Dismissing an appeal against a judgment directing the demolition of a wall obstructing a seasonal rivulet, the bench held that the right to construct is subservient to environmental obligations and that the wall impeded the natural flow of water.
Appeal dismissed; earlier direction to remove the wall stands confirmed.
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Letters Patent Appeal No. 911 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Letters Patent Appeal No.911 of 2012 Date of Decision: 5.7.2012
Gurmatpal Singh and another ..Appellants
Versus
State of Punjab and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Sudeep Mahajan, Advocate for the appellants.
RAJIVE BHALLA, J.
CM No. 2416 of 2012
Civil Misc. Application is allowed.
Documents annexed with the application are taken on
record.
Letters Patent Appeal No.911 of 2012
The appellants impugn judgment dated 11.5.2012
passed by the learned Single Judge, dismissing their writ petition.
Counsel for the appellants submits that the impugned judgment is null and void as the respondents have no power to direct the appellants to demolish wall marked as 'FEGHI' constructed in their private land, much less any authority under the Northern Indian Canal and Drainage Act, 1873 (hereinafter referred to as the “1873 Act”) It is further contended that notice, dated 25.11.2011, calling
Letters Patent Appeal No. 911 of 2012 2
upon the appellants to demolish construction in Mahilpur choe, within 15 days, has been issued without following the procedure prescribed by section 56 of the Act and is, therefore, violative of section 55 of the 1873 Act. It is further contended that the appellants went to the office of Deputy Commissioner and explained that the construction has been raised, on private land to prevent soil erosion and the wall does not impede the natural flow of water. The respondents, however, refused to withdraw the notice and have instead demolished the wall causing a financial loss of Rs. 25 lacs. It is further argued that as the construction does not impede the natural flow of water in any manner, the learned Single Judge should have entertained the writ petition instead of relegating the petitioners to file a civil suit.
We have heard counsel for the parties, perused the impugned judgment, the paper-book and express our inability to interfere.
The appellants were directed to remove a wall constructed in a “gair mumkin choe”. We would, at this stage, like to point out that district Hoshiarpur, being semi-mountainious, is dotted by “choes”, i.e., seasonal rivulets, which drain out rain water, particularly, during the monsoon. Over a period of time, a large number of these “choes”, have been encroached by construction, leading to flash floods; destruction of property; loss of life and inundation of villages. The natural flow of seasonal rivulets having been obstructed, water enters houses, fields, villages and towns wrecking havoc and destruction. The Sub Divisional Officer, Water
Letters Patent Appeal No. 911 of 2012 3
Drainage Sub Division, in exercise of its statutory power, has directed the appellants, to remove the wall constructed in a “gair mumkin choe”. The appellants' contention that the wall has been raised on private land and/or it (the wall) does not obstruct the natural flow of water, is a contradiction in terms. The appellants have clearly averred that the wall has been constructed to prevent soil erosion, thereby admitting that land is affected by water that is drained out by the “choe”. A plea that section 55 of the 1873 Act has not been followed, is neither substantiated nor acceptable. Even otherwise, the right of appellants to construct a wall, to divert the natural course of a “gair mumkin choe”, is subservient to their broader obligation to protect the environment.
In view of what has been stated hereinabove, the appeal
is dismissed.
( RAJIVE BHALLA ) JUDGE
5.7.2012 VK
( REKHA MITTAL ) JUDGE
2 issues framed by the court
Whether the learned Single Judge erred in directing the appellants to remove a wall constructed in a seasonal rivulet.
Whether the appellants' construction on private land violated the Northern Indian Canal and Drainage Act, 1873.
2 provisions across 2 enactments
Gurmatpal Singh
State of Punjab
RAJIVE BHALLA
REKHA MITTAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
