Anil Kumar vs State Of Uttarakhand & Others

Sanjaya Kumar Mishra, J

1) In this writ petition (PIL), the petitioner has prayed for the following reliefs : -

i) Issue a writ, order or direction in the nature of mandamus commanding to the respondent authorities to immediately remove the encroachment from the land of children park Bhowali.

ii) Issue a writ, order or direction in the nature of mandamus commanding to the respondent authorities to restore the children park Bhowali in the monitoring of Hon’ble High Court.

iii) Issue a writ, order or direction to the respondent No. 4 to take possession upon the children park land if the respondent No. 3 violate terms and condition of lease deed.

iv) Issue a writ, order or direction in the nature of mandamus commanding to the respondent authorities to conduct inquiry and punish those officers who have not taken any action against the encroachers and grant permission for construction of shop on the land of children park Bhowali.

v) Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the present case.

vi) Award the cost of the petition.

2) During pendency of the case, the petitioner died, and as per the order passed by this Court, the Registry brought out a public notice that the petitioner has died, and the present PIL has been filed with regard to the alleged encroachment upon the land belonging to the children park at Bhowali.

3) We are informed by Mr. Navnish Negi, the learned counsel appearing for the Nagar Palika Parishad, Bhowali that the land is recorded as Forest, and a lease has been granted by the State of Uttarakhand in favour of the Nagar Palika Parishad, Bhowali for construction of a children park. They have already constructed a children park, and at present, there is no encroachment over it. So, we are of the opinion that there is no need to pass a writ of mandamus.

4) We have also heard Mr. Neeraj Garg, the learned counsel appearing for respondent no. 6. The respondent No. 6 claims the land to be his bhumidhari land, and for that purpose a civil suit has already been instituted before the competent civil court having territorial jurisdiction. So the question, whether the respondent No. 6 has a right over it, or not, is not the subject matter of this Writ Petition (PIL), and this Court has stayed its hands from deciding that issue as the civil court is in seisin of the matter.

5) We are also informed that the trial court has already rejected the application for temporary injunction, and the appeal under Order 43 of the Code of Civil Procedure is pending before the learned District Judge, Nainital.

6) We hereby dispose of the present Writ Petition (PIL) holding that there is no need to issue any mandamus against anybody, and with the further direction that the order passed by us shall not cause any prejudice on the rights and liabilities of the parties litigating before the civil court.

7) With such observation, the Writ Petition (PIL) stands disposed of. There shall be no order as to costs.

8) However, the respondent No. 6 shall be at liberty to file an appropriate application before the learned Appellate Court before whom the Miscellaneous Appeal is pending for expeditious disposal of the appeal, which shall be considered favourably.