Duty of State authorities to prevent and remove encroachments on public infrastructure, and the lack of fundamental rights for businesses to carry on activities at public ways/roads.

Order

13/03/2024

1. The citizens of a State assume paramountcy when holding the State accountable for the substandard functioning of the public assets and machinery. There is no greater stakeholder, other than a citizen of the State, concerned with the plain sailing administration of the public infrastructure, put in place for their benefit. Therefore, as a citizen of the State and also, a Judicial Officer, it is rather agonizing to take note of the rampant encroachment on public infrastructure by certain mercenaries, primarily concerned with advancing their own financial interests, at the expense of the State infrastructure.

2. In essence, encroachment upon public ways and streets, including the most prominent free-ways in the city of Jaipur by street vendors, hawkers and kiosks, has presumably skipped the attention of the public bodies/administration, including the enforcement authority i.e. police, so much so, that the said encroachments have effectively made a mockery of the public infrastructure, leading to a multifold increase in traffic congestions, hampering the daily life of the ordinary citizens. This Court cannot help but make an endeavour to ensure that the citizens do not lose confidence in the State machinery.

3. On previous occasions, taking note of the failing infrastructural promises across the State of Rajasthan, this Court in Gulab Kothari vs. State of Rajasthan and Ors. reported in 2017(1) CDR 355 (Raj.), had issued directions to the local authorities, such as the Jaipur Development Authority and the State Government to ensure that the Master Development Plan of the cities/towns, as prepared under the relevant statutes, was comprehensive and a self-explanatory document, which provides for the preservation, conservation and development of the public infrastructure. In furtherance of the said directions, consequential directives were also issued fastening responsibility on the local authorities and the State Government to immediately take steps to check on the encroachments and unauthorized constructions over the public ways and footpaths. This Court had also ordered for the instantaneous removal of the encroachments made on the footpaths and public ways by way of putting stairs, ramps, hoardings or fencing etc. The order passed in Gulab Kothari (Supra), was directed to be complied with, in letter and spirit, which is evident from the fact that the said order was also immediately brought to the attention of the Chief Secretary-Government of Rajasthan, Principal Secretary-UDH and the Principal Secretary-Department of Local Self Body.

4. Even otherwise, through a plethora of judicial pronouncements, the Hon’ble Apex Court and also, various High Courts have linearly held that encroachments ought not to be allowed to perpetuate and if brought to the attention, should be removed with an immediate effect. However, what is painstaking, is the callous approach of the State machinery, which appears to have turned a blind eye and lent a deaf ear to the rapid encroachments upon public ways across the State of Rajasthan, enabling graver consequences, such as increased traffic congestions and the consequent deterioration of the quality of life of the citizens of the State, protected by the ambit of the Article 21 of the Constitution of India. The presumable and prima facie hand-in-glove approach of the State machinery has permitted hawkers, kiosk users and street vendors to broaden their entrepreneurial scope and set-up businesses on the streets, which per se, is grossly illegal and against the goals of good governance, which the State seeks to achieve. This Court is not unsympathetic to the plight of the penurious vendors/hawkers. However, encroachment upon public ways, to advance one’s own interests, at the cost of the State infrastructure set up for the use of the public at large, cannot be permitted.

5. The State authorities are expected to be vigilant in not allowing the encroachments to find a prolonged life on public l