Judgment This Court is dealing in this PIL different aspects including encroachment over the public property, more particularly, different roads, water bodies and different Nalas carrying rainwater to Naini Lake. This Court on 07.08.2014 passed following order: “Mr. C. D. Bahuguna, learned senior advocate/ Head of the Committee of Advocate Commissioner, has handed over a report of Committee in the Court, which is taken on record. Mr. Subhash Upadhyay, learned Chief Standing Counsel for State of Uttarakhand, has handed over affidavit of Divisional Commissioner in the Court, which is also taken on record. Mr. Subhash Upadhyay, learned Chief Standing Counsel for the State of Uttarakhand, shall respond to the report submitted by Committee of Advocate Commissioner today in the Court, by way of affidavit to be filed by Divisional Commissioner on or before the next date fixed. Mr. Sharad Sharma, learned senior counsel with Mr. M.C. Pant, Mr. B.S. Adhikari, Mr. M.S. Chauhan, Advocates appearing on behalf of the interveners, contended that without verifying as to whether person concerned is an encroacher over a public land and without giving him opportunity to show his entitlement to remain in possession, immediately constructions are being demolished. It is further submitted that District Administration is victimizing innocent people in the garb of the order of this Court to remove encroachment from the roads and public land. We are of the considered view that public lands, roads should not be allowed to be encroached upon. In the peculiar facts and circumstances of this PIL, monitoring to remove encroachments by this court seems to be required. Therefore, we would like to clarify that if any encroachment is found on a public land, encroacher shall be given notice by the Divisional Commissioner or Zonal Magistrate appointed by him, asking the encroacher to remove the encroachment within 15 days or to show cause by way of his personal affidavit before this Court. It is further clarified that if this Court, after hearing the alleged noticee and all concerned, finds that person concerned is, in fact, an encroacher, this Court may impose heavy fine and damages against the encroacher and may issue direction for removal of the encroachment and expenses thereof shall be recovered from the encroacher. It is further clarified that if this Court, after hearing the alleged noticee and all concerned, finds that person concerned is, in fact, an encroacher, this Court may impose heavy fine and damages against the encroacher and may issue direction for removal of the encroachment and expenses thereof shall be recovered from the encroacher. It is also reported that there are small drains on the roadside and under the garb of orders passed by this Court to remove the encroachment, cemented / iron slabs, laid down on such drains to cover them in order to avoid any accident, are being removed, compelling the persons to approach the shops or houses by jumping the drains. We clarify that for the purpose of safety and to avoid accidents, temporary cemented or iron slabs can be laid down over such drains by the Municipality or District Administration, as the case may be, in such manner that cleaning of Nalas and free flow of water therein may not be obstructed. However, no commercial or any other activity thereon shall be permitted. We further clarify that other open Nalas can also be covered by temporary cemented or iron slabs by the District Administration or Municipality, as the case may be, to avoid any accident, however, no constructions or activity shall be allowed thereon. According to Mr. Subhash Upadhyay, learned CSC for State of Uttarakhand, District Administration is under utter confusion, as to whether District Administration has to report to the Committee of Advocate Commissioners before carrying out demolition drive against encroacher over the public land. In other words, as to whether Committee of Advocate Commissioners can issue any direction to the District Administration, in this regard. Mr. Subhash Upadhyay, Chief Standing Counsel for State of Uttarakhand submits that this Court must clarify the role and duties of Committee of Advocates Commissioners. We clarify that Committee of Advocate Commissioners may visit different spots and may report to this Court about the alleged encroachment over the public land and copy of such report shall also be forwarded to the Divisional Commissioner. We hope and trust that Committee of Advocate Commissioners shall provide full assistance to this Court, however, shall not issue any direction directly to the district administration. Mr. Rajeev Singh Bisht, Advocate for the petitioner and Mr. Sharad Sharma, Sr. Advocate with Mr. M. C. Pant, Mr. B.S. Adhikari, Mr. We hope and trust that Committee of Advocate Commissioners shall provide full assistance to this Court, however, shall not issue any direction directly to the district administration. Mr. Rajeev Singh Bisht, Advocate for the petitioner and Mr. Sharad Sharma, Sr. Advocate with Mr. M. C. Pant, Mr. B.S. Adhikari, Mr. M.S. Chauhan, Advocates for interveners, submitted that District Administration is asking to leave 2 – 3 feet place from the retaining wall of the different Nalas carrying rain water to Naini Lake. According to learned counsel for the parties, owners of the land adjacent to Nalas cannot be asked to leave 2 – 3 feet land between the construction and retaining wall of the Nalas. It is further submitted that if person concerned is not permitted to raise constructions adjoining to the retaining wall of different Nalas, there may be chances of water logging in between and because of water logging, retaining wall of Nala as well as construction raised by the person concerned can also be got damaged. We find force in the submissions, so raised by learned counsel for the parties. Mr. Subhash Upadhyay, learned CSC for the State of Uttarakhand, assured this Court that he will speak to the Divisional Commissioner and shall apprise him about the confusion being created by some of the officers.” In compliance of order dated 07.08.2014, various notices were issued to the applicants on different dates informing the applicants that during the survey, it was found that applicants have raised construction by encroaching upon the public streets and Nalas carrying rain water to the Naini Lake. Having received such notices, applicants have filed present applications. We will deal such applications one by one as under : Before we take up the applications one by one, we would like to clarify that due to encroachment over the public properties particularly drains, rainy nalas, water bodies or public road, our Nation has experienced natural calamity of 2013 in Uttarakhand and of this year in Srinagar (Jammu and Kashmir). In our considered opinion, none, how powerful he may be, should be allowed to encroach public roads, drains, nalas and water bodies. CLMA No. 8886 of 2014 CLMA No. 8887 of 2014 Mr. J.C. Karnataka, learned counsel for the applicants submits that applicants were allotted temporary place 5 x 6 feet over the public road coming from Him Trek Hotel to Mall road. CLMA No. 8886 of 2014 CLMA No. 8887 of 2014 Mr. J.C. Karnataka, learned counsel for the applicants submits that applicants were allotted temporary place 5 x 6 feet over the public road coming from Him Trek Hotel to Mall road. He further submits that both the applicants have divided the structure on the spot. Municipality has cancelled the allotment and thereafter has demolished the structure and now asking to remove temporary shed also. Hon’ble Apex Court in the case of Municipal Board, Manglaur Vs. Mahadeoji Maharaj reported in AIR 1965 SC 1147 has held that no part of land / road can be permitted to be used for any other purposes. As per Section 116 of the U.P. Municipality Act, every street, road or pubic pathway vests in the Municipality. Therefore, Municipality is the trustee to protect the public property and Municipality is / was not competent to allot any part of the road for commercial activities or any other activities. Therefore, realizing the mistake, Municipality has rightly cancelled the permission granted to the applicants. Photographs attached to the application, annexure No.7, clearly reveal that construction of the applicants was over the public road coming from Him Trek Hotel to Mall road. Therefore, it was rightly demolished and applicants have absolutely no right to use the public road by any means for commercial and residential purpose. It is reported by Mr. V.B.S. Negi, learned Additional Advocate General for the State that applicants are still occupying the land and they are running tea stall after making the temporary shed. This is height of the matter. Even after demolition was carried out to remove the encroachment from the public road, applicants have raised temporary construction and are still using part of the road and obstructing the free flow of traffic. Therefore, applicants are directed to leave the place immediately. District Administration as well as Municipality are directed to remove the applicants immediately. Applicants shall not be allowed to use any part of the road. CLMA Nos. 8886 of 2014 and 8887 of 2014 stand disposed of accordingly. Therefore, applicants are directed to leave the place immediately. District Administration as well as Municipality are directed to remove the applicants immediately. Applicants shall not be allowed to use any part of the road. CLMA Nos. 8886 of 2014 and 8887 of 2014 stand disposed of accordingly. CLMA No. 9769 of 2014 Applicant was given notice dated 12.08.2014, in compliance of the various orders passed by this Court to remove the encroachment from the public property, i.e. road, street and different nala carrying drain water to the Naini Lake, asking the applicant to remove the shop and one store room made over the nala No. 23. It is sated in the accompanying affidavit that tenant on behalf of the Trust is in possession of the premises in question and Trust has no objection if construction / encroachment is removed from the spot. It is further stated that litigation is pending between the landlord and tenant in the Court of District Judge pertaining to the eviction of the tenant from the premises in question. Therefore, applicant is not able to remove the encroachment by demolition of shop in occupation from Nala No.23. In our considered opinion, since constructions are made having encroached upon the Nala No.23, therefore, mere pendency of the litigation between the landlord and tenant, administration cannot be de-barred in removing the encroachment in compliance of the various orders passed by this Court as well as impugned notice. Therefore, we direct District Administration to issue fresh notice asking the applicant as well as the tenant to remove the encroachment within 15 days. Such notice shall be issued within a week from today. If encroachment is not removed in compliance of the notice, damages of Rs. One lac shall be recovered from the applicant as well as from the tenant and construction shall be demolished at the risk and cost of the tenant. 50% of the damage shall be paid to the Uttarakhand State Legal Services Authority and 50% shall be paid to the State Government. It is further directed that applicant shall not be allowed to raise further /fresh construction over the public Nala No. 23. CLMA No. 9769 of 2014 stands disposed of accordingly. CLMA No. 9829 of 2014 CLMA No. 9830 of 2014 Mr. It is further directed that applicant shall not be allowed to raise further /fresh construction over the public Nala No. 23. CLMA No. 9769 of 2014 stands disposed of accordingly. CLMA No. 9829 of 2014 CLMA No. 9830 of 2014 Mr. Sumit Bajaj, Advocate for the applicant representing Hotel Ambassador submitted that entire encroachment shall be removed in compliance of the notice dated 12.08.2014 within such time as this Court deems fit. He further submits that applicant has already started demolishing the structure, however, if structure is demolished in haphazard way, it may cause damage to remaining authorized structure of the Hotel. We are happy that applicant is willing to remove the encroachment himself. Three months time is granted to the applicant to remove the entire encroachment from the spot as indicated in the notice dated 12.08.2014. Both the applications stand disposed of accordingly. CLMA No. 10318 of 2014 CLMA No. 10321 of 2014 Mr. Gopal K. Verma, learned counsel for the applicant submits that encroachment pursuant to the notice dated 25.08.2014 shall be removed within reasonable time, therefore, three months time may be granted to the applicant to remove the encroachment. Applicant is said to be in possession of shop which is found standing on the public property, i.e. Khari Sarak, Bara Bazar, Mallital, Nainital. We are of the opinion that applicant should be granted one month’s time to remove the entire encroachment pursuant to the notice dated 25.08.2014. Accordingly, applicant is given one month’s time to remove the encroachment. CLMA No. 10318 of 2014 and 20321 of 2014 stand disposed of accordingly. CLMA No. 10335 of 2014 Dr. M.S. Pal, applicant, former Member of Parliament and Senior Advocate, practicing in this Court is present in person. Dr. M.S. Pal, applicant in person has stated that he has not constructed any ladder or stairs on the Nala No. 12 as shown in the notice dated 12.08.2014. Further contends that ladder / stairs were constructed by the Municipal Board and he is not claiming any personal right over the ladder / stairs mentioned in the notice dated 12.08.2014. In view of the above, we direct the District Administration as well as Municipality to remove the ladder / stairs from Nala No.12 forthwith as shown in the notice dated 12.08.2014. However, Dr. In view of the above, we direct the District Administration as well as Municipality to remove the ladder / stairs from Nala No.12 forthwith as shown in the notice dated 12.08.2014. However, Dr. Pal submits that garage as mentioned in the notice dated 12.08.2014 belongs to him and that is standing in his own personal property and no part of the garage is over the Nala No. 12. Further contends that wall of garage is adjacent to the retaining wall of Nala No. 12, therefore, authorities should not ask him to leave 2-3 feet place between the wall of the Nala and wall of the Garage. Mr. D.S. Patni, learned counsel for the Municipality and Mr. V.B.S. Negi, learned Additional Advocate General, appearing for the State, stated that fresh inspection / measurement shall be undertaken on the spot within a week from today to find out as to whether any part of the garage is standing over the Nala No.12. Dr. Pal, in all fairness for which he is known at the Bar, fairly submits that if during measurement any part of the garage is found standing over the Nala No. 12, he will take appropriate steps to set example before the public to remove the encroachment and shall demolish the same within ten days thereafter. However, if no part of the construction is found over any part of Nala No. 12, it goes without saying that it shall not be touched saying 2-3 feet space has to be left in between the wall of the Nala and Garage. CLMA No. 10335 of 2014 stands disposed of accordingly. CLMA No. 10353 of 2014 Applicant was served with notice saying that applicant has raised construction over the Branch of Nala No. 23, therefore, he should remove the same within 15 days from the service of notice. Mr. Siddharath Sah, Advocate for the applicant, does not dispute the existence of Nala No. 23 and its branch. He, however, submitted that since branch of Nala No. 23 is flowing underground, therefore, there is no question of making encroachment above the Nala over the plot. He, however, stated that applicant has purchased property over the branch of Nala No. 23 by the sale deed and construction over the Nala are very old, therefore, applicant is the owner of the land whereunder branch of Nala No. 23 is flowing. He, however, stated that applicant has purchased property over the branch of Nala No. 23 by the sale deed and construction over the Nala are very old, therefore, applicant is the owner of the land whereunder branch of Nala No. 23 is flowing. On being asked, as to whether branch of Nala No. 23 was ever constructed after digging the property of the applicant or his predecessor, Mr. Siddhartha Sah, learned counsel for the applicant, submitted that no branch of Nala No. 23 was constructed by digging the property of the applicant or his predecessor rather his predecessor have raised constructions over the plot whereunder Branch of Nala No. 23 is flowing, however, none objected for last more than 50 years, therefore, old constructions standing thereon cannot be said to be encroachment. In our considered opinion, no right or title can be matured on the public road or rainy nalas. Nor principle of estoppel can be pressed in service against statute. Moreover, in our considered opinion, as per Section 116 of the U.P. Municipalities Act, all drains, Nalas, water bodies, streets and pathways vest in the Municipality. Branch of Nala, in question, is not the personal property of applicant and is a purely public property, therefore, construction cannot be allowed to stand over the Nala saying construction was 100 years old and none objected the applicant or his predecessor at the time of construction. Therefore, applicant is directed to remove the encroachment, in compliance of notice dated 25.08.2014 within 15 days from today, failing which District Administration as well as Municipality, Nainital shall be at liberty to remove the encroachment at the risk, cost and expenses of the applicant. Cost of removal shall be recovered from the applicant. In that event, applicant shall also pay Rs. 1,00,000/-, as damages. 50% shall be paid to the Uttarakhand State Legal Services Authority and 50% to the District Administration for encroaching the public property. Application stands disposed of accordingly. CLMA No. 10357 of 2014 Mr. M.C. Kandpal, Sr. Advocate, for the applicant undertakes to remove the encroachment in compliance of notice dated 12.08.2014 after expiry of academic session in the month of April, 2015. Application stands disposed of accordingly. CLMA No. 10357 of 2014 Mr. M.C. Kandpal, Sr. Advocate, for the applicant undertakes to remove the encroachment in compliance of notice dated 12.08.2014 after expiry of academic session in the month of April, 2015. Keeping in mind, interest of academic session and children studying in the college, we grant time till 30.04.2015 to the applicant to remove the encroachment in compliance of notice 12.08.2014, failing which same shall be removed by District Administration and Municipality, Nainital at the cost, risk and expenses of applicant and in that event, applicant shall pay Rs. 2,00,000/-, as damages. Out of Rs.2,00,000/-, Rs. 1,00,000/- shall be paid to State Legal Service Authority, Uttarakhand, Nainital and balance amount shall be paid to the District Administration. Application stands disposed of accordingly. CLMA No. 8554 of 2014 CLMA No. 8555 of 2014 CLMA No. 8560 of 2014 CLMA No. 8561 of 2014 CLMA No. 9822 of 2014 CLMA No. 9918 of 2014 CLMA No. 10356 of 2014 CLMA No. 10647 of 2014 It is reported by Ms. Vandana Singh, Advocate that Mr. Sharad Sharma, learned Senior Counsel, appearing for the applicants, shall address the court on behalf of the applicants, however, he is not feeling well. On her request, list on 25th September, 2014. On the last date of hearing, it was stated before us that Toll Bridge charges can be recovered from only those who intend to use Mall Road by vehicle and there is no provision to recover Toll Bridge charges from those who do not intend to use Mall Road and are going to other parts of the city of Nainital. Affidavit was required to be filed, however, no affidavit has been filed in this regard as yet. Mr. D.S. Patni, learned counsel for the Municipality as well as Mr. V.B.S. Negi, learned Additional Advocate General for the State stated that deliberations are going on as to how Toll Bridge recovery booths can be removed from Bara Pathar and Phansi-ka-gadera areas. We are prima-facie satisfied that toll charges can be recovered from only those who intend to use Mall Road by vehicle and not from those who do not intend to use Mall Road and are going to other parts of the city of Nainital. We are prima-facie satisfied that toll charges can be recovered from only those who intend to use Mall Road by vehicle and not from those who do not intend to use Mall Road and are going to other parts of the city of Nainital. Therefore, we direct Municipality, Collector as well as Commissioner, Nainital to close down immediately Toll Bridge recovery booth from Phansi-ka-gadera and Bara Pathar and no recovery shall be made from these two booths from the vehicle simply entering into the Municipality area. List on 25th September, 2014.