Rita Chaudhary Vs the State of Hp and Others

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? Yes For the Petitioner: Mr. R.L. Chaudhary, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr.Rakesh Dhaulta, Additional Advocate General, for respondents No.1, 2 & 4 to 9- State. Mr. Sandeep Dutta, Advocate for respondent No.3-Pollution Control Board. Mr. Shrawan Dogra, Sr. Advocate with Mr.Devender K. Sharma and Mr. Tejasvi Dogra, Advocates, for respondents No.10 and 11.

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Vivek Singh Thakur, Judge

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Present petition has been preferred as a Public Interest Litigation by Pradhan Gram Panchayat Sayanh of District Mandi, seeking direction to respondents/Authorities to take action against respondents No.10 and 11 i.e. DAV Public School, Dadour and its

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Principal in terms of Notification dated 18^th August, 2022 (Annexure P- 2) issued by the State Government and to impose heavy penalty upon them for causing loss to State Exchequer as well as ecology.

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2 Allegation against respondents No.10 and 11 is that they have started digging 70 feet pit in the middle of the Kansa Khad near Kansa Bridge in District Mandi for constructing a huge wall which would result into diversion of flow of Kansa Khad resultantly causing flood to villages Sayanh, Naki, Dadour and Tawan, Tehsil Balh, District Mandi and also causing damage to Government High School, Government Senior Secondary School, Dispensary, Panchayat Bhawan and houses of thousands of people of above referred villages and also to two temples i.e. Shani Temple and Shiv Temple.

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3 According to petitioner, despite approaching and making the complaints against respondents No.10 and 11 about their illegal construction of huge retaining wall in the middle of Kansa Khad, no action has been taken till filing of petition by the respondentsAuthority.

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4 It has been submitted by petitioner that respondents No.10 and 11 after sanction of lease of land in their favour are running DAV School, Dadour since the last about 15 years peacefully, adjacent to Kansa Khad, but in November, 2024 they diverted the flow of Kansa Khad as per their own wishes and started digging in the middle of Kansa Khad under Kansa Chowk Bridge a 70 feet pit in

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order to construct a huge retaining wall, whereupon petitioner and residents of the area, on 24.11.2024, reported about illegal act of respondents No.10 and 11 to the respondents-Authorities but no action was taken despite visit of Authorities on the spot and thereafter, respondents No.10 and 11 again started construction work in the middle of Kansa Khad in order to grab Government land by diverting the flow of Kansa Khad in illegal and arbitrary manner.

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5 According to petitioner, act of respondents No.10 and 11 would also cause damage to playground, wrestling akhara and dumping site of the Municipal Committee Ner Chowk resulting into impermissible loss to the general public. Respondents No.10 and 11 have not taken any permission from the Revenue Department, Forest Department, Pollution Control Board, State Geologist as well as Mining Department and despite that Authorities are not taking any action against them.

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6 According to petitioner, illegal arbitrary act of respondents No.10 and 11 warrants action against these respondents in terms of Notification dated 18.8.2022 issued by the Government of Himachal Pradesh, but on failure of concerned Authority to take any action, petitioner is constrained to file present writ petition.

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7 Respondents No.10 and 11 have filed a detailed response to the petition stating that petitioner has not come to the Court with clean hands and has concealed the material facts and narrated the

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false and wrong facts in petition, with further submission that the Government of Himachal Pradesh executed a 99 years lease deed dated 5.2.2009 in favour of Dayanand Anglo Vedic Public School, Ner Chowk, with respect to land comprised in Khata Khatauni Number 376/1105, bearing Khasra No. 1329/1241 measuring 5-0-0 bighas situated at Muhal Dadour/225 Mauza, Tehsil Sadar, District Mandi HP for a consideration of Rs.1,37,717/- per annum rent. Whereas, area of Kansa Khad is comprised in Khata No. 432 min, 404 bearing Khasra No. 1309/1216/2 and Khata No. 432 min bearing Khasra No. 1308/1216 situated in Muhal Dadour, District Mandi. To substantiate the aforesaid plea, copy of lease deed and jamabandi for the year 2019-20 have been placed on record as Annexures R-1 and R-2 to the reply.

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8 It is further case of respondents No.10 and 11 that school building was constructed in the year 2010 by spending Rs.3 crore with prior permission of SADA and TCP and the retaining wall abutting to Kansa Khad was also constructed. The H.P. Public Works Department after demolishing the old dilapidated bridge constructed a new bridge on the Kansa Khad but leaving the debris of the old bridge in Kansa Khad causing obstruction of water flow in rainy season resulting into bifurcation of flow of Khad towards the school premises. No action was taken by the Authorities to channelize the water despite request made by the School Management. Whereafter,

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on account of heavy rain fall in the rainy season of 2019 flow of Kansa Khad diverted towards the school premises causing washing away the school ground, retaining wall, sports room, stage and some parts of the structure.

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9 After flood of 2019, respondent-school constructed a new retaining wall in the year 2020, but in the year 2022, due to heavy rain fall, retaining wall of school and some land of school again washed away with flow of water of Kansa Khad causing huge soil erosion of the land of school. Despite making request by respondentschool to the Authorities at State level and District level to remove the debris of old bridge from the spot which was causing diversion of flow of water of Kansa Khad towards the school building, no remedial action was taken by anybody.

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10 According to respondent-school, in 2023 again, retaining wall and land of school washed away in rainy season.

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11 According to respondents No.10 and 11, on failure to take any action to remove the debris of old bridge from Kansa Khad, Principal of School (respondent No.11) approached the National Green Tribunal through registered post with prayer to issue direction to the State of HP to remove the debris of old bridge and to construct a retaining wall. The complaint was accepted and the Tribunal issued the notices to the State and its Departments vide order dated 2.1.2024 (Annexure R-6).

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12 In response to aforesaid notice, it was informed by the State to the National Green Tribunal that debris of old bridge was being removed, with further submission that respondent-school may construct the retaining wall from its own funds.

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13 The National Green Tribunal disposed of the complaint vide order dated 28^th May, 2024 directing the Authorities to take steps for arresting erosion of soil in the area in question on banks of river by taking such remedial steps as are necessary and submit the compliance report to the Registrar of National Green Tribunal within two months.

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14 After passing of order of National Green Tribunal, respondent No.10 consulted the Structural Engineer, Hydrologist and Civil Engineer and their report was submitted to the Higher Authorities of the school, whereupon Higher Authorities approved the construction of protective wall to ensure the safety of school and children by approving the loan of Rs. 1 crore to the respondentschool.

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15 The aforesaid plan and approval of respondent-school was informed to the District Administration, Mining Officer, Regional Pollution Authority by submitting the letters to the concerned Authorities placed on record as Annexure R-9 (colly). Thereafter, respondent-school issued the tender for construction of retaining wall and work was allotted to ‘Tarsem Chand Associates’ who started

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construction work of retaining wall on 26.11.2024 within the boundary of leased land as fixed in the demarcation report dated 23.12.2023. However, petitioner and other some politically influenced persons, who are running private schools in the vicinity, entered in the school premises and hurled abusive language and pebbles upon the workers leading to stoppage of the work on the spot. The incident was reported by the school Authorities to the concerned Sub Divisional Magistrate, Police and District Administration whereupon police came on the spot and restrained the persons causing hindrance in construction work.

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16 It has been also submitted on behalf of respondents No.10 and 11 that the land allotted to respondent No.10 was demarcated by the Revenue Authorities and on the spot fixed boundary marks on boundary of Kansa Khad were fixed. It has been submitted that respondents No.10 and 11 are not carrying out any construction activity beyond the area leased out to respondent No.10 and respondents No.10 and 11 are carrying out the work of retaining wall in order to save the school and other property and to avoid the danger to the life of children studying in the school.

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17 According to respondents No.10 and 11, on account of jealousy flouted by the owners of local private school with ulterior motive to get the present school closed, a calculated conspiracy has

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been hatched to prevent the school from protecting its land and building and present petition has been filed on false facts.

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18 It has also been stated on behalf of respondent-school that being Pradhan of Gram Panchayat Sayanh, the petitioner herself issued letter to the respondent-school about damage caused to the school building and retaining wall but inspite of knowledge that retaining wall of school has washed away in rainy season of 2022, present petition has been preferred without disclosing the true and material facts.

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19 It is further case of respondents No.10 and 11 that respondent-school has taken 5 bighas of land from the State Government and respondent-school has right to protect the land allotted to the school from soil erosion and wall is being constructed at a distance of 100 feet from the boundary mark of leased land with the boundary of Kansa Khad and construction of such wall will result in channelization of the flow of water of Kansa Khad and will prevent the soil erosion from the banks of river as has also been directed by the National Green Tribunal with further averment that in reply filed by State before the National Green Tribunal, it was the stand of respondent-State that school may construct retaining wall out of its own funds.

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20 It is further submitted that Revenue Officer (Kanungo) visited the school premises on 28.11.2024 and verified the boundary

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pole fixed in the demarcation dated 23.12.2023. It has been submitted that School Management has also done videography of the demarcation dated 23.12.2023 to ensure the transparency and to construct the retaining wall only within its boundary line as fixed by the Revenue Authorities.

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21 With aforesaid submissions, the allegations levelled in the petition have been denied stating that construction work, being carried out by respondents No.10 and 11, is legal in all respects and is being undertaken after having necessary permission of all concerned quarters.

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22 To substantiate the plea taken by respondents No.10 and 11, the demarcation report, photographs of the spot, copies of order passed by National Green Tribunal, copy of reply filed by State before the National Green Tribunal as well as copies of applications submitted by respondent-school to various Authorities have also been placed on record.

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23 In reply filed on behalf of respondents No.4 to 6 (Director of Industries, State Geologist and Mining Officer), it has been stated that neither these respondents have received any complaint nor issue raised by petitioner in present petition pertains to these respondents.

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24 In reply filed on behalf of respondents No.1 State of HP through its Secretary (Revenue) to the Government of Himachal Pradesh, respondent No. 8 Deputy Commissioner, Mandi and

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respondent No. 9 Tehsildar Balh on affidavit of the Deputy Commissioner, Mandi, it has been stated that a telephonic complaint was received by the Sub Divisional Magistrate, Balh from the local residents on 27.11.2024 and on 2.12.2024 alleging some illegal construction being carried out by respondents No.10 and 11 in Kansa Khad. Whereupon, field functionaries visited the spot on 28.11.2024 and 2.12.2024 and upon inspection, it was found that respondents No.10 and 11 had excavated a pit for construction of retaining wall to protect the school from potential threat of flooding. Whereas, local residents were strongly objecting to the said construction. Respondents No.10 and 11 were directed by the field functionaries to stop the construction immediately and thereafter, no construction is going on on the spot.

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25 Execution of lease deed, as claimed by respondent No.10 and 11, filing of complaint by respondent No.11 before the National Green Tribunal and passing of order therein have also been admitted by respondents No.1, 8 and 9.

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26 It has been further stated in reply filed by the Deputy Commissioner that in view of direction issued by National Green Tribunal and considering the potential threat of flooding as apprehended by the school Authorities as well as to address the concerns raised by local residents, respondent/State was intending to constitute a Committee comprising of Officers/officials from the

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Revenue Department, Jal Shakti Vibhag, HP Public Works Department, Mining Officer and other relevant Authorities for the purpose of conducting a physical inspection on the spot and to propose appropriate remedial measures to safeguard the interests of school and to address the concerns of local inhabitants adequately. With aforesaid submissions, denying the allegation of petitioner, it has been prayed in reply that petition being devoid of merit deserves to be dismissed.

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27 Other respondent No.2 Secretary (Forest) to the Government of Himachal Pradesh and respondent No.3 Pollution Control Board and respondent No.7 Divisional Forest Officer have not filed any separate reply.

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28 During adjudication of present petition, by taking into consideration the averments made by Deputy Commissioner Mandi especially para 6 of reply on merit, whereby intention to constitute a Committee, referred supra, was communicated, the Court vide order dated 30.12.2024, after observing that primary dispute inter se the parties from pleadings seems to be that construction of retaining wall is being done by school on its area leased out to it or beyond the area leased out in the Khad as alleged, had directed the respondentAuthorities to conduct the demarcation by concerned Officer of the Revenue Department at the time of inspection by aforesaid Committee. The Deputy Commissioner was directed to file necessary

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report in this regard in the Court on next date of hearing. No report was submitted till 1.4.2025.

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29 In the meanwhile, respondents No.10 and 11 filed an application CMP No. 1051 of 2025 for interim direction to restrain the petitioner from doing digging excavation and construction work in the area of Kansa Khad with JCB. After taking into consideration the material placed on record and undisputed fact that there was JCB machine at the site, as evident from the photograph placed on record with application, vide order 9.1.2025, it was observed that petitioner or any person authorized by her or near vicinity would have no right to excavate or dig the area concerned, once the Court is seized of the matter.

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30 On that day, learned counsel for petitioner had undertaken on behalf of petitioner that no authorized person shall use any heavy machinery for excavation or carry out any digging activity in the Kansa Khad area which may adversely affect the demarcation process and State was directed to ensure that no person shall do any such activity as Court was already seized of the matter.

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31 On 8^th April, 2025, learned Additional Advocate General has placed on record the instructions dated 1.4.2025 along with documents including the Committee Report, sanction order and demarcation report etc.

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32 Tehsildar Balh has demarcated the land in presence of

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parties and Committee and conclusion of report is as under:-

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“…...Thus, the demarcation process of Khasra No.1593/1329/1214 was completed and the permanent boundary marks were fixed as pillars on the boundaries which were admitted as correct by the local inhabitants.

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After completion of demarcation it was observed that contraction wall which already contracted on the spot is adjacent to the water channel flowing in the stream (Khadd). The proposed construction wall where DAV authorities are excavating in their land is 10 Karms inside the stream (Khadd). However, on paper Khadd is beyond 26 Karms. All the local people and team members accepted the demarcation and no objections were raised by anyone. Hence, the demarcation report is submitted for further necessary action please.”

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33 The recommendation given in the Committee Report is as

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under:-

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“…...After completion of demarcation, it was observed that a wall is already existing on the spot adjacent to the Kansa Khad towards DAV School. The proposed wall for which DAV authorities were excavating in Khad is 10 Karm inside the Khad. However, as per the demarcation report the excavation site falls within the area leased out to the DAV School. It is also important to highlight here that as per the revenue record, the Khad actually lies about 26 Karm away from the leased land. However, due to change in course of Khad the same is presently flowing on one side of the land leased out to DAV School. No

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objections were raised out to this fact on the date of this demarcation.

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As per the demarcation report and spot visit, it was found that the present excavation being done by the DAV authorities is 46 feet (10 Karm) inside the flowing Kansa Khad, although the land has been leased out to them. As per the revenue record, the actual Khad was earlier 115 feet (26 Karm) away from the alleged land. After perusing the demarcation report, ground reality and listening to both the parties, the Committee is of the opinion that although for the protection of School and students, it is important to construct a wall as soon as possible but the same might lead to permanent loss of the only ground asset available for the society. If the DAV authorities are allowed to construct the proposed wall covering their entire land along with Kansa Khad, then it will not only cause damage to the only Kansa ground, but may also pose danger to the bridge of PWD existing over the Khad by restricting the natural flow of Khad. Hence, it is recommended that the school authorities may be directed to construct the wall at least 46 feet (10 Karm) inside the leased land towards the existing school building (i.e. outside the presently flowing Khad) so that the flow of water may not get obstructed. The school authorities must do the work only under the supervision of PWD Department so that technical know how will help to address any future danger to any asset in the surrounding of Khad. Further channelization of both banks of Khad are important. The left bank will be channelized by the DAV authorities while the right bank may be protected under MNREGA head by BDO Balh. The work

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shall be executed by the Gram Panchayat Syanah under supervision of BDO Balh. The muster rolls must be issued on priority basis. It is important to mention here that BDO Balh vide her office Order No. DBB/2022-23-14517-520 dated 14.9.2022 has already sanctioned 10 lakh rupees for c/o channelization kansa khad bridge to shamshanghat. Thus, a collective effort will address the issues and concerns of all the parties.”

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34 In the report of Deputy Commissioner, recommendation of the Committee has been reiterated.

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35 Learned counsel for respondents No.10 and 11 has submitted that DAV is affiliated to Central Board of School Education (in short ‘CBSE’) and for running the school with affiliation of CBSE, apart from approval and sanction of other relevant Authorities/Bodies, minimum prescribed area of land is required to be maintained. According to him, in case as per recommendation of the Committee, respondent No.10 is restrained from raising the construction of retaining wall to protect its property and land leased to the school, there will not only be danger to life and property of students and school but also danger of withdrawal of sanction/affiliation by concerned Bodies including CBSE for not having sufficient required area for running the school. Further that school ground would be protected and available only in case respondent-school is permitted to raise construction of retaining wall and is permitted to take necessary steps to protect the land leased to it which has washed

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away in floods during previous years because of omission and commission of concerned Government Authorities/Departments.

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36 Though the Tehsildar in his demarcation has categorically stated that Khad is beyond 26 Karms from the site where DAV Authorities are excavating the pit and construction work being undertaken by DAV Authorities is within the area/land leased to the School. However, the Committee is proposing to restrain the DAV Authorities from doing so in order to protect the other bank of Kansa Khad.

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37 At this stage, it is apt to record that the location of Kansa Khad is 26 Karms away from the land leased out to respondentSchool. Due to erosion of soil in flood on the bank of Khad on the side of school, because of illegal and unauthorized construction on actual area/location of Khad, there is shift of location of Khad towards school. Therefore, it is being purported that excavation work is being done by school Authorities in the middle of Khad, whereas location of Khad is 26 Karms away from leased land and proposed construction is being carried out by respondent-school after leaving sufficient area of leased land from the boundary towards the Khad but protection wall is proposed in the land leased to School and not in the middle of original location of Khad.

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38 As also recommended by the Committee the protection of other bank of Kansa Khad has been assigned to Block Development

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Officer (in short ‘BDO’). Therefore, it is the duty of BDO and other Authorities to remove the encroachment from the actual original location of Kansa Khad which may have been occupied by villagers, Gram Panchayat or someone-else so as to ensure the flow of Kansa Khad on its right place but not in the land leased out to the School.

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39 Once the land has been leased out to the School for a handsome amount of annual rent, there is no right and occasion for the Authorities including the Committee to recommend to restrain the School from raising retaining wall/construction of wall to save its property and to avoid danger to life of students. Respondent-School has every right and authority to restore the portion of land leased to school which has washed away during past years due to flood and diversion of flow of water because of debris of old bridge thrown by the functionaries of State in the Kansa Khad and also because of diversion of Kansa Khad towards the property/land leased to DAV school on account of encroachment by villagers or other persons on other bank of Kansa Khad or upon the actual original location of Kansa Khad.

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40 It is duty of respondents-Authorities to ensure performance of their duty by removing the encroachment upon the area of Khad as per revenue record and not to consider the Khad for present flow of water of Khad in leased land of School.

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41 We are of considered opinion that this Court, especially exercising the jurisdiction under Article 226 of Constitution of India, should not restrain the respondent-school from protecting its property including the land leased to it for running the School particularly when respondent-School is paying huge annual rent to the Government. Rather, it is warranted that concerned Authorities shall ensure availability of land by replenishing the same either providing alternative land or by helping in raising retaining/protection wall by respondent-School and will ensure removal of encroachment upon the land/Government land where actually Kansa Khad has been diverted from original place on account of illegal possession upon the Khad area.

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42 On filing of present petition, vide order dated 13.3.2024 respondents No.10 and 11 were restrained from carrying out any excavation/digging for construction work etc. in Kansa Khad, because it was purported by petitioner that excavation work was being done by respondent-School in the middle of Kansa Khad, whereas it was not so in reality. Being a responsible person and inhabitant of local area, petitioner is expected to have information and she must be knowing that original location of Kansa Khad is somewhere-else, but not where the excavation/construction work was being carried out by respondent-School. Being a Panchayat Pradhan, petitioner was capable to have access to the revenue record and to verify the facts

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and only thereafter to make the averments in petition based on true and correct picture of the spot. But it appears that, may be for vested interest of her supporters or in haste, she preferred the petition with unverified allegation that respondents No.10 and 11 were excavating and digging the land on the mid of Kansa Khad and are trying to divert the flow of Kansa Khad. It was also unwarranted conduct of Pradhan that during pendency of present matter, attempt was made to change the course of Khad whereupon on filing application by respondents No.10 and 11, this Court had to pass restraint order.

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43 It is apparent from record that the petitioner, by filing the petition by twisting the facts and concealing the material facts, had been able to obtain restraint order against respondents No.10 and 11 during pendency of petition. Therefore, petitioner may be burdened with heavy exemplary cost, but taking a lenient view, we are not imposing cost.

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Accordingly, petition is dismissed being devoid of merit in terms of the aforesaid observations. Pending miscellaneous application(s), if any, are disposed of in aforesaid terms.

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(Vivek Singh Thakur), Judge.

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21^st June, 2025(ms) (Ranjan Sharma), Judge.

Rita Chaudhary v. the State of Hp and Others

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Rita Chaudhary v. the State of Hp and Others

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