Mukesh Kashyap vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

We find considerable force in the submission of Mr. Aditya Singh, learned counsel for respondents 3 and 4, that the bonafides of the petitioner is

suspect as it is on the basis of a complaint, made by respondents 3 and 4 in this writ petition, that the father of the petitioner was denied rights over the

roof top of the shops let out by the Nagar Nigam, Roorkee. We are, however, also satisfied that the cause in the writ petition is in larger public

interest. We, therefore, treat this writ petition as SUO MOTU public interest litigation, and the petitioner shall stand deleted from the array of parties

in the writ petition.

The complaint, in the writ petition, is that respondents 3 and 4 have encroached upon government land (land belonging to Nagar Nigam, Roorkee) of

an extent of 75 cms. While Mr. Aditya Singh, learned counsel for respondents 3 and 4, would draw our attention to several documents in support of

his submission that respondents 3 and 4 were entitled to raise construction on the extended extent of 75 cms. (2 ½ feet), the stand of the Nagar

Nigam, Roorkee, in its counter affidavit, is that respondents 3 and 4 had encroached upon a greater extent of land belonging to it. The record discloses

that there is also an INTER SE dispute between the State Government and the Nagar Nigam, Roorkee regarding ownership of the subject land.

In paragraph 3 of the counter affidavit, filed by the Nagar Nigam, Roorkee, it is stated :

“That the contents of the para no. 2 of the writ petition as stated are correct, as such respondent no. 4 was allotted a shop in an auction in the year

1990 on premium. In the year 1997 the respondent no.4 moved an application that the shop allotted to him got damaged and thus the same requires

repair and the respondent no. 4 was granted permission to repair the said shop on his own expenses for which the estimate was submitted for Rs.

33,210/-only, as when the repair was made respondent no. 4 encroached 85 cms land of south side, although the width of the shop was 2.95 mtrs. And

respondent no. 4 got the wall constructed on south side at 3.9 mtrs encroached about 95 cms of the land on south side with depth of 3.95 mtrs. The

said land was earmarked for making stair case for the roof of the said 8 shops. Thus respondent no. 4 has encroached upon the land of respondent

no.2 measuring 0.95 x 3.95 mtrs. and thus stair case could not be constructed.â€​

As the Nagar Nigam, Roorkee claims that respondents 3 and 4 have encroached upon its land, they are obligated in law to take action for eviction

of respondents 3 and 4 therefrom in accordance with law. That does not, however, give the Nagar Nigam a license to straightway demolish the

construction raised on the subject land, which they claim has been encroached upon. They are only entitled to take action against respondents 3 and 4

in accordance with law, meaning thereby that they are obligated in law to put respondents 3 and 4 on notice, give them an opportunity of being heard,

pass a reasoned order dealing with the contentions raised by respondents 3 and 4 in their reply to the show cause notice, and thereafter take action,

for reasons recorded in writing, if need be for their eviction in accordance with law.

Suffice it, in such circumstances, to dispose of the writ petition directing the Nagar Nigam, Roorkee to take action, as aforesaid, with utmost

expedition and, in any event, not later than three months from the date of receipt of a certified copy of this order.

It is made clear that we have not expressed any opinion on the rival claims, of the Nagar Nigam, Roorkee and that of respondents 3 and 4,

regarding whether there is any encroachment on land belonging to the Nagar Nigam.

The writ petition is, accordingly, disposed of. No costs.