G.S. Singhvi, J.
1. Whether the writ jurisdiction of the High Court deserves to be exercised for restraining the State and its agencies from enforcing the provisions of law under which they are empowered to remove encroachments from public land is the question which arises for adjudication in these petitions filed by the residents of Sectors 4, 6, and 7 of the Urban Estate, Panchkula who have prayed for quashing the public notices issued by the Administrator, H.U.D.A., Panchkula (hereinafter described as 'respondent No.2') and the Estate Officer, H.U.D.A., Panchkula (hereinafter described as 'respondent No.3')
2. At the out-set, we deem it appropriate to reproduce the notices issued by respondents No.2 and 3 respectively which have been filed as Annexures P.1 and P.2 along with C.W.P. No.4148 of 1999. The same read as under :
Annexure P.1
Tribune dated 28.9.88
Public Notice
Encroachments of open spaces/road berms/road reservations
It is brought to the notice of the General Public that all encroachments by way of hedges, fencing any masonry structures on road berms and road reservations are illegal besides being a traffic hazard. This amounts to unauthorised occupation of public spaces which have been provided for the enjoyment of general public. While HUDA would welcome maintenance of these spaces as grassy greens with ornamental trees and flowers, their usurpation for individual use and enjoyment cannot be permitted. No permanent or obstructive structures can be allowed on the same. Any such hedges, fences or masonry, structures should be removed by 5th Oct., 1988 failing which the same are liable to be removed at the encroachers costs.
Administrator,
Haryana Urban Development Authority, Panchkula'
'Annexure P.2.
PUBLIC NOTICE
All the residents of Urban Estate, Panchkula and Mansa Devi Complex are hereby informed through this public notice to remove all sorts of berm encroachments in front of their houses such as pucca structures, Gills, to walls, barbed wire fencing and hedges etc. by Sunday the 14th March, 1999, otherwise the same will be got removed at their risk and cost, for which they will be completely responsible. Sd/-Estate Officer, HUDA, PanchkulaAll Residents Welfare Association of Panchkula and Mansa Devi Complex
The petitioners have averred that the residents of various sectors of Panchkula have erected temporary fences on the open spaces in front of their houses, laid lawns and grown trees for protecting themselves against air pollution, hoards of cattle, stray dogs, pigs etc. and also to prevent growth of hazardous plants like parthenium etc. Their grievance is that the respondents are forcibly removing these fencings in the garb of removing encroachments, although civic amenities have not been provided to the residents in accordance with the provisions of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the Act') and the rules framed thereunder and no policy has been framed by the H.U.D.A. for preventing the entry of the herds of cattle and other animals in the residential sectors of Panchkula. The contention of the petitioners is that if the respondents are not restrained from removing the fences and hedges, the grassy lawns and trees planted by them will be destroyed by cattle, dogs, pigs straying in the streets and this will deprive them of clean air and environment affecting their right to life guaranteed under Article 21 of the Constitution of India.
3. In the written statement filed by them in C.W.P. No.4148 of 1999, the respondents have averred that the petitioners, who were given possession of the plots allotted to them in accordance with the provisions of the Act, do not have the right to encroach upon H.U.D.A. land which has been left vacant for the benefit of general public. However, they have encroached upon the open spaces, road berms and road reservation by raising pucca structures and by putting up grills and fences. According to the respondents, this not only hinders free movement of people but also operates as traffic hazard. They have further averred that the road berms are meant to be used for laying down service facilities such as sewerage pipes, water pipes, telephone and electric lines and other essentials for the benefits of people of the area. The respondents have averred that due to encroachments made by the petitioners and other plot owners, the pedestrians cannot use the road reservations and berms and they are always subjected to the danger of being hit by the fast moving vehicles. It has also been averred that the excessive use of water in maintaining such lawns and hedges results in the scarcity of water and the spilled water causes damage to the road.
4. Before adverting to the contentions urged by the learned counsel, we deem it proper to mention that during the pendency of the writ petitions, Shri R.S. Mittal, learned counsel for the petitioners produced 28 photographs showing the nature of fencings done by the residents and the status of such fencings after some of them were removed by the respondents. Shri R.S. Chahar produced two photo albums, one of which contains photographs showing the nature of encroachments made by the residents in different sectors of Panchkula. The other album contains the photographs taken after removal of encroachments from 138 sites. A cursory glance at the photographs produced by the learned counsel for the parties shows the plot owners have erected pucca fencings up to the edges of metalled roads and in most of the cases no space has been left for use by the pedestrians. In some cases, the width of the road has been reduced to such an extent that even two vehicles cannot pass through simultaneously. These fences obstruct clear view of the roads. Some of the photographs show that electric and telephone poles have also been taken inside the boundaries of unauthorised pucca fences erected on the public land.
5. The first contention urged by Shri. R.S. Mittal is that the action taken by the respondents to remove the fences erected by the plot owners is violative of their fundamental right to life guaranteed under Article 21 of the Constitution of India and, therefore, the impugned notices should be quashed and the respondents should be restrained from continuing the drive under taken by them to remove the fences and the hedges erected on the public land in front of the residential plots. Elaborating his argument, Shri Mittal submitted that the petitioners and other plot owners are entitled to live in an environment free from air and other types of pollutions therefore, the fences erected by them cannot be treated as encroachments on public land. He submitted that the fences erected by the residents are also necessary for protecting them from stray catties and unscrupulous members of public. Shri Mittal asserted that the respondents have not taken any step to check the movements of herds of cattle in the residential sectors and the growth of hazardous weeds like parthenium and, therefore, the plot owners are entitled to erect fences etc. as of right. The second contention put forth by Shri Mittal is that in terms of Section 13 of the Act, the respondents are duty bound to provide amenities like open spaces, landscape, parks etc. According to the learned counsel, the word 'amenity' defined in Section 2(a) of the Act would include protection of the trees planted by the plot holders on the open spaces and, therefore, the respondents cannot remove the same. He then argued that the respondents are also bound to take all steps to provide clean environment to the residents and for this purpose, they should be directed to prevent the entry of the herds of cattle and also remove the hazardous plants which have grown in different parts of Panchkula.
6. Shri R.S. Chahar, learned counsel representing the respondents in C.W.P. No.4148 of 1999 argued that the petitioners and other plot owners have encroached upon the open spaces, road reservations and road berms in the garb of erecting fences to protect the grassy lawns and trees planted by them on public land and the Court must not protect such encroachments. He submitted that a large number of residents of Panchkula have, in the name of beautification of the open spaces outside their houses, grabbed the public land which is meant to be used for providing essential services like laying of sewerage and water pipes, electricity and telephone lines and widening of road which can be used by the pedestrians. He further submitted that the fences erected by the petitioners and others operate as permanent hindrance in the free flow of traffic and many accidents have been caused because the people using vehicles could not get a clear view of the cross-sections and road bends. Learned counsel submitted that the petitioner, who have encroached upon the public land and are using it for their private purposes in the name of clean environment and protection from others should not be heard to make a complaint against the removal of illegally erected structures.
We have thoughtfully considered the respective submissions.
7. The State of Haryana was created w.e.f. 1.11.1966. Immediately thereafter, the government initiated steps for development of the rural as well as urban areas of the State. In the course of implementation of the policies formulated by it for rapid development of the urban areas, it was felt by the government that the involvement of more than one departments obstructed the developmental activities. Therefore, it decided to set up an Urban Development Authority which could be entrusted with the task of undertaking comprehensive development of the urban estates. For this purpose, the legislature of the State of Haryana enacted 'the Act'. Chapter-I of the Act contains general provisions including the definitions. Chapter-II contains provisions relating to establishment of the Authority, its objects and functions etc. Chapter-III provides for acquisition and disposal of land. Chapter-I V comprises of provisions which empower the competent authority to evict unauthorised persons from the premises of the Authority and also to recover damages as arrears of land revenue. Chapter-V deals with finance, accounts and audit. Chapter-VI contains provisions relating to power of the Authority to require local authority to assume responsibility for providing amenities in certain cases and control by the State Government. Chapter-VII contains provisions relating to inspection and penalties and Chapter-VIII contains miscellaneous provisions. Section 53 of the Act, which forms part of Chapter-VIII , empowers the State Government to make rules for carrying out the purpose of the Act. In exercise of the power vested in it under Section 53, State Government has framed rules and regulations including the following:
i) Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978.
(ii) Haryana Urban Development Authority (Erection of Buildings) Regulations, 19,79.
Section 2(a), (g) and (t) and Sections 13 and 18 of the Act, which have bearing on the claim of the petitioners, read as under:
'Section 2(a), (g), (j) and (t) of the Act.
2(a) 'amenity' includes roads, water supply, street lighting, drainage, sewerage, public works, tourist sports, open spaces, parks, landscaping and play fields, and such other conveniences as the State Government may, by notification, specify to be an amenity for the purpose of this Act.
xx xx xx(g) 'Development' with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change, in any building or land and includes re-development:
xx xx xx(j) 'engineering operations ' include the formation laying out of means of access to order the laying out of means of water-supply, drainage, sewerage or of electricity cables or lines or of telephone lines;
xx xx xx(t) 'public place ' means any place Or building which is open to the use and enjoyment of public whether it is actually used or enjoyed by the public or not, and whether the entry is regulated by any charge or not;
xx xx xxSection 13 of the Act.
13. Objects and functions of Authority.- The objects of the Authority shall be to promote and secure development of all or any of the areas comprised in an urban area and for that purpose, the Authority shall have the power to acquire by way of purchase, transfer, exchange or gift, hold, manage, plan, develop and mortgage or otherwise dispose of land and other property, to carry out by itself or through any agency on its behalf, building, engineering, mining and other operations, to execute works in connection with supply of water, disposal of sewerage, control of pollution and any other services and amenities and generally to do anything, with the prior approval, or on direction, of the State Government, for carrying out the purposes of this Act.
xx xx xxSection 18 of the Act.
18. Power to evict persons from premises of Authority.- (1) If the Collector is satisfied -
(a) that any person authorised to occupy any premises of the Authority has -
xx xx xx(b) that any person is in unauthorised occupation of any premises of the Authority, the Collector may, notwithstanding anything contained in any law, for the time being in force, by notice served by post of by affixing copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be prescribed, order that, that person as well as any other person, who may be in occupation of the whole or any part of the premises, shall vacate them within a period of thirty days from the date of the service of the notice.
Provided that no such order shall be passed unless such person has been afforded an opportunity to show cause as to why. such order should not be made.
(2) If any person refused or fails to comply with an order made under Sub-section(1), the Collector may evict that person from, and take possession of, the premises and may for that purpose use such force as may be necessary.
(3) If a person, who has been ordered to vacate any premises under Sub-clause (i) or Sub-clause (iii) of Clause (a) of Sub-section (1), within a period of thirty days of the date of service of the notice or. such longer time as the Collector may allow, pays to the Estate Officer the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the Collector, as the case may be, the Collector shall, in lieu of eviction such person under Sub-section (2), cancel his order made under Sub-section(1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him.'
A careful analysis of the provisions of the Act and the Regulations framed thereunder with particular reference to those which have been reproduced about shows that H.UD.A. is entitled to dispose of the residential, commercial and industrial plots with or without development. After taking possession, the allottee has to erect the building within the period stipulated in the letter of allotment and in accordance with the sanctioned building plan. The 1979 Regulations which deal with the erection of buildings require the allottee to strictly abide by the provisions of law and conditions of allotment. This necessarily means that the allottee has to erect building only on the plot allotted to him/her. Moreover, there is nothing in the Act and the Regulations which may indicate that the persons to whom plots are allotted in the urban estates have the right to occupy or encroach upon the open spaces or public land outside their plots. Such spaces and land are left for enjoyment by the general public and for laying the means of water supply and sewerage, electricity and telephone lines etc. Section 13 empowers the competent authority to remove encroachment from the open spaces and public land. This is precisely that the respondents have done. Therefore, we do not find any rhyme or reason to restrain the respondents from removing the encroachments made by the petitioner on H.U.D.A. land.
8. The argument of Shri Mittal that the temporary fences erected by the petitioners should be allowed as a necessary concomitant of their right to life, which includes the right to get pollution free air and protection against growth of hazardous plants and weeds and the cattle menace appears to be based on a perverted thinking of 'the haves' of the society that for the purpose of enjoyment of their right to life they can encroach upon public property and raise constructions in the form of fences etc. causing inconvenience to the general public. In our considered view, there is no legal or other justification to exercise writ jurisdiction of the High Court to confer legitimacy on such encroachments either in the name of beautification or in the garb of enjoying the extended scope of the right to life. Acceptance of such plea will not only frustrate the object of planned development of the Urban estates but also encourage similar encroachments of public property by the affluent class of people leadings to chaos in the society.
9. The argument of Shri Mittal that the respondents are bound to provide amenities to the plot holders and their failure to do so entitles the allottees to erect fences etc. sounds attractive but we cannot accept the same and legitimise the land grabbing campaign of the petitioners and others. The word 'amenity' defined in Section 2(a) of the Act includes roads, water supply, street lighting drainage, sewerage, public works tourist spots, open spaces, parks, landscaping, play fields etc. The expression 'engineering operations' includes the formation or laying out of means of access to a road or the laying out of means of water supply, drainage, sewerage or of electricity cables or of telephone lines. The phrase 'public place' means any place or building which is open to the use and enjoyed by the public or not and whether the entry is regulated by any charge or not. However, as the petitioners have neither pleaded nor any evidence has been placed on the record of the writ petitions to show that the respondents have not provided means of water supply, drainage, sewerage, street lighting, open spaces and parks in different sectors of Panchkula, we do not find any valid reason to hold that the respondents have failed to provide amenities to the residents of Panchkula. The photographs produced by the counsel for the parties show that the sectors in which the petitioners are living are well developed with fully carpeted roads. Open spaces and parks have also been provided in different sectors and in fact, the unauthorised encroachments made by the petitioners and others are creating obstruction in the free flow of traffic and depriving the pedestrians of their right to use the road reservations and berms and open spaces, Shri Chahar has rightly pointed out that due to the unauthorised encroachments made by the petitioners a number of accidents have taken place in which precious human lives have been lost.
10. On the basis of above discussion, we hold that the petitioners have failed to make out a case for issuance of a direction by the Court restraining the respondents from enforcing the provisions of the Act in general and Section 13 thereof in particular. However, in order to obviate the grievance of the plot holders that they are being discriminated and also with a view to prevent similar encroachments in future, we deem it appropriate to give certain directions.
11. In the result, the writ petitions are dismissed subject to the following-directions:
(i) The Government of Haryana and the Chief Administrator, H.U.D.A. should get an enquiry conducted into the cause of encroachments of open spaces made by the residents of Panchkula in the last 20 years and fix the responsibility of the officers who have, by their actions and omissions, allowed such encroachments;
(ii) a status report regarding the removal of encroachments on public lands shall also be submitted before the Court on July 12, 1999 so that citizens may not feel that they have been discriminated and the Court may be able to know whether the authorities of HUDA have adopted the policy of pick and choose while removing encroachments on public lands;
(iii) the malba of encroachments removed by the H.U.D.A. in the drive undertaken in 1999 shall be removed from all places within a period of one month and a report to this effect submitted to the Court on July 12, 1999.
(iv) the competent authority shall be free to recover the cost of removing encroachments as well as malba from the persons who may be found to have made encroachment; and
(v) the Chief Administrator and the concerned authorities of the H.U.D.A. should formulate a policy for removing the congress grass and other hazardous wild growth from the entire area of Panchkula and submit the policy before the Court on the, next date of hearing.
This case be listed before the Court on 12.7.1999 along with the reports which the respondents are required to submit in pursuance of the directions herein above.