sh.R.L. Chaudhary, relying upon the judgment of the Apex Court in Collector District Gwalior’s case (supra), is that the State should be asked to compromise the matter with the petitioners. In fact the Apex Court in the aforesaid case specifically held that the State Government and its functionaries were at liberty to proceed against the allottee of the land for its eviction. The Apex Court had also ordered that the allottee could take recourse to the arbitration clause under GDA for any other relief. Obviously, the relief for which the allottee could invoke arbitration clause was not the relief of eviction but some other relief. 15.It is contended that the land in question is a ‘Nazul land’ which is defined as follows: “‘Nazul land’ means Government land situated within the area of a Municipality, land vested in or in possession of municipality must therefore be either (a) nazul or (b) acquired by purchase. The presumption is that the land is nazul unless it can be shown that it has been acquired by purchase. Note:- It cannot be presumed that a public street is nazul in the absence of evidence in the nazul register or other revenue record or of any other documentary proof. If the question arises whether a public street is nazul or not each case shall be considered on the merits, and in accordance with the evidence.” 16. Note:- It cannot be presumed that a public street is nazul in the absence of evidence in the nazul register or other revenue record or of any other documentary proof. If the question arises whether a public street is nazul or not each case shall be considered on the merits, and in accordance with the evidence.” 16. In the present case, it is not clear whether the land is a ‘Nazul land’ or not. According to the respondents, land which has been encroached upon has not vested in the municipality. No Nazul register has been placed before us and in cases where the encroachments have been removed on the directions of the Court as in the present case we are clearly of the view that it would be highly improper for the Sate to compromise the matter. 17. We are clearly of the view that the land in question is not the ‘Nazul land’ and we are also firmly of the opinion that Rules relied upon by the petitioners are not the rules to help the encroachers. We have reached at a stage where strict action is required against all those who flout law and grab public property with impunity. We can no longer show mis-placed sympathy to think those persons who do not blink an eyelid before grabbing public land or raising construction thereupon. Though the petitioners claim to be poor persons this apparently is not correct since they are at the same time praying that they are willing to pay the market price of the encroached land. In case the Courts keep on showing misplaced sympathy and permit the illegally raised constructions to continue then the day is not far off when every inch of public land under the control of State or authorities will be encroached upon by unscrupulous persons. 18. The petitioners, in this case, have not denied that they have encroached upon the Government land. They have raised constructions without any permission as required under the Municipal Act or the bye-laws framed thereunder. They have only come to this Court when notices have been issues to them to demolish the constructions. 19. We may also point out that in Brijender Singh’s case we were concerned mainly with unauthorized constructions. Constructions raised without any permission are unauthorized constructions. Under law, no person can raise construction on the land of any other person without his consent. 19. We may also point out that in Brijender Singh’s case we were concerned mainly with unauthorized constructions. Constructions raised without any permission are unauthorized constructions. Under law, no person can raise construction on the land of any other person without his consent. Therefore, such constructions are also illegal and not permitted under the Municipal Act or bye-laws. In these cases, we are not deciding the title of the parties but it is apparent that the constructions raised by the petitioners are totally illegal and unauthorized constructions since they are not on the land of the petitioners nor any permission of the Municipal Council was taken before raising these constructions. 20. In view of the above discussion, we find no merit in the petitions which are accordingly dismissed. We may however make it clear that while following the judgment and directions of this Court delivered in CWP No.2289 of 2007, the State shall ensure that the law is complied with and the unauthorized constructions are removed in accordance with law.