DCs, SSPs to be held responsible if violations take place in future
*Disobedience of directions will amount to contempt of court
Mohinder Verma
JAMMU, Dec 29: Stating that encroachments have become grave menace in the Union Territory of Jammu and Kashmir, a Division Bench of High Court comprising Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri has issued directions to the Government for forthwith removal of structures erected or re-erected on public property during the last five years. Moreover, the DB has made it clear that in case any encroachment takes place in future, the Deputy Commissioners and Superintendents of Police of that area shall be held responsible.
These directions have been passed by the Division Bench in a petition tiled “Jammu Municipal Corporation Versus Mohd Nadeem and Another”. The petitioner (JMC) approached the High Court seeking quashment of order dated 20.01.2010 propounded by J&K Special Tribunal, Jammu vide which Tribunal has set aside Demolition Notice No. MJ/Estt/CEO/598-99/3/09 dated 08.04.2009 issued by the petitioner in terms of Section 7(3) of J&K Control of Building Operation Act, 1988 and directed respondent to deposit the monthly rent.
After hearing Senior Additional Advocate General S S Nanda for JMC and Advocate Sheikh Shakeel Ahmed with Advocate Rahul Raina for Mohd Nadeem and Another, the DB observed, “it needs a specific mention that unfortunately, encroachments have become a menace especially in this part of the country and all directions passed by this court from time to time to maintain the order on the public road and public street have fallen on the deaf ears of the concerned authorities”.
“It is pertinent to mention here that every citizen has a fundamental right of movement and it cannot be allowed to be breached in public. The Supreme Court and High Courts across the country from time to time have taken a serious view of the encroachments over public lands and public streets, which belong to citizens at large”, the DB said, adding “encroachments over public property in general and over public lanes or public streets promote a public nuisance, constitute serious traffic hazards and jeopardize public safety, health and convenience”.
The DB further said, “needless to mention that right to enjoy public property which belongs to the general public at large, belongs to every citizen. It goes without saying that illegal constructions like signboards, hoardings, illegal constructions on public premises, public roads and public lanes cause hindrance and interruption in free flow and movement of traffic as also the smooth movement of the foot-walkers”, adding “there is no fundamental right or legal right to encroach upon a public lane or public street and raise construction of any kind thereon”.
Accordingly, the DB has directed the Government of Union Territory of J&K in general and the JMC in particular to ensure that no structure of any kind is allowed/permitted to be raised on public road, street, pathway, lane etc. which is part and parcel of the public property and belongs to the UT. “If any such structure is erected or re-erected within a period of last five years, the same shall be removed forthwith”, the DB added.
“If any encroachment is made on roads, pathways, streets or lanes in future, the Deputy Commissioners and Superintendents of Police of that area shall be responsible for the same”, the DB made it clear, adding “the violation/disobedience of these directions shall be construed as deliberate and intentional attempt to lower down the authority of this court and would amount to criminal contempt of this court”.
While setting aside the impugned order, the DB directed the Registrar Judicial to supply a copy of this order to all the Deputy Commissioners of Union Territories of J&K and Ladakh as well as Senior Superintendents of Police concerned for compliance.
Brief fact of the case before the Division Bench while led to the issuance of significant directions was that Tribunal had quashed the demolition notice issued by the JMC to the respondent in respect of Khokha constructed upon the public street on the ground that respondent being deaf and dumb was 100% disabled. Moreover, the Tribunal had directed the respondent to deposit the monthly rent as per the Municipality rates.
The JMC submitted before the DB that Tribunal has practically allotted the Khokha to the respondent constructed upon a public street, which is not permissible under law.
The DB said, “we have complete sympathy with the respondent that he is a specially abled person with 100% disability but he cannot be allowed to raise any structure be it temporary or permanent over the open space provided to him to earn his livelihood”, adding “we find ourselves in agreement with Senior Additional Advocate General that Tribunal by virtue of impugned order has virtually made an allotment of Khokha on a public lane in favour of respondent which is not permissible under law”.
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