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MOHD. SALIM V STATE OF UTTARAKHAND AND OTHERS
This case is a writ petition that was filed by Mohammed Salim before the honorable Uttarakhand High Court in the public interest. The main basis on which the petition was filed was against the mining and stone crushing activity on the shore of Ganga, and according to the petitioner such actions were eventually becoming hazardous to nature especially river Ganga and since this work of mining has started, an increase in pollution has been observed.
The fact of the case is that the respondent nos. 8 and 9 illegally encroached upon the land situated at Kharsa Nos. 27, 28, 29, and 30 on the right side of Shakti Nagar, Village Kulhal Tehsil Vikas Nagar, and District Dehradun. The private respondents even started raising construction on the encroached land. On seeing these, the petitioner had brought these to the notice of the higher authorities. The Executive Engineers had issued a notice on 30.07.2013 to the private respondents and in that notice, they had directed to remove those encroachments. On 12.08.2013, the Executive engineer requested the Sub Divisional Magistrate, Vikas Nagar for the demarcation of the land. On 16.08.2013, an Enquiry Committee was constituted. Later on 06.09.2013, the Executive engineer had requested the Sub Divisional Magistrate for a speedy ac tin. And on 09.09.2013, the Sub Divisional Magistrate forwarded the inquiry report to the Executive Engineer and directed the latter to remove the illegal construction and encroachment of the Executive Engineer. However, despite various orders, encroachers could not be evicted. Even on 24.12.2013, the Sub Divisional Magistrate directed the necessary police force for removing illegal construction. Later on 26.12.2013, the Executive engineer issued the final notice to the private respondents, directing them to remove the illegal construction. As per the petition, the private respondents had purchase government land and they have also raised construction However, there were no stay ordered passed regarding this matter. The petitioner had also stated in its petition that after fourteen years of the creation of the State of Uttarakhand, there still lays a dispute between the State of U.P. and Uttarakhand. The private respondents defended themselves to continue the illegal construction. They stated that the property belonged to the State of U.P. and the boundaries were yet to be determined.
In reply to the petition, respondent nos. 3 and 4 stated that the encroached land was owned by the Irrigation Department and the onus of removing it lies with the Irrigation Department i.e. respondent nos. 5, 6, 7. Respondent nos. 5, 6, 7 had also shown that the land in question is owned by them. Private respondent no.8 in reply stated that she purchased the land from the recorded tenure holder i.e. Respondent no.9. According to Respondent No. 9, he was recorded as a tenure holder on the land, as per Khatoni fasli no.1414-1420. Respondent No. 10 i.e. the State of U.P. in its reply stated that the Central Government had issued a notification after the creation of the State of Uttarakhand on 07.11.2000. According to the notification, the U.P. Irrigation Department was permitted to manage hydel projects associated with the River Ganga. However, it was a temporary measure. The custodian associated with the River Ganga had to be vested to the Ganga Management Board after its constitution.
And finally, the Court passed its judgment on 5.12.2016. In that judgment, some mandatory judgments were given but it was observed that they were not followed. So, again on 20th March, 20107 the honorable Court gave some directions. According to the judgment that was passed on 5.12.2016, respondent nos 3 to 7 were directed to evict the respondent nos. 8, 9 from the Government land from within twelve weeks from the date of order. However, Mr. M.C. Pant advocate of the petitioner had stated that the respondent no. 8, 9 had not been evicted yet. Thus a direction would be given to the District Magistrate, Haridwar to evict them from seven days from 20.03.2017. Also in the judgment passed on 05.12.2016, the Central Government was directed to take a final decision on the basis of settlement between the State of U.P. and the State of Uttarakhand regarding property on the basis of Memorandum of Understanding (MoU) dated 2.2.2016. However, the MoU was not supplied to the Central Government. Thus, the Court directed to submit the Mou within 72 hrs to the Central Government. The Court stated it was very disappointing in observing how the authorities have acted regarding this matter. The Court also added that by the provision of Article 365 of the Constitution, the State needs to follow the order passed by the Central Government. The Court also stated that as the River Ganga and River Yamuna are slowly losing their existence, serious measures are required to preserve them. River Ganga and River Yamuna are worshipped by Hindu. and they are considered sacred. A lot of sentiments are attached to it.
Thus the Court finally gave its judgment. The Court opined that with the development of society, where the individuals fail to communicate with themselves, the concept of juristic person was created by humans for the purpose of society. A juristic person like any other natural person is in law conferred with rights and obligations and is dealt with in accordance with the law. River Ganga and Yamuna are the centers of the existence of half of the Indian population and their health and well-being. Since immemorial time, the river has provided both physical and spiritual sustenance. Thus considering all the facts, the Court declared the Rivers Ganga, Yamuna, all their tributaries, streams, etc as legal persons.
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