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2023 Supreme(P&H) 2572
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
G.S. SANDHAWALIA, HARPREET KAUR JEEWAN, JJ.
Harpreet Singh Sidhu & Ors. – Petitioner
Versus
State of Punjab & Ors. – Respondents
CWP NO. 16060 of 2023
Decided On : 27-07-2023
Mr. Jasdev Singh Brar, Advocate; For the Petitioners
For the Respondents: Mr. V.G.Jauhar, Additional A.G., Punjab.
Ms. Anu Chatrath, Senior Advocate, with Mr. Nishant Maini, Advocate, for Respondents No. 2 to 4.
Headnote:(A) Constitution of India - Articles 226 and 227 - Writ petition for issuance of Certiorari - Petitioners challenge demolition of temporary iron railings by Bathinda Development Authority without notice or opportunity for hearing - Court emphasizes necessity for proper notice regarding encroachments and opportunity for resident response. (Paras 1-12)
(B) Administrative law - Requirement of due process - Removal of encroachments must be preceded by notice and hearing, ensuring residents can respond to allegations before action is taken. (Paras 10-12)
Facts of the case:
Petitioners contend that iron railings are necessary to manage issues with stray cattle and maintain the colony's safety; past orders from the court suggest procedural fairness in similar contexts.
Findings of Court:
Court ruled that wholesale removal of encroachments is impermissible without notice and opportunity for residents to address allegations.
Issues: Whether the authorities can act against alleged encroachments without prior notice and hearing.
Ratio Decidendi: The court held that due process requires that residents be given notice of encroachments and an opportunity to respond before removal is enforced.
Result: Petition disposed of.
| Table of Content |
|---|
| 1. claim for writ of certiorari. (Para 1) |
| 2. prevailing issues of encroachments and previous orders. (Para 2 , 3 , 4 , 5) |
| 3. the argument for removal of iron railings. (Para 6 , 7 , 8) |
| 4. court's reasoning on notices and encroachments. (Para 9 , 10 , 11 , 12) |
| 5. disposition of the petition. (Para 13) |
JUDGMENT
G.S.Sandhawalia, J. (Oral) - The relief claimed in the present petition filed under Article 226/227 of the Constitution of India is for issuance of a writ in the nature of 'Certiorari' for quashing the impugned official notice dated 19.07.2023 (Annexure P-1), issued by the Additional Chief Administrator, Bathinda Development Authority, whereby orders have been issued to demolish the temporary iron railings in front of the petitioner's house without issuing any legal notice or providing opportunity of hearing.
2. Learned counsel for the petitioners has submitted that the said iron railings have only been installed for the purpose of maintaining the colony as such, there is menace of stray cattle and dogs. There are almost 32 entries to the colony and there is also an adjoining 'Basti' called for 'Dhobiyana Basti' and several FIRs have also been registered. Reference is made to the several photographs attached (Annexures P-4 and P-6) to show the free flow of cattle menace.
3. Reliance is also placed upon an order passed earlier by the co-ordinate Bench of this Court in CWP-3009-2022, titled Ravinder Singh Romana and another v. State of Punjab and others decided on 17.02.2022 (Annexure P-5), wherein comprehensive representation was to be given to the respondents who would examine the issue and take necessary steps.
4. The similar order has also been passed in CWP-1784-2023, titled Navpinder Pal Singh Sidhu v. State of Punjab and others, decided on 09.02.2023 (Annexure P-2), wherein directions were also issued that the reply of the petitioner would be considered, in pursuance to the notice issued and a speaking order be passed within a period of 3 weeks and till then status quo as it exists on that day will be maintained.
5. On 26.07.2023, i.e. yesterday, in CWP-16028-2023, titled Charanjit Singh v. State of Punjab and others, we had also passed the similar order that demolition would be carried out only after issuing notice and giving opportunity of hearing to the petitioner and then a speaking order be passed.
6. Learned Senior Counsel appearing for respondents No. 2 to 4 submits that encroachments have been made by installation of iron railings and hedges based on retaining boundary walls around corner plots disrupting the free flow of traffic.
7. It is submitted that in such circumstances, the drive is being carried out to remove the encroachments of iron railings.
8. It is also further pointed out that several encroachments have been removed from 20.07.2023 to 25.07.2023 by the respondents-authorities and therefore, under the guise of the present order, the petitioners should not be in a position to press for any adverse action against the authorities.
9. We have considered the submissions on both sides.
10. It is our considered opinion that until the specific notice is issued to every individual pointing out the extent of encroachment, wholescale removal would not serve the purpose. It is for the respondents-authorities to take into consideration which encroachment as such is of such a nature which cannot be compounded and is disrupting the free flow of traffic.
11. For example, if pillars have been extended on to the road to install a gate and extending the car parking area, the same would not be permissible in any manner. The boundary line has to be maintained and therefore, the residents as such cannot on the pretext of maintaining a green belt increase their space by extending the green belt of the hedge adjoining the pavement and increase the Green area around a house without having its own boundary wall. It is suffice to say that the above are one or two examples which cannot be permitted in any manner
