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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Rajiv Sharma, Tarlok Singh Chauhan, JJ.
Courts On Its Own Motion - Appellant
Versus
State Of Himachal Pradesh and Others - Respondents
CWPIL No. 14 of 2014
Decided On : 22-05-2015
MUNICIPAL CORPORATION - ENCROACHMENTS - REMOVAL - DIRECTIONS - Himachal Pradesh Municipal Corporation Act, 1994 - Sections 227, 396 - Code of Criminal Procedure, 1973 - Section 133 - Indian Penal Code - Section 268 - Himachal Pradesh Police Act, 2007 - Section 114 - Held, that the Municipal Corporation is expected to be vigilant and cannot and should not allow encroachments in any form, be it the illegal extension of shops, its projections, eaves, the pavements or even the footpaths. Public streets and road cannot be blocked or encroached by any one, not even by the government and they are to be kept clear for the purposes of passage only and for no other purpose. The Municipal Corporation shall strictly implement the provisions of Section 227 of the Himachal Pradesh Municipal Corporation Act, 1994, as also byelaws called "Overhanging Project Byelaws" and in case of first three violations, the fine as envisaged under the aforesaid provisions shall be levied. But, in case of fourth default, the licence to run the shop shall be suspended for one month and in case of another default for another six months and in case there is yet another default, then his licence shall be permanently revoked.
Fact of the Case:
The petition was filed by Smt. Neelam Sharma, who as a pro bono publico complained about the encroachments made in Shimla town, she also complained about the alleged inaction on part of the Municipal Corporation to remove the encroachments. She specifically alleged that the shopkeepers had extended their shops over the road and were displaying their goods on road and placing over hangings over the roads and public drains. This petition was registered as CWP No. 300 of 2006 and this Court on 02.01.2008 passed a detailed order, the relevant portion whereof reads as follows:-
Finding of the Court:
The Court held that the Municipal Corporation is expected to be vigilant and cannot and should not allow encroachments in any form, be it the illegal extension of shops, its projections, eaves, the pavements or even the footpaths. Public streets and road cannot be blocked or encroached by any one, not even by the government and they are to be kept clear for the purposes of passage only and for no other purpose. The Municipal Corporation shall strictly implement the provisions of Section 227 of the Himachal Pradesh Municipal Corporation Act, 1994, as also byelaws called "Overhanging Project Byelaws" and in case of first three violations, the fine as envisaged under the aforesaid provisions shall be levied. But, in case of fourth default, the licence to run the shop shall be suspended for one month and in case of another default for another six months and in case there is yet another default, then his licence shall be permanently revoked.
Issues: Whether the Municipal Corporation can allow encroachments in any form, be it the illegal extension of shops, its projections, eaves, the pavements or even the footpaths.
Ratio Decidendi: The Court held that the Municipal Corporation is expected to be vigilant and cannot and should not allow encroachments in any form, be it the illegal extension of shops, its projections, eaves, the pavements or even the footpaths. Public streets and road cannot be blocked or encroached by any one, not even by the government and they are to be kept clear for the purposes of passage only and for no other purpose. The Municipal Corporation shall strictly implement the provisions of Section 227 of the Himachal Pradesh Municipal Corporation Act, 1994, as also byelaws called "Overhanging Project Byelaws" and in case of first three violations, the fine as envisaged under the aforesaid provisions shall be levied. But, in case of fourth default, the licence to run the shop shall be suspended for one month and in case of another default for another six months and in case there is yet another default, then his licence shall be permanently revoked.
Final Decision: The petition was disposed of in the aforesaid terms, so also the pending application(s), if any.
JUDGMENT :
Tarlok Singh Chauhan, J.
Spread across seven hills in the northwest Himalayas among lush valleys and forests of oak, rhododendron and pines is 'Shimla' the capital of Himachal Pradesh that once was the summer capital of colonial India.
2. The Town and Country Planning Department introduces heritage of Shimla in the following manner:-
"Perceived and established by the British during colonial period in first half of 19th century as their Summer Capital, Shimla acquired global fame by the time they left in the year 1947. At the dawn of independence, Shimla was known as 'Capua of India', the Indian Mount Olympus, the Viceroy's "shooting box" "Home of the heaven born", "abode of little tingods". It was popularly known as "Jewel of Orient", "Queen of Hill Stations", "Star of Hill Resorts" and "Town of Dreams". Located at a commanding site in the interior Himalayas, connected by road, rail and air, it has traditionally been a preferred destination for tourists from all over the world. Thousands of miles away from their mother land, amidst picturesque Himalayan environs, Shimla can be called 'a Wonder of Colonial Era'. The British established many architectural masterpieces such as Vice Regal Lodge, Gorton Castle, Railway Board Building, Gaiety Theatre, Town Hall, Auckland House, Ellerglie, Barnes Court, Bungalows, Churches and Challet Day School. Shimla also has a building called North Bank where in 1907 Nobel Laureate writer Rudyard Kipling lived in 1907. It was a dreamland of cool comfort in a very hot land, and full of promise of fun and frivolity. The 96.5 kilometre section of Kalka-Shimla railway line with 103 tunnels is an engineering feat and provides unique experience to those who travel by this historic route. It is the most spectacular narrow gauge railway line in the world. The city possesses distinct British heritage including institutional buildings, bungalows, churches, socio-cultural spaces, hotels, cemeteries, coffee houses, clubs, theatres, schools, hospitals, street pattern and street furniture, immensely add to grace of the city with their distinct expressions. The facades of buildings, sloping roofs, dormers, windows, doors, entrances and chimneys of numerous types replicated from European buildings leave an ever-lasting impact on one's mind and provide an opportunity to understand the Western saga of art and architecture. Shimla has become a multifunctional city alongwith dominance of tourism, administration and institutional activities."
3. A popular holiday destination not only for domestic but overseas tourists also, Shimla is a place where one would love to visit any time of the year and it is for this reason that Shimla finds a place in the global tourists map. Why then is the Administration permitting it to be converted into a slum? Why have the authorities at the helm of affairs turned a blind eye to the encroachments being made and have not cared to remove the same in the Bazars of Shimla despite repeated directions issued by this Court.
4. More than three decades back, this Court on 28th September, 1983, in the case of Yoginder Lal Sharma Vs. Municipal Corporation Shimla and Others, (1983) 12 ILR HP 457 had passed the following directions:-
"21. A grievance has been made that the Corporation has failed to ensure that the Lower Bazar is kept free from various types of projections, obstructions and encroachments with the result that during the day even the ambulances cannot move in that Bazar to help the sick. Of this fact we can take judicial notice. This Bazar is the one which is frequented by everyone in Shimla. The shopkeepers are in the habit of displaying their goods on a part of the street. Some of them are in the habit of setting up projections during the day for the same purpose. Some also store their goods on the road. Unauthorized hawkers are in such abundance that at places it becomes difficult even to walk. We were informed that some of the shopkeepers have the backing of some political pe
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