High Court Directs J&K Admin To Remove Encroachments From Public Roads; DCs And SPs To Be Held Responsible For Any Violations
Taking serious note of the increasing encroachments of public roads and streets in Jammu and Kashmir, the High Court on Tuesday directed the J&K Government and Jammu Municipal Corporation to ensure that no structure of any kind is allowed or permitted to be raised on public road, street, pathway and lane.The division bench of Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri...
Taking serious note of the increasing encroachments of public roads and streets in Jammu and Kashmir, the High Court on Tuesday directed the J&K Government and Jammu Municipal Corporation to ensure that no structure of any kind is allowed or permitted to be raised on public road, street, pathway and lane.
The division bench of Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri said if any such structure has been erected or re-erected within a period of last five years, the same shall be removed forthwith and in case of any fresh encroachments, the Deputy Commissioners and Superintendents of Police of that area shall be held responsible.
"Registrar Judicial is directed 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," the court said.
It further made it clear that any violation or disobedience of its direction shall be construed as a deliberate and intentional attempt to lower down the authority of this Court and would amount to criminal contempt.
The directions were passed by the court while hearing a plea against an order of Special Tribunal in terms of which it had quashed the demolition notice under Section 7(3) of J&K Control of Building Operation Act, primarily on the ground that the alleged encroacher, being deaf and dumb was 100% disabled and the Corporation had already accepted monthly rent for the Khokha (shop) existing on a public street.
The Corporation challenged the order primarily on the ground that the respondent has encroached the public street/municipal lane and installed the Khokha without any permission or authority and without any right, title or interest, in breach of the provisions of COBA, its Regulations as also the prescribed building Bye-laws and Master Plan.
It further submitted that the Khokha on a public street is a cause of inconvenience and nuisance to the general public of the neighborhood frequenting the area as the same has been raised without permission required under Section 230 of the J&K Municipal Corporation Act, 2000.
Per contra, the respondent resisted the plea by submitting that he being 100% disabled as deaf and dumb, is running the Khokha in question for the last more than twenty years and the said Khokha is the only source of his income and 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.
The bench observed that it has complete sympathy with respondent as he is a specially abled person with 100% disability and probably for this reason he has been allowed by the petitioner authority to use the open piece of public land to earn his livelihood.
However the bench clarified that he cannot be allowed to raise any structure, be it temporary or permanent, over the open space provided to him to earn his livelihood.
"Learned Tribunal has fallen in grave error of law to hold that the petitioner-authority has accepted the monthly rent of Rs. 432/- from respondent No. 1 as rent of the Khokha in question," the bench said, while setting aside the impugned order.
Before parting with the order, the bench said encroachments have become a menace especially in J&K and all directions passed by the 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.
The court further said that every citizen has a fundamental right of movement and it cannot be allowed to be breached in public places. 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 bench added.
"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. There is no fundamental right or legal right to encroach upon a public lane or public street and raise construction of any kind thereon," the court said.
Case Title : Jammu Municipal Corporation Vs Mohd Nadeem & Anr.
Citation : 2022 LiveLaw (JKL) 272
Coram : Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri