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Uttarakhand High Court · body

2013 DIGILAW 60 (UTT)

DINESH BHARDWAJ v. STATE OF UTTARAKHAND

2013-02-26

Alok Singh, Barin Ghosh

body2013
JUDGMENT BARIN GHOSH, C. J. (Oral) In this Public Interest Litigation, petitioner has highlighted the fact that respondent No. 2, Haridwar Development Authority, has identified that certain unauthorised constructions have been made and all those constructions are without any sanction and that such constructions are within 200 meters from the banks of river Ganges and also that the people responsible for making those constructions were given opportunity of hearing and, after hearing them, orders were passed for demolition of those unauthorised constructions, but, Haridwar Development Authority could not execute its orders because people of the locality resisted Haridwar Development Authority to carry out demolition. In the circumstances, the public interest litigant has projected that, despite unauthorised constructions having been made within 200 meters from the banks of river Ganges, those having been identified and the people having been given opportunity to justify their stand regarding those illegal constructions and they having not been able to justify the same; Haridwar Development Authority is unable to discharge its public function of demolishing those illegal constructions because those who have made illegal constructions, with their muscle power, are preventing Haridwar Development Authority to discharge its public obligations. Each of those people, responsible for making illegal constructions, has been made a party to the writ petition. 2. Smt. Anjana Goyal, respondent No. 8, is not represented by any lawyer. She has been served, but has not filed any counter affidavit. Same is the case insofar as respondent Nos. 9 and 10 are concerned. 3. Mahendra Singh, respondent No. 11, is represented by Mr. Lok Pal Singh, Advocate. The learned counsel is present in Court and has fairly submitted that the construction, in question, was being made without sanction. On our query, he fairly contended that, before the construction was started, no application for obtaining sanction was submitted. There is no dispute that the construction is within 200 meters from the banks of river Ganges and that such construction commenced subsequent to 31st July, 2000, i.e. the date when the Government issued a Notice pursuant to the directions issued by the Hon’ble Allahabad High Court that no construction shall be permitted within 200 meters from the banks of river Ganges. 4. Respondent No. 12 is Mr. C.S. Sharma (C.M. Sharma). He is represented by Mr. R.K. Raizada, Advocate. 4. Respondent No. 12 is Mr. C.S. Sharma (C.M. Sharma). He is represented by Mr. R.K. Raizada, Advocate. The learned counsel is present in Court and has submitted that the construction, in the instant case, has been carried out, may be within 200 meters from the banks of river Song, but not within 200 meters from the banks of river Ganges, inasmuch as, the area of construction is situate about 12 kms. away from river Ganges. In the notice issued to C.S. Sharma by Haridwar Development Authority dated 3rd November, 2008, it has been stated that the impugned construction by C.S. Sharma is within 200 meters from the banks of river Ganges. There is, therefore, a dispute as to whether the construction, in question, commenced by C.S. Sharma, is situate within 200 meters from the banks of river Ganges or not. 5. Ajay, respondent No. 13, is represented by Mr. Sharad Sharma, Senior Advocate. The learned counsel is present in Court. It has been submitted on behalf of respondent No. 13 that the plot, in question, where the construction has been made, is only 52 sq. meters in area and, according to a Government Notification, no sanction is required for making construction thereon. It has been submitted that the number of the said Notification is 1614 dated 1st May, 1997. No such Notification, however, could be produced. It is evident from the order dated 28th October, 2009 passed by Haridwar Development Authority in relation to Shri Ajay, that the property, in question, is situate within the jurisdiction of Haridwar Development Authority, which fact has been disputed in the counter affidavit filed by Ajay. The fact, however, remains that Ajay has not been able to produce any sanction to construct. According to Ajay, he purchased the property some time in 2008 from the erstwhile owner of the property. According to Ajay, at the time of purchasing the property, the construction had already been made. It is the contention of Ajay that the property was constructed, as will be evident, much prior to 2000, i.e. before the date of publication of the notice. 6. Smt. Geeta Devi, respondent No. 14, is represented by Mr. K.N. Joshi, Advocate. The learned counsel is present in Court. It is not in dispute that the construction, in question, commenced after 2000 and without any sanction. 6. Smt. Geeta Devi, respondent No. 14, is represented by Mr. K.N. Joshi, Advocate. The learned counsel is present in Court. It is not in dispute that the construction, in question, commenced after 2000 and without any sanction. Respondent No. 14, however, is contending that the impugned construction is beyond 200 meters from the banks of river Ganges. 7. Gajendra Nagar, respondent No. 15, is though represented by Mr. Sharad Sharma, Senior Advocate, who is present in Court, but he has not filed any counter affidavit. Time to file counter affidavit by respondent No. 15 has expired long time back. 8. We think, it would be appropriate on the part of respondent No. 2 to ascertain, whether the construction being made by respondent No. 12, C.S. Sharma, is situate on the banks of river Song or on the banks of river Ganges. In the event, it is found that the unauthorised construction is not within 200 meters from the banks of river Ganges, but has been constructed without sanction, or on a plot not belonging to C.S. Sharma, it shall be open to respondent No. 2 to take such steps as it may be advised in accordance with law. However, in the event, it is found that the said construction is within 200 meters from the banks of river Ganges, respondent No. 2 is directed to forthwith remove the said construction. 9. Respondent No. 2 is directed to ascertain, by such scientific method as it may be advised, the age of construction of the property in possession of respondent No. 13, Ajay. In the event, it transpires that the said property was constructed prior to 2000, respondent No. 2 may take such action in respect thereof as it may be advised, but not on the ground that the construction has been made within 200 meters from the banks of river Ganges. 10. Respondent No. 2 is directed also to ascertain whether the property constructed by respondent No. 14 is situate within 200 meters from the banks of river Ganges. In the event, it transpires that the same is situate within 200 meters from the banks of river Ganges, respondent No. 2 is directed to remove the same. 10. Respondent No. 2 is directed also to ascertain whether the property constructed by respondent No. 14 is situate within 200 meters from the banks of river Ganges. In the event, it transpires that the same is situate within 200 meters from the banks of river Ganges, respondent No. 2 is directed to remove the same. In the event, it transpires that the same is not within 200 meters from the banks of river Ganges, it may take such steps as it may be advised, for the construction appears to be without any sanction. 11. The construction made, or alleged to have been made, by respondent No. 15 within 200 meters from the banks of river Ganges, as asserted by respondent No. 2 and not denied by respondent No. 15, must be removed by respondent No. 2. 5 12. Respondent No. 2 is directed to approach the concerned District Magistrates as well as the concerned Senior Superintendents of Police for the purpose of obtaining appropriate assistance for the purpose of demolition of the illegal constructions. 13. There is a serious allegation by respondent Nos. 13 and 14 that the petitioner, in the name of Public Interest Litigation, is indulging in activities, which require investigation, as he is trying to extract money from gullible people on the threat of public interest litigations. The threat of extortion, meted out by the petitioner, as alleged by respondent Nos. 13 and 14, be investigated by the Senior Superintendent of Police, Haridwar. 14. It is made clear that, although we have dealt specifically with the illegal constructions said to have been made by the private respondents herein, but respondent No. 2 is directed to ensure that any construction made on the banks of river Ganges subsequent to 2000 is removed. The concerned District Magistrates and Senior Superintendents of Police are directed to render all necessary help to respondent No. 2 to carry out such demolitions. 15. The writ petition is disposed of accordingly.