Jindi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Nagesh Aggarwal, learned counsel for the petitioner and Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand and, with their consent, the writ petition is disposed of at the stage of admission.

The relief sought for in this writ petition is for a writ of certiorari to quash the notice dated 28.11.2018 issued by respondent No.3; and a writ of Mandamus commanding the respondents to decide her objections dated 05.12.2018 before taking any coercive measures pursuant to the notice dated 28.11.2018.

By the impugned proceedings dated 28.11.2018, the petitioner was informed that, in compliance with the directions of this Court in Writ Petition (PIL) No. 198 of 2016 dated 05.09.2018, all encroachment on lakes and ponds were directed to be removed; and, since the petitioner's land is located on a pond, he should remove the encroachment within a week, failing which action would be taken by the Nagar Panchayat to have the encroachment removed.

The petitioner's complaint in this writ petition is that the subject land is not located on a pond; she had purchased the said property, by way of a registered sale deed, in the year 2009; she had obtained permission from the Nagar Panchayat to raise construction; though she had submitted a reply to the notice, vide her letter dated 05.12.2018, her representation is not being considered; and the Nagar Panchayat is taking coercive measures to have her building demolished.

While the directions issued by this Court earlier, to remove encroachments on land located on ponds, necessitates compliance, the question, whether or not the subject plot is located on a pond, is one of fact; and in case the person, who is asked to remove the encroachments, is able to show that the subject land is private property, and is not land located in a pond, then the earlier order of this court does not require such structures to be demolished.

Suffice it, in such circumstances, to treat the impugned order dated 28.11.2018 as a show cause notice; and, since the petitioner has already filed her reply thereto on 05.12.2018, respondent No.3 shall consider the said representation in accordance with law, pass a reasoned order thereupon, and communicate his decision to the petitioner; and, in case they are satisfied for reasons to be recorded in writing that the subject land falls within the limits of a pond, to then take action in terms of the Judgment of this Court in Writ Petition (PIL) No. 198 of 2016 dated 05.09.2018. The entire exercise, culminating in a reasoned order being passed and being communicated to the petitioner, shall be completed at the earliest; and, in any event, within one month from the date of production of a certified copy of this order.

The writ petition stands disposed of accordingly. No costs.