The Dision Bench of the Jammu and Kashmir & Ladakh High Court, comprising Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri in the case of Jammu Municipal Corporation Vs Mohd Nadeem & Anr, ordered the Deputy Commissioners and Superintendents of Police 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.
Factual Background
The petitioner (Jammu Municipal Corporation) had filed writ petition seeking quashment of order, propounded by respondent No. 2, J&K Special Tribunal, Jammu for directing Respondent No.1 to deposit the monthly rent of the land which was encroached by the Respondents as the land is the public street/municipal lane and the Respondents had installed the khokha without any permission or authority and without any right, title or interest, in breach of the provisions of COBA.
Submission of the Petitioner
The counsel on the behalf of the Petitioner had submitted that the Khokha raised by respondent no. 1 over public street is a cause of inconvenience and nuisance to the general public of the neighbourhood frequenting the area as the same has been raised without permission required under Section 230 of the J&K Municipal Corporation Act, 2000. According to the petitioner, learned Tribunal has practically allotted the Khokha to respondent no. 1 constructed upon a public street, which is not permissible under law.
Submission of the Respondent
The Counsel appearing on the behalf of Respondent Countervailed the stand taken by the petitioner and submitted that 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 Municipality 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.
Court Reasoning & Judgment
The Court heard the arguments and observed that Respondent No. 1 is a specially abled person with 100% disability and it appears that probably for this reason he has been allowed by the petitioner authority to use the open piece of public land to earn his livelihood but it appears that taking advantage of the liberty granted, respondent No. 1 raised Khokha over the said open space and he was served upon a show cause notice followed by final notice of demolition under Section 7(3) of COBA in the year 2009.
The Court further held that encroachments have become a menace especially in this party 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.
Therefore, the Court while disposing of the present petition, issued the following directions:
a. Government of Union Territory of J&K, in general, and the petitioner-authority, in particular, shall 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.
b. If any such structure is erected or re-erected within a period of last five years, the same shall be removed forthwith.
c. 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.
d. The violation/disobedience of the aforesaid direction 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.
The Court allowed the present petition and the impugned order of the tribunal was set aside.
Case Details
Case:- OWP No. 298/2011 (O&M)
Petitioner:- Jammu Municipal Corporation
Respondent:- Mohd Nadeem & Anr
Counsel for Petitioner:- Mr. S. S. Nanda
Counsel for Respondent:- Mr. S. S. Ahmed
Judge: Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri
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