DATE OF ORDER:
27 December 2022
JUDGE(S):
Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri
PARTIES:
Petitioner: Jammu Municipal Corporation th. Joint Commissioner (A) Municipal Corporation, Town Hall Jammu.
Respondent: Mohd. Nadeem and anr.
SUBJECT
The High Court ordered the J&K Government and Jammu Municipal Corporation to make sure that no structure of any kind is allowed or permitted to be raised on a public road, street, pathway, or lane after taking serious note of the increasing encroachments on public roads and streets in Jammu and Kashmir.
If such a structure has been built or rebuilt within the last five years, it must be demolished right away, and the Deputy Commissioners and Superintendents of Police in that area must be held accountable for any new encroachments, according to the division bench of Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri.
The court ruled that the Deputy Commissioners of Union Territories of J&K and Ladakh and all Senior Superintendents of Police involved must receive copies of the ruling to comply.
It further stated that any violation or disobedience by its directors would be interpreted as a deliberate and purposeful effort to undermine the authority of this Court and would constitute criminal contempt.
IMPORTANT PROVISIONS
Section 7 of JAMMU AND KASHMIR CONTROL BUILDING OPERATIONS ACT, 1988(COBA)
Order of demolition of buildings in certain areas
(1) The Authority shall issue a written notice requesting justification within 48 hours as to why the building should not be altered or demolished as may be deemed necessary to remove the contravention when the erection or re-erection of any building has begun, is being carried out, or has been completed without the permission referred to in section 4 or in violation of any condition subject to which any permission has been granted.
(3) If the person to whom the notification has been provided refuses or does not provide justification within the time frame described in subsection (I), or if they have recovered. The Authority shall by order direct the person to demolish, alter, or pull down the building or part thereof so far as is necessary to remove the contravention within a period not to exceed five days as may be specified in the order if the person fails to comply with the direction, and if the Authority is satisfied that the erection or re-erection of the building is in contravention of the provisions of this section.
Section 13 of COBA: Appeals- Within seven days of the date of the aforementioned order of the Authority, an appeal against that order may be made to the person the Government may, by the announcement in the Government Gazette, appoint on his behalf (hence referred to as "the Appellate Officer"). A copy of the order appealed need not be included with the memorandum of appeal.
Section 230 of the J&K Municipal Corporation Act, 2000:Prohibition of structures, fixtures or deposits, or things in streets
BRIEF FACTS
- The residents of Mohalla Ustad Jammu filed a complaint through Mohd. Salim Malik, a meat vendor, leges, among other things, that Mohd. Saleem, Tahir Ustad, and Saleem Mali had installekhas by encroaching on the public street. Respondent No. 1 received a show cause notice dated 18.03.2009 under Section 7(1) of the COBA.
- Because the petitioner was dissatisfied with respondent No. 1, the show cause notice was followed by the final demolition notice under Section 7(3) of the COBA. Respondent No. 1 challenged this notice before the learned Tribunal under Section 13 of the COBA. The petitioner responded by providing a detailed report on the infractions committed by respondent No. 1.
- The learned Tribunal quashed the demolition notice under Section 7(3) of the COBA primarily because respondent No. 1 was 100% disabled and the petitioner had already accepted the monthly rent of the Khokha, so respondent No. 1 was directed to deposit the monthly rent at the Municipality rates.
QUESTIONS RAISED
Is the Right to encroach upon a public lane a fundamental or legal right?
ARGUMENTS ADVANCED BY THE APPELLANT
- The Corporation challenged the order primarily because the respondent encroached on the public street/municipal lane and installed the Khokha without any permission or authority, as well as any right, title, or interest, in violation of the provisions of the COBA, its Regulations, as well as the prescribed building Bye-laws and Master Plan.
- It further claimed that the Khokha on a public thoroughfare causes trouble and irritation to the general public in the neighborhood who frequent the area because it was erected without the appropriate approval under Section 230 of the J&K Municipal Corporation Act, 2000.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The respondent, on the other hand, resisted the plea by claiming that he is 100% disabled as deaf and dumb, that he has been running the Khokha in question for more than twenty years, that it is his sole source of income, and that the corporation has already accepted a fee of Rs. 432/- from him for the use and occupation of the Khokha in question over a piece of land measuring 6′ X 2′ only.
ANALYSIS BY THE COURT
- The bench expressed total sympathy with the respondent because he is a specially-abled person with 100% handicap, and this likely is why the petitioner authority has allowed him to earn his living on an open area of public land.
- The bench, however, underlined that he cannot erect any structure, temporary or permanent, over the open space allocated to him to earn his living.
- The bench dismissed the appeal, stating that "the learned Tribunal has made a grievous error of law in determining that the petitioner-authority has accepted the monthly payment of Rs. 432/- from respondent No. 1 as the rent of the Khokha in question."
- Before dismissing the decision, the bench stated that encroachments have become a problem, particularly in J&K, and that all directives issued by the court from time to time to maintain order on public roads and streets have fallen on deaf ears of the responsible authorities.
- The court also stated that every individual has fundamental freedom to move, which cannot be violated in public areas. Encroachments on private property in general and public lanes or public streets cause a public nuisance, pose major traffic hazards, and jeopardize public safety, health, and convenience, according to the decision.
- Illegal constructions such as signboards and hoardings, as well as those on public property, public roads, and public spaces, obstruct the free flow of vehicles as well as the smooth movement of pedestrians. The court ruled that there is no legal or fundamental right to infringe upon a public street or lane and build anything there.
CONCLUSION
Given the above observation, the court concluded that Illegal constructions such as signboards and hoardings, as well as those on public property, public roads, and public spaces, obstruct the free flow of vehicles as well as the smooth movement of pedestrians. The court ruled that there is no legal or fundamental right to infringe upon a public street or lane and build anything there.
