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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPIL No.144 of 2017 .
Decided on: 04.10.2018 Court on its own motion ...Petitioner.
Versus State of H.P. & others. ...Respondents.
Coram The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice The Hon'ble Mr.Justice Ajay Mohan Goel, Judge Whether approved for reporting? No. For the petitioner: Ms.Jyotsna Rewal Dua, Senior r Advocate, as Amicus Curiae with Ms.Charu Bhatnagar, Advocate.
For the respondents: Mr.Ashok Sharma, Advocate General, with Mr.Ranjan Sharma, Ms.Ritta Goswami and Mr.Nand Lal Thakur, Additional Advocate Generals, for respondents-State.
Mr.Tara Singh Chauhan, Advocate, for respondent No.6 and 14.
Mr.Dushyant Dadwal, Advocate, for respondent No.8.
Mr.Rahul Mahajan, Advocate, for respondent-Indian Railways.
Mr.Anand Sharma and Mr.Karan Sharma, Advocates, for respondent No.11.
Mr.Aman Sood, Advocate, for
respondent No.12.
::: Downloaded on - 11/10/2018 22:56:21 :::HCHP
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Mr.R.K. Bawa, Senior Advocate, with Mr.Ajay Kumar, Advocate, for the applicant in CMP No.5863 of 2018.
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Mr.Suneet Goel, Advocate, for the applicant in CMP No.5755 of 2018.
Sanjay Karol, Acting Chief Justice (Oral) Learned Advocate General states that with the passage of time this petition has become infructuous for the encroachments over the railway line stand removed.
However, Mr.Rahul Mahajan, learned counsel, points out that two persons have yet not handed over the possession despite their undertaking furnished to this Court.
2. Mr.R.K. Bawa, learned Senior Counsel and Mr.Suneet Goel, learned Counsel, have explained the circumstances under which possession could not be handed over and as mutually agreed, on instructions received from their clients, time is extended upto 30.6.2019 to handover the possession.
3. The background leading to the present status is best reflected in our several orders, which we reproduce hereinunder:-
::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 3Order dated 19.09.2017:
By way of this petition, this Court takes suo motto cognizance of the issues which were subject matter of Civil Writ Petition No. 312 of 2017. All the respondents therein are impleaded as party-
.
respondents in the present petition.
Notice. Mr. Anup Rattan, learned Additional Advocate General accepts notice on behalf of respondents No. 1 to 5 and 7. Mr. Rahul Mahajan, learned Counsel accepts notice on behalf of respondents No. 8 and 10. Mr. Dushyant Dadwal, learned Counsel accepts notice on behalf of respondent No. 9. Mr. Anand Sharma, learned Counsel accepts notice on behalf of respondent No. 11. Mr. Aman Sood, learned Counsel accepts notice on behalf of respondent No. 12. Mr. Ashok Sharma, learned Assistant Solicitor General of India accepts notice on behalf of respondent No. 13.
Ms. Jyotsana Rewal Dua, Senior Advocate and Ms. Shalini Thakur, Advocate submit that they have no conflict of interest in continuing to assist the Court in these proceedings. As such, we request them to assist this Court as Amicus.
Mr. Rahul Mahajan, learned Counsel invites our attention to the affidavit filed by Mr. Susheel Kumar, Senior Divisional Engineer-II, in the office of Divisional Railway Manager, Northern Railways, Firozpur Division, indicating the following persons to be the encroachers of type A:
"1. Smt. Kamla Devi W/o Sh. Hari Ram, R/o Village Thakrdwara, Palampur.
2. Smt. Kamla Devi W/o Sh. Hari Ram, R/o Village Thakrdwara, Palampur.
3. Smt. Kamla Devi W/o Sh. Hari Ram, R/o Village Thakrdwara, Palampur.
4. Mr. Lekh Raj s/o Late Sh. Hari Ram, R/o Village Thakrdwara, Palampur.
5. Mr. Subhash Chand S/o Late Sh. Hari Ram, R/o Village Thakrdwara, Palampur.
6. Mr. Anuj Kumar Sood S/o Late Sh. Rattan Chand R/o Village Thakurdwara, Palampur.
7. Mr. Vijay Phailana S/o Sh. Amir Chand, R/o Village Thakurdwara, Palampur.
8. Mr. Raj Kumar S/o Sh. Karam Chand, R/o Village Thakurdwara, Palampur.
9. Mr. Balbir S/o Late Sh. Prem Chand, R/o Village Thakurdwara, Palampur.
10. Mr. Shammi S/o Late Sh. Prem Chand, R/o Village Thakurdwara, Palampur.
11. Mr. Onkar Chand Rana S/o Sh. Bhim Singh R/o Village Thakurdwara, Palampur."::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 4
We direct the Deputy Commissioner, Kangra to forthwith have all encroachments removed from Khasra Nos. 1631, 1632 and 1635, including the ones referred to hereinabove removed and file status report .
in this regard within two days.
Mr. Rahul Mahajan, learned Counsel has also drawn attention of this Court to the affidavit filed by Shri Shailendra Kumar, Senior Divisional Engineer-III in the office of Divisional Railway Manager, Ambala Cantt., indicating following encroachments on Kalka- Shimla Narrow Gauge Section:
"1. Near Jutogh Station by Secretary Mandir Committee.
2. Along Rly. Track near Jutogh St. by Sh. Sohan Lal.
3. Along Rly. Track near Jutog Station by Devender Kumar.
4. Along Rly. Track near Jutogh Station by Sh. R.C. Verma.
5. Along Rly. Track near Jutogh Station by Sh. Sant Ram.
r 6. Along Rly. Track near Jutogh Station by Sh. Dayanand.
7. Below Jutogh Station By Smt. Leelawati.
8. Below Jutogh Station by Sh. Krishan Kr.
9. Below Jutogh Station by Sh. Umed Ram.
10. Below Jutogh Station By Sh. Baboo Ram.
11. Below Jutogh Station By Sh. Sagar Dass.
12. Below Jutogh Station By Smt. Surjit Kaur.
13. below Jutogh Station By Sh. G.S. Gulati.
14. In Soghi yard (SML end) by Shiva Coal Co.
15.Near Goods Shed in Shimla by M/s Krishna Coal Co.
16. Near Goods Shed in Shimla by M/s Graphite Coal Co.
17. Near Goods Shed in Shimla by M/s Punjab Coal Co.
18. Kashmir Coal Co. in Shimla."
He further invites our attention to the affidavit filed by Shri Fakhruddin Ali Ahmad, Senior Divisional Engineer-IV in the office of Divisional Railway Manager, ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 5 Ambala Cantt., indicating the following encroachments on Una-Himachal Section:
"1. 114/6-7, Nangal Dam-Una-Himachal, Temple.
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2. 118/4-5, Nangal Dam-Una-Himachal, Temple.
3. 11/8-9, Nangal Dam-Una-Himachal, Temple with Gausala.
4. 119/1-2, Nangal Dam-Una-Himachal, Temple.
5. 11/4-6, Nangal Dam-Una-Himachal,
Kusht Ashram with temple and
school.
6. 124/1-2, Una-Himachal-Chararu-Takrala,
School.
r 7. 126/2-3, Una-Himachal-Chararu-Takrala,
Temple.
8. 141/203, Chararu Takrala-Amb-Andoura, Boundary Wall of Pvt. Building.
9. 141/7-8, Chararu Takrala-Amb-Andoura, Pvt. Building."
We further direct Deputy Commissioners, Shimla, Solan and Una to forthwith have the abovementioned encroachments removed and also file status report in this regard within two days.
If necessary, encroachments be removed with the aid of police and all concerned Superintendents of Police are directed to provide adequate police force.
We clarify that demolition of unauthorized structures(s) / removal of encroachments shall be on the basis of demarcation already carried out by the revenue authorities. Needless to add, cost incurred for undertaking exercise of removal of encroachments shall be recovered from the encroachers as arrears of land revenue.
List on 22nd of September, 2017. Copy dasti."
::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 6Order dated 22.09.2017:
"UNA SECTOR Mr.J.K. Verma, has placed on record affidavit of the Deputy Commissioner, Una. He further states that .
except for one, all encroachments, as pointed out in our order dated 19th September, 2017, stand removed.
CMP No.8281/2017 Mr. Mohit Thakur, Advocate, under instructions from Prithvi Singh Rana, President of the Shiv Mandir Jan Kalyan Sabha Malahat near Peer Nighah Road, Una, requests that the committee of residents of the area has constructed a temple, on the land of the Indian Railways. He further states that the Committee be given adequate time for shifting the temple to another place. As such, they request for time to handover the vacant and peaceful possession of the said area to the Indian Railways on or before 30th June, 2018 and be exempted from paying any use and occupation charges. We take on record the undertaking so made by the President of the Temple, in issued, who is present in Court.
r Independent of the same, we permit the Committee to approach the authorities concerned for regularization of their possession by way of lease, which they shall do within a period of four weeks.
Mr. Rahul Mahajan, Advocate, states that representation, if any, made shall be considered and decided in accordance with law within a period of three months.
It stands clarified that in the event of authorities deciding the said representation favourably, the applicants shall not be bound by their undertaking.
We are informed that sanctum sanctorum has not yet been demolished by the authorities and only the peripheral verandah stands demolished.
Application stands disposed of.
PATHANKOT - JOGINDERNAGAR SECTOR We have also been informed that encroachment on the land of Indian Railways on Pathankot-
Jogindernagar track stand removed.
Let the Deputy Commissioner, Kangra file an affidavit to this effect before the next date of hearing.
Fresh status report be also filed by the railway authorities pertaining to the alleged encroachments referred to at page 173 of the paperbook.
KALKA - SHIMLA SECTOR The Deputy Commissioner, Shimla has placed on record his affidavit, wherein it stands clarified that premises at point Nos.15 to 17 are under the ownership of the State of Himachal Pradesh and not ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 7 the Railways. Be that as it may, the fact of the matter is that these occupiers are not owners of the land.
Insofar as the encroachment at Serial No.5 is concerned, from the affidavit it is clear that the tenants have been put to notice to vacate the property. We .
hope and expect the Deputy Commissioner, Shimla to take possession thereof within a reasonable period of time, which shall not be later than 30th November, 2017.
CMP Nos. 8220, 8221, 8222 and 8278 of 2017 Mr. Suneet Goel and Dr. Lalit Sharma, Advocates, invite our attention to the judgment dated 12th April, 2017, passed by this Court in CWP No.336 of 2003, titled as Union of India vs. M/s Punjab Coal Company. This Court has only held the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 not to be applicable. One cannot forget that this Court has been consistently directing the authorities to remove all illegal and unauthorized encroachments over the Railway land.
Insofar as occupiers, being the private applicants, are concerned, Mr. Suneet Goel, Advocate, points out that they have been licensees of the Railways. However, the fact of the matter being that with the expiry of such period, their possession is no longer authorized.
At this stage, Mr. Suneet Goel and Dr. Lalit Sharma Advocates, under instructions from their clients, make the following statement:
(a) Applicants do not dispute the title of the property, which is that of the Indian Railways.
(b) The status of the applicant now is that of an unauthorized occupant.
(c) There is no dispute with regard to the area under their occupation.
(d) Applicants undertake to handover vacant and peaceful possession of the said area to the Indian Railways on or before 30th June, 2018.
(e) In the event of any breach thereof, the applicants shall be deemed to have committed contempt of this Court.
(f) Applicants undertake to pay use and occupation charges till the time possession is handed over to the Railways. However, if possession is handed over before 31.12.2017, there shall be no liability.
Mr.Shailendra Kumar, Senior DEN-3, Ambala Division, who is present in Court, states that Railways ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 8 shall have no objection to such request made by the applicants.
Ordered accordingly. Undertaking of the applicant to be allowed, through their learned counsel is accepted and taken on record, which fact the .
learned counsel states already stands communicated to the applicants. However, let the applicants file their personal affidavits for which purpose alone, the matter be listed on 17th October, 2017. If, however, applicants handover vacant and peaceful possession of the premises to the Indian Railways on or before 31st December, 2017, applicants shall not be liable to pay any use and occupation charges In view of the aforesaid, we clarify our order dated 19th September, 2017 to the extent that no action shall be taken against the applicants till 30th June, 2018 and the said order qua them shall be kept in abeyance. Applications stand disposed of.
Officers need not remain present in Court, unless so directed otherwise.
List on 17th October, 2017.
Copy dasti."
Order dated 24.10.2017:
"CMP No. 8730 of 2017.
Response be positively filed within two weeks. Rejoinder within one week thereafter.
Registry is directed to prepare separate file of all the applications.
From the affidavit dated 16.10.2017 filed by Senior Divisional Engineer-II, Northern Railway Forozpur Division at Forozpur, it is evident that on the Pathankot-Jogindernagar Sector there are 17 cases of encroachments over railway property, out of which in 12 cases encroachment stands removed and possession is now with the railway authorities.
Mr. Rahul Mahajan states that one more encroachment in the case of Sh. Pritam Chand stands removed and possession of the land is with the railway authorities. Insofar as unauthorized possession of another encroacher Sh. Puran Chand is concerned, there is an ex parte decree in his favour and now steps of filing an appeal stand initiated. Let further status report with respect to the said encroachment be filed within a period of three weeks. Also three encroachers are outside the State of H.P.
It appears that averments made in the last five lines of para 4 of the said affidavit are not in consonance with the Indian Railway Works Manual Chapter VIII Clause 807, 808 and 809. Let an affidavit ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 9 indicating the record maintained in compliance of the said Manual and encroachment on the railway track in terms thereof, if any, be filed. We direct Regional Engineer of the concerned division to file his personal affidavit within a period of three weeks.
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Let affidavit with regard to the status of encroachments, if any, on Kalka-Shimla and Una- Himachal (Talwara) Sector be filed within a period of two weeks from today.
We also direct respondent No.11 to file a fresh status report within a period of four weeks.
List on 14.11.2017."
Order dated 28.11.2017:
"On the basis of record, emanating from CWP No. 312 of 2017, titled as Rajesh Kumar Sood Vs. State of H.P., this Court vide order, dated 19th September, 2017 directed the Registry to register a separate petition, which being the instant petition, was registered as CWPIL No. 144 of 2017. What prompted the Court to register a separate CWPIL, was the importance and significance of the issues, involving larger public interest, canvassed by the writ petitioner, who subsequently, for reasons best known to him, sought to withdraw the petition.
2. In the original petition, the issue primarily pertained to alleged encroachments, carried out by different persons over public land belonging to the railway authorities and more specifically along the railway tracks within the State of Himachal Pradesh.
3. Taking note of the fact that in Himachal Pradesh, there are three railway tracks, one of which is declared as a World Heritage site by UNESCO, this Court, with the registration of the present petition, on 19th September, 2017, issued certain directions for removing encroachments over the railway property.
4. We were concerned with three railway tracks, namely: (i) Kalka-Shimla Heritage Track ; a UNESCO World Heritage site ; (ii) Pathankot-Jogindernagar railway track, again a Century old railway track and (iii) Nangal-Talwara track.
5. Happily, large number of encroachments already stand removed and unauthorized structures demolished. Some work in this regard is still pending.
6. Further, during the course of hearing of the instant petition, we were informed that inspection for renewal of Heritage status of Kalka-Shimla railway line as World Heritage UNESCO Site is likely to take place in the near future, as renewal has to take place within one year from now. We were also informed that there ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 10 were certain places on this track where sewage/waste water was being openly thrown. In this background, on 14th November, 2017, we passed the following order :-
"Mr. Rahul Mahajan, learned counsel for Indian .
Railways states that on Kalka-Shimla Track there are certain places where sewage/waste water from private houses is being openly thrown on the railway track. Let respondent No. 10-Divisional Manager file his personal affidavit pointing out such places within a week. Let the said Officer remain present in the Court on 21.11.2017.
We are also informed that the inspection for renewal of the Heritage status of the Kalka-Shimla Railway Line as a World Heritage UNESCO Site is likely to take place in the near future and within one year from today. In the affidavit, let respondent No. 10- Divisional Manager explain the steps taken for meeting out the requirements of renewal."
7. On the next date of hearing, we were informed by the railway authorities that despite written communication(s), no action was taken by the authorities, constituted under the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act) and other environmental laws of the land. Consequently, we impleaded the H.P. State Pollution Control Board as a party and issued notice.
8. Mr. Rahul Mahajan, Advocate, also stated that at Parwanoo, an industrial township, effluents were being released by certain industries/polluters in open streams. Discharge of such effluents is causing severe damage to the railway property, more so bridges which are century old.
9. In response thereto, Mr. Tara Sigh Chauhan, Advocate, learned counsel for the Board, has today handed over to us an affidavit, revealing shocking state of affairs, vis-a-vis the functioning of the authorities under the Act and implementation of environmental laws. There is neither any Sewerage Treatment Plant nor any Solid Waste Processing Unit at Parwanoo. Also, there is no mechanism to process the effluents. At this point of time, we need not say more, save and except, that only on the prodding of the Court, the Board rose from slumber and issued notice for disconnection of electricity of one of the stake holders. We are informed that the duty cast under the environmental laws is actually that of Municipal Council, Parwanoo, to whom notice of disconnection of electricity already stands issued.
10. At this stage, Mr. Rahul Mahajan, Advocate, informs that insofar as the specific site of the bridge, ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 11 which is likely to be effected as a result of effluent being openly discharged by the industrial units, there are four more polluters, namely (i) Daljeet Electroplanting; (ii) Aadhunik Agro Pvt. Ltd ; (iii) Shivalik Industrial Limited and (iv) Universal Power .
Product. This is as per instructions imparted by Mr. D.K. Bajan, ADEN, Shimla, Northern Railways.
11. Under these circumstances, we direct the Secretary, H.P. Pollution Control Board to forthwith have the site inspected and if necessary, issue orders for disconnection of electricity and water connection of these polluting units.
12. We implead H.P. State Electricity Board, through its Secretary, Kumar House, Shimla as party respondent. Mr. Vivek Sharma, Advocate, waives notice.
13. Mr. Satyen Vaidya, learned Senior Advocate, states that with the orders being issued by the Pollution Control Board, electricity of the units shall be disconnected forthwith. Mr. Anup Rattan, learned Additional Advocate General, states that water connection shall also be disconnected.
14. r Mr. Shrawan Dogra, learned Advocate General, states that all assistance shall be rendered by the district administration, including deployment of police force, if so required.
15. It is not in dispute before us that within the territorial limits of Municipal Council, Parwanoo, there is neither a sewage treatment plant nor any mechanism for processing and dealing with municipal solid waste.
16. Mr. T.S. Chauhan, Advocate, invites our attention to the fact that since the year 2015, Pollution Control Board has been taking up the issue with the authorities, but the fact of the matter being that at the ground level, nothing has been done and things have remained as it is.
17. At this stage, Ms. Seema Guleria, Advocate, who is otherwise assisting the Court as an Amicus Curiae in other matters, states that new technology (Black Hole) is available to deal with solid waste, and that too, at low cost and in an efficient manner. And all this, without segregating the waste material. She states that the entrepreneur possessing such technology has approached the authorities, highlighting that certain States have already used the same. Well, at this stage, we do not want to comment about the feasibility thereof, but definitely it requires consideration of the authorities and as such, we leave it open for them to do so at the earliest.
::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 1218. We direct the Secretary (Urban Development) to file a separate affidavit dealing with the issue, more specifically the mechanism which can be provided on urgent basis in dealing with municipal solid waste at Parwanoo.
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19. Since Parwanoo is the first industrial township of the State and Gateway to the State of Himachal Pradesh, we are certain that sold waste and sewage cannot be allowed to be thrown in the open and kept unprocessed. As such, we deem it appropriate to segregate this issue and direct registration of a separate CWPIL to exclusively deal with the same. Registry to take necessary action.
20. The following shall be impleaded as party- respondents in the same:-
1. State of Himachal Pradesh through Secretary (Urban Development) to the Government of Himachal Pradesh, Shimla.
2. Principal Secretary (Industrial) to the Government of Himachal Pradesh, Shimla.
3. Principal Secretary (Urban Development) to the Government of Himachal Pradesh, Shimla. r 4. Principal Secretary (Irrigation & Public Health) to the Government of Himachal Pradesh, Shimla.
5. Pollution Control Board, through its Member Secretary, Himachal Pradesh, Shimla.
6. Union of India, through its Secretary (Environment), Government of India, New Delhi.
7. Northern Railway through its Divisional Manager, Ambala (Haryana).
8. Himachal Pradesh State Electricity Board, through its Secretary, Kumar House, Shimla.
9. Deputy Commissioner, Solan, District Solan, Himachal Pradesh.
10. Municipal Council, Parwanoo, through its Executive Officer, District Solan, H.P.
11. Engineer-in-Chief (I.P.H.), U.S. Club, Shimla.
21. Notice. Mr. Anup Rattan, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No.1,2,3,4,9 & 11; Mr. Tara Singh Chauhan, Advocate, waives notice on behalf of respondent No.5; Mr. Ashok Sharma, learned ASGI, assisted by Ms. Sukarma Sharma, Advocate, on behalf of the Union of India-respondent No.6; Mr. Rahul Mahajan, Advocate, on behalf of Indian Railways- respondent No.7; and Mr. Vivek Sharma, Advocate, on behalf of H.P. State Electricity Board-respondent No.8. Notice to M.C. Parwanoo. Service to be effected through Secretary, H.P. Pollution Control Board.
22. We request Ms. Jyotsna Rewal Dua, learned Senior Advocate, to also assist as an Amicus Curiae in the same. Orders, dated 14th November, 2017, 21st ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 13 November, 2017, 27th November, 2017 as also present order alongwith the affidavit filed by the Pollution Control Board shall be placed on the file of this petition. Registry to supply paper book, complete in all respects, to all learned counsel by 29th November, .
2017.
23. Similarly, on the issue of renewal of Heritage status of the Kalka-Shimla Railway line as World Heritage UNESCO Site, we direct the Registry to separately register a fresh petition. On our request Mr. B.C. Negi, learned Senior Advocate, and Mr. Arjun K. Lall, Advocate, have agreed to assist in this petition as Amicus Curiae. The following shall be impleaded as party-respondents:-
1. Union of India, through its Secretary (Environment), Government of India, New Delhi.
2. Ministry of Railways, through its Secretary, Government of India, New Delhi.
3. State of Himachal Pradesh through Chief Secretary to the Government of Himachal Pradesh, Shimla.
4. Principal Secretary (Tourism) to the r Government of Himachal Pradesh, Shimla.
5. Director (Tourism), Government of Himachal Pradesh, Shimla.
6. Northern Railway, through its Divisional Manager, Ambala, (Haryana).
24. Notice. Mr. Ashok Sharma, learned ASGI assisted by Ms. Sukarma Sharma, Advocate, appears and waives service of notice on behalf of U.O.I.-respondents No.1&2; Mr. Anup Rattan, learned Additional Advocate General, on behalf of respondents No. 3 to 5; and Mr. Rahul Mahajan, Advocate, on behalf of respondent No.
6. List on 1st December, 2017. ."
Order dated 09.01.2018:
"CMP Nos. 360, 8731, 8762, 9535, 9536, 10847 of 2017 This is in continuation of our orders, dated 15th May, 2017, 3rd July, 2017, 24th July, 2017, 31st July, 2017, and 4th September, 2017, passed in CWP No. 312 of 2017, titled as Rajesh Kumar Sood Vs. State of H.P. and order, dated 22nd September, 2017 passed in the instant petition i.e. CWPIL No. 144 of 2017.
2. Pursuant to the aforesaid orders, the present applicants, filed undertaking(s) agreeing to hand over the vacant and peaceful possession of the premises in his/their possession on or before 30th June, 2018. We ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 14 had clarified that if the petitioners were to hand over possession before 31st December, 2017, they would be absolved from the liability of a payment of amounts towards rent/lease money/occupation charges, so claimed by various authorities. This for the reason that .
for decades no action was taken by the authorities and the possessors had agreed to handover land under their possession.
3. The said undertakings, in terms of the order, are on record.
4. We are informed that one such occupant, handed over possession, in terms of undertaking, recorded in order, dated 22nd September, 2017. However, the railway authorities did not cordon off the said area, so vacated by the applicant, with the result that it has now become a dumping ground. There is none to check the same, with the result that it has also become a source of health hazard. In fact, it is a nuisance.
5. In terms of the present applications, some of the applicants, who are still in possession of the area in his/their occupation and are bound in terms of our order, dated 22nd September, 2017, have offered to redevelop the vacated land at their own cost and expense, subject to the satisfaction and supervision of the railway authorities. Such development, according to the applicants, has to be strictly in accordance with the Municipal Laws.
6. As per the railways, such developmental activity can take place only by them and not by private person(s).
7. We cannot be oblivious of the fact that possession of the premises in question came to be handed over to railways only pursuant to the directions issued by this Court in writ petitions, referred to supra. For decades, authorities did not take any action worth its name in this regard. Be that as it may, we are of the considered view that interest of justice would be best served if a direction is issued to the railway authorities to either develop the said land of its own or through the applicants or on the basis of build, operate and transfer basis. The land cannot be allowed to lie unused, for it would further become a source of nuisance to the residents of the area. In fact, development would not only generate revenue but also enhance the value of the property. It can be put to appropriate public use.
8. As such, we dispose of all these applications with the following directions to the railway authorities:-
::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 15(a) Develop the land either of its own or on Built, Operate and Transfer basis, with or without the applicants/possessors, as the case may be ;
(b) In the event of the site being developed either way and the property being put to use other than for .
personal use of the railways, all the applicants/possessors who have already vacated the land, shall have preferential right of allotment of the space in the property, provided of course, subject to the payment of such dues as the parties would mutually determine;
(c) How best the land is to be utilized is to be considered by the railway authorities, but then they cannot allow the land to be kept unused. As such, we direct the railway authorities to take decision positively within a period of two months from today.
9. Insofar as the averments made in the application being CMP No. 10847 qua alleged unauthorized encroachment by Gurmeet Singh and Harnam Kaur are concerned, if that be so, we direct the railway authorities to take appropriate action, in accordance with law within a period of two weeks. We clarify that it shall be open for the railway authorities to take action on lines similar to the one, which we had directed, against the present applicants. Also, if the railways find any difficulty, they can approach the District Authorities seeking assistance/implementation of the order, passed by this Court.
10. Learned Advocate General states that all assistance shall be rendered by the District Administration, including the Superintendent of Police for removing such alleged encroachment(s), if any.
11. In view of the undertakings, so filed by each one of the applicants, we also modify our order, dated 22nd September, 2017 with regard to the payment of use and occupation charges. If the possession is handed over in terms of the undertaking(s) on or before 31st March, 2018, and not 31st December, 2017, none of the applicants shall be liable to pay any amount as use and occupation charges. Similarly, if any one of the encroachers/occupants has handed over possession of the property, which was under their possession, to the railway authorities, they shall not be liable to pay any amount towards use and occupation charges save and except the one which they were otherwise liable to pay in terms of the lease deed, if any executed between the parties.
12. We are in agreement with the submission made by Mr. Negi, learned Senior Advocate, appearing for the applicant in CMP No. 8731 of 2017 that the said applicant is liable to pay only a sum of Rs. 8,82,807/- as lease rent which the applicant through counsel undertakes to deposit on or before 31st March, 2018.
::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 16The railways cannot be oblivious of the fact that only with the assistance of this Court, more than 100 persons stand evicted from railway property and all litigations with regard thereto have come to an end. Balancing the equity, we have passed the aforesaid .
order. With the passing of this order, all cases pending before all forums, qua the present applicants shall be deemed to be disposed of. Applications stand disposed of.
13. Registry is directed to segregate the applications and place them in a separate file. CWP No. 144 of 2017 List the matter on the date already fixed."
4. We may also notice that with regard to the protection, preservation and maintenance of another project of national importance having facility of haulage way trolley established almost a century ago was taken up and authorities filed affidavits indicating its proper maintenance and the work of reservation/restoration of the said railway track (haulage).
We are sure that the authorities shall continue to maintain said track commonly known as Shanan-Power House Railway Haulage Track.
Needless to add, it shall be open for the
5. Railway Authorities to initiate the process for physically developing its land, in accordance with law.
6. With the aforesaid observations, we close the present proceedings. Before parting, we wish to place on record with appreciation qua the efforts put in by Ms.Jyotsna Rewal Dua, learned Amicus Curiae, who, on ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP 17 the instructions of this Court, obtained the necessary feedback.
.
Pending application(s), if any, also stands disposed of.
( Sanjay Karol) Acting Chief Justice ( Ajay Mohan Goel ) Judge October 4, 2018 (Purohit/PK) ::: Downloaded on - 11/10/2018 22:56:21 :::HCHP