The High Court dismissed a writ petition challenging notices to remove an unauthorized RCC slab covering Singh Nallah Choe. Ruling that prior approval was mandatory for covering public drains, the Bench held the notices valid.
Petition for quashing the notices to remove unauthorized slab dismissed.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No. 13789 of 2008
DATE OF DECISION: AUGUST 05, 2008 New Generation Real Estates Ltd., Chandigarh
.....PETITIONER
Versus
State of Punjab and others
....RESPONDENTS
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Rahul Sharma, Advocate, for the petitioner.
SATISH KUMAR MITTAL, J.
The petitioner company, which is a Colonizer and has developed Residential Duplex Independent houses at village Himmatgarh, NAC, Zirakpur, has filed this petition under Articles 226 of the Constitution of India for quashing the notices dated 30.7.2008 and 1.8.2008 issued by the Sub Divisional Officer, Patiala Drainage Sub Division, Patiala.
In the aforesaid notices, it has been stated that the petitioner has unauthorizedly covered the `Singh Nallah Choe' in a length of 150 ' . The said unauthorized construction is causing obstruction in free flow of rain/flood water and difficulties are being faced while cleaning the Nallah and removal of obstruction from the Nallah. The petitioner was asked to remove the aforesaid covering within a period of 15 days from the receipt of the notice. Keeping in view the rainy season, the second notice was issued directing the petitioner to remove the aforesaid covering by 5.8.2008. It was also made clear in the notice that if the said covering is
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not removed, then it will be removed by the department at the cost of the petitioner.
It is pertinent to mention here that before the aforesaid two notices, notice dated 8.5.2007 was issued by respondent No.2 to the petitioner to remove the slab which was constructed by the petitioner as the same was obstructing the free flow of water in the vicinity of Singh Nallah Choe.
The said notice was issued in pursuance of an order passed in CWP No.1840 of 2005 (Om Parkash v. State of Haryana, decided on May 03, 2006) wherein a direction was issued to the respondents to take immediate steps to stop unauthorized and illegal squeezing/narrow downing the Singh Nallah Choe at various places. For implementing the said direction, a Committee has been constituted by the intervention of the Chief Secretaries of Punjab and Haryana. Accordingly, a direction was also issued by this Court to the Chief Secretaries to ensure that the Committee should meet regularly so that a decision in the matter is taken as expeditiously as possible.
In pursuance of the above direction issued by this Court in CWP No.1840 of 2005, the respondent authorities issued the aforesaid notices asking the petitioner to dismantle the RCC slab constructed on the top of Singh Nallah Choe, which is running from Panchkula and flows through the land owned by the petitioner in Zirakpur.
We have heard the counsel for the petitioner.
Admittedly, a notification under Section 55 of the Northern India Canal and Drainage Act, 1873 (hereinafter referred to as `the Act') has been issued by the State Government whereby all the public
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autonomous bodies, person or persons have been prevented from creating any obstruction by making any type of construction or by covering the Singh Nallah. Undisputedly, the said Nallah being a public drainage vest in the State and under the Act nobody can obstruct the said Nallah by covering the same without prior approval from the authorities. By the said notification, a direction was also issued to all the concerned persons to remove all the constructions created by them, if any, on the `Singh Nallah Choe', so that natural flow of rainy water is maintained. The petitioner is not the owner of the said Nallah and the same vests in the State. In view of these facts, we do not find any substance in the prayer made by the petitioner because admittedly before covering the said Nallah no prior approval was ever obtained. We are also not convinced with the argument of the learned counsel for the petitioner that the R.C.C. slab constructed by the petitioner on the top of the Nallah is in no way causing any hindrance in free flow of water in the Nallah. In our opinion, it is for the authorities to see whether any obstruction has been caused or not. As far as the petitioner company is concerned, it is not having any right to cover the said Nallah by putting the R.C.C. slab without seeking prior approval. Therefore, we do not find any ground to quash the impugned notices.
Dismissed.
(SATISH KUMAR MITTAL) JUDGE August 05, 2008 ( DAYA CHAUDHARY ) vkg JUDGE
2 issues framed by the court
Whether notices requiring removal of unauthorized RCC slab covering a public nallah without prior approval should be quashed.
Whether a colonizer company has the right to cover a state vest drain with a slab obstructing water flow.
1 provisions across 1 enactments
New Generation Real Estates Ltd.
State of Punjab
Satish Kumar Mittal
Daya Chaudhary
As recorded by the court registry
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