The Haryana Lokayukta passed this order while hearing a complaint filed by Panipat-based RTI activist P.P. Kapoor. He had filed the complaint against the officers of Panipat district administration and the National Highway Authority of India (NHAI) regarding encroachment over government land.
BEFORE THE LOKAYUKTA, HARYANA, CHANDIGARH
Complaint No. 265 of 2015
Name of the Complainant: Shri P.P. Kapoor
Date of Report: 11.01.2021
Justice Nawal Kishore Agarwal, Lokayukta, Haryana (Oral)
This complaint has been preferred by the complainant Shri P'P'
Kapoor son of Shri Bilas Raj Kapoor, Resident of Near Bansal
Foundry, G.T Road, Samalkha, District Panipat levelling allegations
against the officers of District Administration, Panipat and the
National Highway Authority of India regarding encroachment over
Government land on the G.T. Road. It was prayed by the
complainant that encroachment over the G.T. Road, Panipat and the
roads of Samalkha City be got removed and the defaulting officers
be punished.
On receipt of the complaint, the matter was first referred to the learned Registrar of this institution for the Purpose of preliminary enquiry who, after conducting the preliminary enquiry
and essential proceedings submitted his report dated 26.09.2019 as
under:-
"This complaint has been brought by Sh.P.P. Kapoor, RTI Activist, R/o Near Bansal Foundry, G.T. Road Samalkha, District
Panipat against the District Administration Panipat and the National
Highway Authority of lndia.
2. The complainant alleged that the Administrative Officers of
District Panipat are negligent in performance of their duties. It is
alleged that because of the negligence of the officers of the Panipat
District and National Highway Authority of India, the general public
is suffering. It is alleged that within the territorial jurisdiction of
Municipal Committee Samalkha on the Railway Road Chulkana,
Railway Road to Manana Phatak Road, Jaurasi Road & Biholi Road,
many influential persons have encroached upon the lands of the roads illegally. On the G.T. Road, in front of the Police Post, many trucks remained parked there and due to that general public is suffering and
traffic is obstructed. Neither the PWD nor the Municipal Committee
removed the unauthorized encroachment. It is alleged that above 81 shops have been encroached upon on Railway Road to Chulkana Road
and the said shops have been given on rent. It is alleged that 81 shops have been constructed by the Municipal Corporation after
encroaching upon the land which is not land of Municipal Committee.
The complainant made the request that the investigation be got
conducted and on the G.T. road and Samalkha road the unauthorized
encroachment be got removed so that there would be smooth traffic
and action be taken against the negligent officers. Complainant also alleged that on Chaurasi road Samalkha, trees are obstructing the
traffic and the said trees can fall at any time.
3. After receiving the complaint, the Deputy Commissioner
Panipat was asked to get the matter enquired into after associating the
complainant and submit the enquiry report. The Deputy
Commissioner Panipat submitted the enquiry report which was conducted by the SDM. PWD Department also filed the reply to the complaint. Municipal Council Panipat also submitted the report. Complainant filed the objections. Thereafter from time to time, the status of the unauthorized encroachment was called and submitted by
the National Highway Authority of India.
4.Mark 'A' is the enquiry report submitted by the Sub Divisional Officer Samalkha which was forwarded by Sh. Sameer Pal Srow, IAS, the Deputy Commissioner Panipat. The enquiry report mark 'A'
proves, that with regard to the allegation No. 1 which relates to
encroachment on the G.T. road by influential persons, a letter was
written bearing No. 11.072/NHAI/PIU/2801 dated 20.10.2015 and as
per the decision of the Additional Civil Judge (Sr. Division) in a case
No. 41/2003 dated 14.11.2003, there is no such encroachment and the
temporary encroachment is being removed from time to time. With
regard to the allegation No. 2-A, it is mentioned that the Municipal
Corporation has started removing the unauthorized encroachment and
the said encroachment would be removed very soon. It is also
mentioned that after obtaining the orders from the Senior Officers, the
assistance would be provided to the PWD(B&R) to remove the
unauthorized encroachment. With regard to the alleged No. 2-8, it is alleged that XEN, PWD informed that this matter relates National Highway No. 1, control of which is with the National High Authority of India. It is also alleged provision of Punjab scheduled
rates and control areas, restriction on unregulated development and
being complied with. It is mentioned that the unauthorized
encroachment is to be removed by the XEN, PWD(B&R). With
regard to the allegation No. 2-C, it is mentioned that a letter has been
written to the Municipal Corporation Samalkha and report has not
been received. With regard to allegation No. 2-D, that unauthorized
encroachment is being removed. It is also mentioned that the trees
which are creating obstruction would be removed very soon.
5. The enquiry report mark 'B' which is in fact a reply by the
Executive Engineer PWD(B&R) proves that as per available record no case of encroachment was found. The Municipal
Corporation in his reply mark 'C' intimated that it was decided that
the temporary encroachment would be removed by the Municipal
Council and permanent encroachment would be got removed by the
authority to whom said road belongs and demarcation would also be
got done by that authority.
5. ln the present complaint, the major and permanent
encroachment is on the land of the PWD which is controlled and
managed by the National Highway Authority of India. The latest
position of the encroachment has been described in the demarcation
report of the land comprised in Khasra No. 90 Samalkha, District
Panipat. The Khasra No. 90, gair mumkin GT road Samalkha has been encroached upon. The demarcation was made in the presence of
the officer of the National Highway Authority and other concerned
authorities. Mark 'D' is the demarcation report vide which the lists of
the land encroached as well as the site plan of the land encroached has
been attached which proves that about 79 persons are in unauthorized
encroachment of the Government land belongs: to G.T. road. Mark 'E'
is the latest report submitted by the Director, PIU Sonepat. This
report proves that in view of the order dated 15.01.2018 of the
Lokayukta Haryana in the territorial jurisdiction of Samalkha, National Highway No. 44 (old NH-l.) land was demarcated on
09.03.2018 to 16.03.2018 by the Revenue Department of Samalkha and in order to remove the unauthorized encroachment the notices were issued on 07.05.2018 to the unauthorized encroachers on 13.11.2018 and Naib Tehsildar Samalkha was deputed as the Duty
Magistrate to remove the unauthorized encroachment and vide letter
dated 14.11.2018, the Superintendent of Police was requested to
provide the Police help but due to certain reasons the Police help was
not provided. Again vide letter dated 18.01.2019, request for Police
force was made. On 27.02.2019, the Police help was provided and the
process for removal of the unauthorized encroachment was initiated
but because of inadequate Police force, the Duty Magistrate stop the
removal of unauthorized encroachment. Again vide letter dated 01.03.2019, 12.03.2019, 03.05.2019, 31.05.2019 & 11.06.2019, request for Police force was made to the Superintendent of Police but force could not be provided due to unknown reasons. On 26.06.2019, attempt to get the encroachment removed was made but the SHO Samalkha informed that due to certain reasons, the Police force cannot
be provided. On 28.06.2019, again the SHO Samalkha did not provide
the Police help, thus, the unauthorized encroachment was not
removed. On 19.07.2019, the Police force was provided and only 25
unauthorized encroachment were removed. This status report further
proves that there is a high voltage line going on at as such it is not possible to remove the encroachment with the help of machine and the
Electricity Department informed that since the supply was from 3
Feeders, the Electricity cannot be stopped. It is also alleged that some
of the unauthorized encroachers have obtained the injunction order
from the Hon'ble High Court.
7. The demarcation report itself is sufficient to prove that 79 were
found in unauthorized encroachment and only 25 unauthorized
encroachments have been removed. This complaint was made in the
year 201.5, thereafter on one or the other pretext, the request is made
that the illegal encroachment would be removed. This status report mark 'E' itself proves that neither the present Deputy Commissioner
nor the Deputy Commissioner who were earlier posted since 2015 had
taken the keen interest to get the unauthorized encroachment removed.
Even the officers of National Highway Authority did not took the
serious steps to get the unauthorized encroachment removed. Sometimes the Police force is not provided, sometime on the pretext of
high voltage electricity line is passing, the encroachment was not
removed. It seems that due to pressure of influential persons, the
Deputy Commissioner and the Officers of the Municipal Council are not taking interest to get the illegal encroachment removed. Only few
persons have obtained the injunction from the Hon'ble High Court
but no steps are taken against those unauthorized encroachers who
did not obtain the injunction orders or could not succeed to obtain the
injunction orders. Since 2015, the unauthorized encroachment has not
been got removed, firstly almost 3 years were taken by the office of
Deputy Commissioner Panipat to get the land demarcated and
thereafter sufficient time has been taken to get all the illegal
encroachment removed. The Deputy Commissioner Panipat as well as
the officers of National Highway Authority have never been serious to
get the unauthorized encroachment removed from the Government
land. The persons who has been succeeded in obtaining the injunction
so far, they can protect their decisions till the decisions of their writ
petitions and there was no obstacle for the Deputy Commissioner and the Officers of NHAI to take the appropriate action to get the
unauthorized encroachment removed against others. This
unauthorized encroachment on the land of G.T. road is creating
hurdles in the smooth traffic but the administration is not serious even though of the complaint was filed in the year 2015. Prima facie there is sufficient evidence, Sh. S.P. Srow, the then Deputy Commissioner Panipat and thereafter the other Deputy
Commissioners who remained posted since the transfer of Sh. S.P.
Srow are guilty of dereliction of duties. The officers of National
Highway Authority are also guilty of dereliction of duty including
Project Officers. Since, officers of NHAI are not the public servants of
the state of Haryana, so, no action can be recommended against them.
However, since, prima facie the allegation of the complainant with regard to the unauthorized encroachment on the old G.T. road
comprised in Khasra No. 90 within the jurisdiction of Samalkha are
proved, so, the Hon'ble Lokayukta may consider the appropriate
recommendations against then Deputy Commissioner Sh. Sameer Pal
Srow and other Deputy Commissioners who remained posted after his
transfer including the present Deputy commissioner."
After receipt of the preliminary enquiry report, copy of the
same was forwarded to the complainant to file his objections/reply,
if any. He filed objections to the preliminary enquiry report. Notice was issued to Shri S.P. Srow, the then Deputy Commissioner, Panipat
alongwith copy of complaint and objections received from the
complainant to submit his part of reply / objections. The Chief
Secretary was also desired to furnish the names of the other Deputy
Commissioners, who remained as Deputy Commissioner, Panipat
after the transfer of Shri Samir Pal Srow. Reply on behalf of the
Deputy Commissioner, Panipat was received according to which
Shri Srow remained as Deputy Commissioner, Panipat from
18.02.2013 to 05.02.201.4 and from 26.11,.201,4 to 28.04.201,6. It was
submitted by Shri Ram Gopal, Tehsildar, Samalkha, who was present
on 04.03 .2020 on behalf of the Deputy Commissioner, Panipat that
out of 96 encroachments, 33 encroachers have approached the
Hon ble High Court, in which stay orders were passed in their favour
and so far as the remaining encroachments are concerned, they have already been removed and he would submit the report with affidavit
and photographs after inspecting the spot.
On 02.11 .2020 reply has been filed on behalf of the respondent
Shri Samir Pal Srow alongwith copy of orders passed by the Hon'ble
High Court in C.W.P. No. 3859 of 2017.
The matter has been discussed, heard and the entire relevant
material and evidence available on record in this matter as well as
report of the learned Registrar have also been gone into minutely.
Instant complaint has been filed by the complainant
against the administrative officers of District Panipat, as according to
him they are negligent in performance of their duties in removing
encroachments over National Highway No. L on G.T. Road, Railway
Road Chulkana, Railway Road to Manana Phatak Road, Jaurasi Road
and Biholi Road, where many influential persons have encroached upon the lands of the roads illegally. The aforesaid complaint was
enquired in detail during preliminary enquiry and according to para
7 of the preliminary enquiry report submitted by the learned
Registrar: "The demarcation report itself is sufficient to prove that 79 were found in unauthorized encroachment and only 25 unauthorized
encroachments have been removed. This complaint was made in the year
2015, thereafter on one or the other pretext, the request is made that the
illegal encroachment would be removed. This status report mark 'E' itself
proves that neither the present Deputy Commissioner nor the Deputy
Commissioner who were earlier posted since 2015 has taken the keen
interest to get the unauthorized encroachment removed. Even the officers of
National Highway Authority did not took the serious steps to get the
unauthorized encroachment removed. Sometimes the Police force is not
provided, sometime on the pretext of high voltage electricity line is passing,
the encroachment was not removed. It seems that due to pressure of influential persons, the Deputy Commissioner and the Officers of the
Municipal Council are not taking interest to get the illegal encroachment
removed. Only few persons have obtained the injunction from the Hon'ble
High Court but no steps were taken against those unauthorized encroachers
who did not obtain the injunction orders or could not succeed to obtain the
injunction orders. Since 2015, the unauthorized encroachment has not been
got removed, firstly almost 3 years were taken by the office of Deputy Commissioner Panipat to get the land demarcated and thereafter sufficient
time has been taken to get all the illegal encroachment removed. The Deputy Commissioner Panipat as well as the officers of National Highway
Authority have never been serious to get the unauthorized encroachment
removed from the Government land, The persons who has been succeeded in
obtaining the injunction so far, they can protect their decisions till the
decisions of their writ petitions and there was no obstacle for the Deputy Commissioner and the Officers of NHAI to take the appropriate action to get the unauthorized encroachment removed against others. This
unauthorized encroachment on the land of G.T. road is creating hurdles in
the smooth traffic but the administration is not serious even though of the
complaint was filed in the year 2015. Prima facie there is sufficient evidence, Sh. S.P. Srow, the then Deputy Commissioner Panipat and
thereafter the other Deputy Commissioners who remained posted since the
transfer of Sh S.P. Srout are guilty of dereliction of duties. The officers of
National Highway Authority are also guilty of dereliction of duty
including Project Officers. Since, officers of NHAI are not the public
servants of the State of Haryana, so, no action can be recommended against
them. However, since, prima facie the allegation of the complainant with
regard to the unauthorized encroachment on the old G.T. road comprised in
Khasra No. 90 within the jurisdiction of Samalkha are proved, so, the
Hon'ble Lokayukta may consider the appropriate recommendations against
then Deputy Commissioner Sh. Sameer Pal Srow and other Deputy Commissioners who remained posted after his transfer including the present
Deputy Commissioner."
In his objections to the preliminary enquiry report it has been
submitted by the complainant that then Deputy Commissioner Shri
Sameer Pal Srow has submitted misleading report before this
Authority observing no permanent encroachment over G.T. Road,
Panipat, which is clear from the order dated 05.08.2014 passed by
then District Magistrate Shri Ajit Balajit Joshi, IAS, who entertained
the request of National Highways Authority of India, Ambala for
removal of encroachment for ROW of National Highways from Km
86 to Km 96, and exercising the powers vested in him under Section
22 (i) and 23 (ii) of the Code of Criminal Procedure, 1973 appointed
the Tehsildar, Panipat as Duty Magistrate with a further request to
the Superintendent of Police, Panipat to provide adequate Police
force including lady constables to the Duty Magistrate for the aforesaid purpose and also directed Manager (T), NHAI to tie up
with the Duty Magistrate Local Police and further ensure that there
is no stay from any Court of Law. It is further submitted by him that
even temporary encroachments were not removed properly and still
the traffic problem is as it is.
In response to the notice, reply has been filed by Shri Sameer
Pal Srow, IAS (Retired), who was the Deputy Commissioner, Panipat
for the period commencing from 16.02.2013 to 05.02.2014 and from
25.11.2014 to 27.04.2016, in substance he submitted that the
complaint has been filed by the complainant maliciously to target
him and tarnish his image; in fact the National Highways are
governed under the National Highways Act, 1956; the responsibility
to maintain and develop the National Highways is upon the Central
Government; it was noted by the Parliament that there was no
effective law to ensure expeditious removal of encroachment or occupation of the Highways and the existing laws had a lot of
dilatory mechanism, hence, with a view to control the land within the
National Highways, right of way and also for the removal of the
unauthorized encroachment, the Parliament enacted. The Control of
National Highways (Land and Traffic) Act, 2002, which received the
assent of the President of India on 14.01..2003; the Act aimed and
intended to overcome the problem of removal of encroachment/
occupation over the Highways and the Right of way amongst other
functions and intents of the Act. Under Section 3 of the aforesaid Act,
the Highway Administration was created, which had the power to
prevent the occupation of the Highway under Section 24 of the said
Act and was authorized for removal of the encroachment or
occupation in terms of Section 26 of the aforesaid Act, hence, the
responsibility to prevent encroachment and to remove any
occupation or encroachment of the National Highway including the Right of way is upon the Highway Administration ; and he cannot
thus be held accountable for any act of omission or commission on
the part of Highway Administration; the complainant had chosen to
initiate proceedings against him without specifying any
encroachment, which was Perpetuated at his behest; he had not
permitted any encroachment to exist over the land and that all
encroachment or occupation over the right of way came along when
he assumed office at Panipat. He has further stated that the
encroachments around the roads within the limits of Municipal
Council, Samalkha, it is the Municipal Council, who is responsible
there for; the Deputy Commissioner is only the appellate authority;
and for the encroachments over P.W.D. roads, the Executive
Engineers of the PWD (B & R) are the designate officers to initiate
proceedings under the Public Premises Act and he has been
wrongly made party in the present complaint.
The encroachments over public Lands /Highways
influential persons is
supervision and will
now a common phenomenon. Lack
power of the authorities responsible for
prohibiting and removing encroachments, not only causing great
inconvenience to public at large due to traffic hazards, and loss to
Public Exchequer, but also creating difficulties in widening of the
Road Projects, which are Dream Projects of the Central Government.
Certainly, in removing such encroachments, the State Authorities
like Municipal committees, PWD (B&R) and District
Administration have to show their keen interest and will power to
effect their statutory duties as well as moral duties imposed upon
them, in which they utterly failed, and by lapse of time, as the scope
of challenging the demarcation always remains present for want of
new scientific and technical survey, it may again be difficult for the
Government to defend the cases before the courts.
In one of the case, the Hon'ble supreme Court in case of "Jagpal Singh & Ors. versus State of Punjab" 2011 (5) SRJ 495 by decision
dated 28.01.2011 had issued the following directions:-
“23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.”
Reverting to the facts of the case, indisputably, encroachments
over areas as mentioned by the complainant did exist. Vide letter
dated 24.10.2015, the NHAI had highlighted that permanent and
temporary encroachments exists over G.T. Road with a request to
remove the same. In response to above, the enquiry was conducted
by the Deputy Commissioner, Panipat through the sub Divisional
Officer (Civil) and according to the report of Sub Divisional Officer
(Civil), Samalkha dated 11..04.201,6, as per the judgment of
Additional Civil Judge, senior Division, Panipat in case No. 41/2003 dated 14.11.2003 there is no encroachment over G.T. Road; all Roads
relates to PWD or Municipal Committee and temporary
encroachments are being removed from time to time. However, the
following order has been passed by the permanent Lok Adalat on
26.09.2016 in a case filed by Jagpal Singh vs. NHAI and others:-
"Sh. Jivender Singh, Tehsildar Panipat who is present in
this Adalat today has stated that due to rack of coordination
the demarcation of the G.T. Road from Kms 86 to 96 with the
help of Total station Machine could not be done. The
respondent No. 1 has also filed one document and copy thereof
supplied. The operator of Total station Machine is also present.
sh. J.S. Rathore, Advocate, counsel for the respondent No.1
had undertaken to provide the staff for demarcation and
would incur the expenditures in getting the demarcation done
by the respondent No.1. The parties have also prayed for directing the police to extend the herp for the demarcation.
Hence, the letter be sent to SP Panipat for extending the police
help for the demarcation of the said road. The demarcation
report be also submitted on 21.10.2076 by Tehsildar, Panipat."
The Permanent Lok Adalat has further passed an order dated
17 .02.2017 observing:-
"From the facts and circumstances of the case, it is also clear that the respondent No. 1 now wants to delay the matter
on one pretext or the other though its stand was that it
would demarcate the area of NH-1 but now it is back tracking.
Earlier, it has filed an application for dismissal of the main
application of the applicant Jagpal Singh moved under section
22(c) of the Legal services Authorities Act, 1987 pleading therein that this Adalat has no jurisdiction in the matter as the
value of the property in dispute exceeds Rs. 10 lac and that the
value of the property in dispute is worth crores of rupees.
After hearing, this application was dismissed vide order dated
03.02.2017. Hence, in view of the these facts and circumstances,
the pay of the General Manager (Tech) of respondent No. 1 is
attached hereby in pursuance of the order dated 06.02.2017.
He is directed to appear before this Adalat on 27.02.2017."
The aforesaid order was challenged by NHAI by filing Civil
Writ Petition No. 3859 of 2017, in which the aforesaid order dated
17.02.2017 of the permanent Lok Adalat has been stayed by the
Hon'ble High Court of Punjab & Haryana vide its order dated
28.02.2017.
Record further reveals that several writ petitions have been
preferred by several persons, which are either pending or disposed of
by the Hon'ble High Court of Punjab & Haryana. Thus, as several litigations were pending before the Judicial Forums including the
Hon'ble High Court of Punjab & Haryana, and the instant complaint has also not filed against any specific public servant nor looking to
very complex issue of encroachments and its removal in the facts and
circumstances of the case, any specific public servant can be held
liable there for. In view of above, it would be very difficult to hold
any specific public servant guilty of dereliction of his/ their duties.
Nevertheless, removal of encroachments which needs
combined effects on the part of the statutory Authorities responsible
there for, is necessary.
In the result, in view of my foregoing findings, discussions and
observations, it is recommended to the competent authority:-
i) To conduct Technical and scientific survey regarding the
encroachments/ illegal possession over the Municipal lands/
Roads in the entire state and thereafter, to take appropriate
steps for its removal in accordance with law;
ii) statutory authorities of the state like Municipalities, Municipal
Corporations, PWD (B & R), and District Administration shall take all the steps for removal of encroachments on National
Highways, as are imposed upon them under the statutes; and
iii) To ensure implementation of the guidelines issued by the
Hon'ble Supreme Court, as mentioned in para 22 of the
judgment in case of Jagpal Singh vs. State of Punjab & Ors., referred above in this report alse in relation to Roads and
Highways.
Action taken report in this regard be sent to this Authority of
Lokayukta within three months, as required under section 17(2) of
the Haryana Lokayukta Act, 2002.
With the above recommendations the instant complaint stands
disposed of.
All concerned be informed accordingly.
11.01.2021
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