Uttarakhand High Court in Prof. Ajay Singh Rawat v. Union of India & Ors. [10.07.2015]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL 

Writ Petition (PIL) No. 31 of 2012 

Prof. Ajay Singh Rawat 

.....Petitioner 

Versus 

Union of India and others 

.....Respondents 

Mr. M.C. Pande, Senior Advocate as Amicus Curiae for the petitioner. 

Mr. V.B.S. Negi, Additional Advocate General assisted by Mr. Subhash Upadhaya, Chief Standing Counsel for the State. 

Mr. D.S. Patni and Mr. Ajay Singh Bisht, Advocates for Municipal Board, Nainital. Mr. Sandeep Kothari, Advocate for the Lake Development Authority. 

Coram: Hon'ble Alok Singh, J.

Hon'ble Servesh Kumar Gupta, J.

Hon'ble Alok Singh, J. (Oral) 

Mr. V.B.S. Negi, learned Addl. Advocate General appearing for the State, Mr. D.S. Patni, learned counsel, appearing for the Municipality, Mr. Sandeep Kothari, learned counsel, appearing for the Lake Development Authority and Mr. M.C. Pande, Senior Advocate, appearing as Amicus Curiae, have vehemently submitted that in this monsoon season, due to heavy rain, about 1300 cubic meter malba (debris) has flown to the Mall Road on 05.07.2015 from the nearby hill and has blocked the Mall Road completely. Further contended that yesterday too, due to heavy rain, again 250 cubic meter malba (debris) came down from the hill area on the Mall Road. Further contended that because of the encroachment removal drive being undertaken under the supervision of this Court and various directions issued by this Court, few nalas adjacent to Alka, India and Everest Hotels were cleaned, therefore, casualty could be avoided. Further stated that Vyapar Mandal and Hotel Association of Nainital have issued appeals in the newspapers to all the residents of Nainital to remove the encroachments themselves from the various roads, hills, catchment areas, water bodies and different nalas, wherein rainy water and natural water flows from different hills to Naini Lake. They further submitted that despite appeals being issued by District Administration, Social Workers, Vyapar Mandal and Hotel Association, few people are still adamant not to remove encroachments.

It is also reported that on 05.07.2015 heavy flow of water started flowing from the Chandni Chowk Hotel, which was also videographed by the District administration and few citizens of this city, which shall demonstrate that perhaps by making illegal encroachment over the barsati nala, Chandni Chowk Hotel has come up. They fairly submitted that to avoid heavy flood and untoward incident as happened in Srinagar in 2013 as well as in Kedarnath, encroachment should be removed forthwith from every nala, drain, water bodies, catchment areas and illegal constructions raised on the different hills of city of Nainital should also be demolished at the earliest. It is submitted that due to illegal constructions on different hills, more particularly, Saat Number and Sher Ka Danda, debris, boulders and sand is coming down causing damages to the properties of others as well as public properties.

It has further been pointed out that Sukha Tal Lake is natural water body, wherein water stores due to heavy rain and, thereafter, recharge in Naini Lake during Summer and Winter. However, few people in the garb of old entries made in the revenue record in their favour from the time of pre-independence era, are transferring the different plots in Sukha Tal area and have made illegal encroachments thereon. Few of them are Advocates, powerful businessmen as well as politicians. Further contended that every water bodies where natural water is stored from times immemorial vest in the Municipality as per Section 116 of the Municipality Act. Further contended that under the political pressure, every year lakhs of rupees are being spent to drain out the water from the Sukha Tal Lake to save the encroachers who have illegally raised the construction in the Sukha Tal area. It is pointed out that earlier boats were used to sail in the Sukha Tal Lake. They fairly suggested that this year this Court should issue directions not to drain out water from the Sukha Tal area and to remove all the encroachment from the Sukha Tal catchment area wherein natural and rain water stores.

We appreciate gesture shown by the learned counsel appearing for the parties.

It is really painful that despite various appeals being issued by the Hotel Association and Vyapar Mandal and social workers, still few people are in illegal encroachment/occupation over the public land and they are avoiding their dis-possession on one ground or another. Keeping in mind the urgent situation, we cannot permit them to raise objections on one ground or another.

Today, every member of the Bar has shared in the Court Room that had there been no order for removal of encroachment from different nalas adjacent to Hotel India, Alka and Everest, debris about 1600 cubic meter would have caused loss of several lives and properties.

We, therefore, direct District Administration, Municipality and Lake Development Authority, not to drain out water this year from the Sukha Tal Lake henceforth. They will mark the illegal construction in the catchment area of Sukha Tal Lake forthwith, in any case within 24 hours and shall issue appeals by public announcement to all the people who are residing in the catchment area of Sukha Tal Lake to vacate their properties forthwith, so that untoward incident may be avoided and whosoever despite appeals and requests being made by the District Administration is not vacating the property, shall be dis-possessed by using such force which learned District Magistrate deems fit. We further direct that all the illegal construction in the Sukha Tal Lake catchment area shall be demolished after serving short notice as directed by the Hon'ble Apex Court in the case of Jagpal Singh and others vs. State of Punjab and others reported in (2011) 11 SCC 396.

In the previous orders, we have directed that alleged encroachers may challenge the notices issued to them to remove encroachment before us, however, keeping in mind the urgent situation and urgent need of the hour to save the lives of the people, more particularly, the city of Nainital, in our opinion, encroachment should be removed immediately.

It is reported by Mr. M.C. Pande, learned Amicus Curiae, Mr. H.M. Bhatia, learned member of the Committee of Advocate Commissioners and Mr. D.S. Patni, learned counsel for the Municipality that they have personally visited Rama Cottage / Spring Field area yesterday and they found that it is on the nazul land. Further contended that one of the rainy nala, which is just above the CRST College is in a very dangerous and dilapidated condition which requires urgent treatment and repair to avoid untoward incident. Further contended that lease granted over the nazul land in the Rama Cottage / Spring Field Cottage area has expired, however, despite this fact, few builders and land mafias are plotting the area and are selling the plots to different innocent people. District Magistrate is directed to personally look into the matter and to make statement on the next date.

Mr. D.S. Patni, learned counsel appearing for the Municipality shall make statement on Monday as to when dog shed as proposed by him shall come up.

Mr. V.B.S. Negi, learned Addl. Advocate General shall make statement on Monday as to when fund as directed by us for the purpose of dog shed shall be released and shall show cause as to why it has not been released as yet.

It is pointed out that lot of encroachments have come up over the hill area known as Ward No. 7 and Sher Ka Danda. It is further pointed out that people have raised illegal constructions by putting sand-bags and raising the pillars between hilly slope and sand-bags and due to heavy rain, these illegal constructions may fall down at any time and there may be loss of lives and properties.

It is further pointed out that none of the construction at Ward No. 7 and Sher Ka Danda area has been sanctioned either by the Lake Development Authority or by the Municipality. District Magistrate and Secretary, Lake Development Authority are directed to visit the spot during the course of the day with the team of officers. They shall identify the illegal construction in the area known as Ward No. 7 and Sher Ka Danda and shall issue warning/appeal to vacate that area immediately to save the lives of the people residing therein and, thereafter, shall take all the appropriate steps to remove illegal encroachment from the Ward No. 7 and Sher Ka Danda area at the earliest. Action taken shall be brought to our notice on the next date.

Mr. Sandeep Kothari, learned counsel appearing for the LDA has pointed out that two kiosks constructed by the LDA in the new bus stand area have already been handed over to the Municipality, therefore, same can be removed therefrom with the help of the Municipality only.

In view of the above, we issue direction to the District Administration, the LDA and the Municipality to remove both the kiosks from the new bus stand area forthwith so that vacant area can be used to park atleast three more buses there.

District Magistrate may permit heavy vehicles of various Government Departments carrying transformers and necessary tools and equipments for the public use over the Mall Road considering the urgency. However, ordinarily, such permission should be during the hours when there is no crowd on the Mall Road.

It is pointed out that ponywalas have encroached upon the forest land near Bara Patthar area and are causing nuisance and pollution to the residents of nearby areas and different lakes including Sariyatal and Khurpatal lakes.

Mr. V.B.S. Negi, learned Additional Advocate General undertakes to remove all the encroachments from the forest area near Bara Patthar forthwith.

It is pointed out by Mr. Subhash Upadhyaya, learned Chief Standing Counsel that money has already been sanctioned by the Government to widen the road from Mohan Co. intersection to Gol Ghar near B.D. Pandey Hospital. Further contended that work shall commence at the earliest after inviting tenders.

List on 13.7.2015 at 03:00 p.m. Commissioner, Kumaon, District Magistrate, Nainital and Secretary, Lake Development Authority shall remain present in person.