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Judgment
SUDHANSHU DHULIA, J. (ORAL)
A Public Interest Litigation being WPPIL No.47 of 2013 regarding encroachments and unauthorized constructions, including encroachment on
public land and road came up for hearing before a Division Bench of this Court. The Division Bench of this Court decided the writ petition and issued
certain directions to the State Authorities, including the Mussoorie Dehradun Development Authority (in short “MDDAâ€). There were number of
directions given by the Division Bench of this Court on 18.06.2018, including the one which is as follows:-
“The Municipal Corporation/MDDA/State functionaries are directed to remove all the unauthorized encroachment on public
foothpaths/streets/roads/pavements including unauthorized constructions made over them within a period of four weeks from today by using its might.
It shall be open for the State functionaries to impose Section 144 of Cr.P.C. while removing the demolition of illegal structures built on government and
municipal and/ footpaths/streets.†There are other directions as well.â€
Consequent to these directions, the Administrative Authorities, including the Development Authority have initiated a drive for removal of
unauthorized constructions as well as encroachments from the public road. One of the persons who were affected by this anti-encroachment drive
had filed an SLP before the Hon’ble Apex Court. The said SLP was disposed of by the Hon’ble Apex Court vide order dated 04.07.2018 with
certain directions modifying the order of the Division Bench of this Court dated 18.06.2018 passed in the above PIL. The order has been modified to
the extent that the concerned authority has now to issue notices to the “unauthorized encroachers†and follow the due procedure, in terms of the
order of the Hon’ble Apex Court. The show cause notices are to be given within a period of three weeks (from the date of passing of the order of
the Hon’ble Apex Court) and reply to the same was to be filed within a period of three weeks thereafter and the decision was to be taken within a
period of four weeks from the date of filing of the reply. Till such a decision is to be taken, status quo shall be maintained. However, this order is not
applicable to an encroacher which is on “public roadâ€.
At this stage, it must also be stated that Dehradun where the encroachment drive is being undertaken comes under the development authority which
is Mussoorie Dehradun Development Authority (MDDA) and no construction activity is permissible in a development area without the permission of
the Development Authority. The provisions of the Uttar Pradesh Urban Planning and Development Act, 1973 are also applicable in the present case.
The relevant Section applicable in the present case is 26-A which reads as under:-
“26-A. Encroachment or obstruction on public land.â€" (1) Whoever makes any encroachment on any land not being private property, whether
such land belongs to or vests in the authority or not in a development area, except steps over drain in any public street, shall be punishable with simple
imprisonment for a term which may extend to one year and with fine which may extend to twenty thousand rupees.
(2) Any offence punishable under sub-section (1) shall be cognizable.
(3) Whoever by placing or depositing building material or any other thing whatsoever, or otherwise makes any obstruction in any street or land not
being private property, whether such street or land belongs to or vests in the Authority or not in a development area, except steps over drain in any
public street, or placing of building material during such period as may be permitted on payment of stacking fees on a public street of public place, shall
be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to two thousand rupees or with
both.
(4) If there are grounds to believe that a person has made any encroachment or obstruction on a land in a development area which is not a private
property the Authority or an officer authorised by it in this behalf may serve upon the person making encroachment or obstruction, a notice requiring
him to show cause why he shall not be required to remove the encroachment or obstruction within such period not being less than fifteen days as may
be specified in the notice, and after considering the cause, if any, shown by such person, may order removal of such encroachment or obstruction for
reason to be recorded in writing:
Provided that any encroachment made on public land by a person belonging to weaker section on or before the date of commencement of the Uttar
Pradesh Urban Planning and Development (Amendment) Act, 1997 shall not be removed until alternative land or accommodation is offered to
rehabilitate him in such manner and on such terms and conditions as maybe prescribed.
Explanation.â€" For the purposes of this section, the expressionâ€
(1) ‘a person belonging to weaker section’ means a personâ€
(a) whose family on the date of commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997 does not hold any
immovable property in any city as defined in the Uttar Pradesh Municipal Corporation Act, 1959 or any Municipal Area defined in the Uttar Pradesh
Municipalities Act, 1916, and
(b) whose principal source of livelihood is manual labour, including the practice of any craft, either by himself or by the members of his family and
includes a rickshaw-puller or scavenger, but does not include a person who has been assessed to income tax under the Income Tax Act, 1961 or trade
tax under the Uttar Pradesh Trade Tax Act, 1948 or Sales Tax under the Central Sales Tax Act, 1956.
(2) ‘family’ in relation to a person belonging to weaker section, means the husband or wife, as the case may be, and unmarried minor children
either or both of them.
(5) Notwithstanding anything contained in the forgoing provisions the Authority of the officer authorised by it in this behalf shall, in addition to the
action taken as provided in this section, also have power to seize or attach any property found on the land referred to in this section or, as the case
may be, attached to such land or permanently fastened to anything attached to such land.
(6) Where any property is seized or attached by an officer authorised by the Authority he shall immediately made in a report of such seizure or
attachment to the Authority.
(7) The Authority may make such orders as it thinks fit for proper custody of the property seized or attached, pending the conclusion of confiscation
proceedings, and if the property is subject to speedy and natural decay, or it is otherwise expedient so to do the Authority may order it to be sold or
otherwise disposed of.
(8) Where any property is sold as aforesaid, the sale proceeds after deducting the expenses, if any, of such sale and other incidental expenses relating
thereto, shall
(a) where no order of confiscation is ultimately passed by the Authority, or
(b) where an order in appeal so requires, be paid to the owner thereof or the person from whom it is seized or attached.
(9) Where any property is seized under sub-section
(5), the Authority may order confiscation of such property.
(10) No order for confiscation of any property shall be made under sub-section (9) unless the owner of such property or the person from whom it is
seized or attached is givenâ€
(a) a notice in writing, informing him of the grounds on which it is proposed to confiscate the property;
(b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of
confiscation; and
(c) a reasonable opportunity of being heard in the matter.
(11) Any order of confiscation under this section shall not prevent the infliction of any punishment to which the person affected thereby may be liable
under the Act.
(12) Any person aggrieved by an order made under sub-section (9) may within one month from the date of the communication to him of such order,
appeal against it to the District Judge.
(13) On such appeal, the District Judge may, after giving an opportunity to the appellant and the respondent of being heard, pass such order as he may
think fit confirming, modifying or setting aside the order appealed against, and pending appeal, may stay the operation of such order on such terms, if
any, as he thinks fit.â€
Learned State Counsel Mr. K.N. Joshi and the learned counsel for MDDA Mr. Rahul Consul have informed this Court that the alleged
encroachment is on Haridwar Road, which is “public roadâ€, and therefore, the present case is not covered by the aforesaid order of the
Hon’ble Apex Court as encroachment on public road has been excluded.
According to the petitioners, however, though there is no encroachment on the public road but in spite of this, they have received a notice dated
05.07.2018 and they have been asked to remove the encroachment by 06.07.2018. They further submit that the area of encroachment has also not
been specified in the notice and reasonable time has not been granted to the petitioners.
Learned counsel for the petitioners therefore limits and states that petitioners are willing to remove the encroachment, provided they are told in
writing as to how much is the encroachment which needs to be removed by them.
In view of the above statement made by the learned counsel for the petitioners, the MDDA and the Nagar Nigam shall apprise the petitioners in
writing as to the actual area of encroachment before undertaking the demolition. The writ petition stands disposed.
Let a certified copy of this order be given today itself on payment of usual charges.