Bar Singh Bartwal & Others vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

Heard Mr. Sudhir Kumar, learned counsel for the petitioners and Mr. B.S. Parihar, learned Standing Counsel appearing for the State, and with their consent, the Writ Petition is disposed of at the stage of admission.

The jurisdiction of this Court has been invoked by the petitioners (four in number) seeking a writ of certiorari to quash the notice dated 13.11.2019 issued by the Executive Engineer, N.H. Division, PWD, Rishikesh Division; and a writ of mandamus commanding the respondents not to demolish the constructions and buildings of the petitioners situated on Haridwar-Laxman Jhula Road, Rishikesh, Dehradun district.

A Division Bench of this Court, in its order dated 24.08.2018 in Writ Petition (PIL) No.26 of 2010 while examining the issue of unauthorized encroachments on footpaths and roads of Rishikesh leading to acute traffic jams through the towns of Uttarakhand, had issued certain mandatory directions which are as under:

"A. Respondent nos.2, 3, 4 & 5 are directed to remove the unauthorized constructions/ encroachments from the public land and the pavements in the Rishikesh Town.

B. Respondent no. 5 is directed to seal the commercial buildings/property constructed in the residential area against the master plan and building byelaws of the Haridwar Development Authority.

C. Respondent nos. 2 to 5 shall issue notices to the persons who have encroached upon the Government Land/pavement/Roads within a period of three weeks by permitting them to file reply within two weeks. Thereafter, necessary orders of demolition to be issued.

D. Respondent nos. 2 to 5 are directed to ensure due compliance of previous demolition orders, if not stayed by any Revenue Court or Civil Court.

E. Respondent nos. 2 to 5 are also directed to seal the religious places, if these have been constructed on public land/pavement without any authority of law."

In terms of direction 'C' above, the respondents were required to issue notices, to persons who had encroached upon government land/pavement/roads, within three weeks and to permit them to file their reply within two weeks. A notice was issued to the petitioners on 13.11.2019 giving them one week's time to file their reply thereto. The petitioners claim to have submitted their reply within time on 18.11.2019; and it is their case that no orders have been passed by the respondents, considering the reply submitted by them, till date.

The jurisdiction of this Court has been invoked on the ground that the respondent-authorities had sought police assistance, and had threatened to demolish the structures belonging to the petitioners today ie 25.11.2019.

Mr. Sudhir Kumar, learned counsel for the petitioners, would refer to an order passed by a Division Bench of this Court in Writ Petition (M/S) No.3755 of 2018 dated 17.12.2018, which was also an offshoot of the order passed by the Division Bench in Writ Petition (PIL) No.26 of 2010 dated 24.08.2018.

After referring to the mandatory directions issued by the earlier Division Bench in Writ Petition (PIL) No.26 of 2010 dated 24.08.2018, a Division Bench of this Court, in its order in Writ Petition (M/S) No.3755 of 2018 dated 17.12.2018, had observed thus:-

"....Even if the petitioners are held to be encroachers, it is only to the actual extent of encroachment are they liable to be proceeded against, and not for the remaining extent, if any, which they own. It was obligatory, therefore, for the respondent authorities to inform the petitioners of the actual extent of encroachment both in terms of the area, and in terms of the length and breadth of the encroachment from the public road; and the basis on which the authorities had arrived at the conclusion that the petitioners had encroached upon a public road.

It is only if these facts had been stated in the show-cause notice would the petitioners have been in a position to submit an effective reply thereto. As that has not been done in the present case, suffice it to set-aside the impugned order dated 07.12.2018, and direct the respondents to issue a notice afresh to the petitioners, as directed hereinabove, within a period of four weeks from today. The petitioners shall furnish their reply to the show- cause notice within four weeks from the date of receipt of the said notice. The respondents shall, thereafter, pass a reasoned order within four weeks from the date of receipt of the reply of the petitioners to the show-cause notice, communicate their decision to the petitioner, and thereafter take action in accordance with law. The writ petition stands disposed of accordingly. No costs."

In the present case also, the impugned show-cause notices do not specify the actual extent of encroachment against which action, for demolition of the structures, is proposed to be taken.

While referring to a public notice issued by the authorities on 14.12.2012 to submit that the actual extent of encroachments are referred to therein, Mr. B.S. Parihar, learned Standing Counsel appearing for the State, would fairly submit that the impugned notices do not refer to the actual extent of encroachment by the petitioners herein.

It is only if the actual extent of encroachment, allegedly made by the petitioners, are stated in the show-cause notices, would they be in a position to give an effective reply thereto. As the impugned notice, admittedly, makes no mention of the extent of encroachment, suffice it to set-aside the said notice, and direct the respondents to issue notices afresh to the petitioners, within four weeks from today furnishing details of the exact extent of government land/public road/footpath which the petitioners had allegedly encroached upon. The petitioners herein shall file their reply thereto within four weeks from the date of receipt of the said notice. The respondents shall, within four weeks from the date of receipt of the petitioners' reply to the show-cause notice, pass a reasoned order thereupon, communicate their decision to the petitioners, and thereafter take action in accordance with law.

The Writ Petition is disposed of accordingly. No costs.

Let a certified copy of this order be furnished to the learned counsel for the parties, by 26.11.2019, on payment of the prescribed charged.