NAFEES vs STATE OF UTTARAKHAND AND OTHERS

Sharad Kumar Sharma, J

The appellant is the writ petitioner in Writ Petition No.1520 of 2017. The petitioner in the Writ Petition has challenged the notice of demolition dated

01.06.2017 said to have been issued by the respondent whereby the respondents have observed in the notice that the appellant has raised an

unauthorized construction by encroaching the public property lying by the side of the road it is required to be removed. The direction which has been

issued is in pursuance to the notice dated 08.06.2017, said to have been issued in furtherance of the order passed by the Division Bench in a PIL

No.128 of 2016, based on which the respondents had taken a demolition drive at public places where there exists unauthorized construction in

Township of Jaspur, District Udham Singh Nagar. The Division Bench of this Court after taking into consideration the averments of the

petitioner’s counsel and all parties to writ petition pertaining to the width of road and its gradual reduction with the passage of time due to the

encroachment being made on either side, consequently leaving a very narrow strip open for the people at large to commute, the Division Bench after

taking note of the pleading of counter affidavit filed by the Executive Engineer, PWD Kashipur, Udham Singh Nagar wherein he has fortified the fact

that the width of the road is 40 feet to 80 feet and the same has now been narrowed down by the encroachment. The Division Bench disposed of the

PIL with the following direction

“In view of the averments made in the counter affidavit and in view of the statement given by the learned Brief Holder, Mr. H.M. Bhatia, we close

the writ petition. However, we make it clear that in case any assistance is required by the PWD Department for removal for the encroachers, the

concerned department (administration) will provide the same as per the law.

The Writ Petition (PIL) is closedâ€​

The learned Single Judge vide impugned order dated 27.06.2017 under challenge in the instant appeal had dismissed the Writ Petition holding

thereof, that since the notice dated 08.06.2017, happens to be in compliance of the judgment rendered by the Division Bench in the PIL, the Single

Judge has taken a view that the Single Judge cannot interfere in the matter as order is in compliance of Division Bench order, however it left it open

for the petitioner to seek an appropriate remedy from the Division Bench. Being aggrieved against the said order, the petitioner / appellant has filed the

instant special appeal.

On scrutiny of the notice dated 08.06.2017 impugned in the writ petition, pertaining to the removal of the encroachment, it was observed that the

petitioner has encroached upon public land by raising pakka construction, boundary wall and tin shed, which happens to be within the prohibited area

as public land and on the distances taken from the centre of the road. He was directed to remove the same on his own. Thereby the petitioner was

given time to remove the construction by 22.06.2014.

Heard Mr. Avtar Singh Rawat, Sr. Advocate assisted by Dr. K.Hari Gupta, Advocate for the appellant and Mr. Harendra Belwal, Brief Holder for

the State of Uttarakhand/ respondents.

On scrutiny of the impugned judgment under challenge in appeal, the incapacity which has been expressed by the learned Single Judge from

interfering in the matter is because of the fact that since the notice as addressed to the petitioner for removal of the construction is based upon a

decision rendered by the Division Bench in the PIL. The learned Single Judge had rightly observed that no contrary view could be taken by the

learned Single Judge while scrutinizing over the action which is taken on the basis of the judgment of the Division Bench and since, the notice itself

happens to be as a consequence of the judgment of Division Bench no interference was held to be called for by the learned Single Judge, however,

the Court had kept it open for the appellant to seek an appropriate remedy before the Division Bench. There is no mistake or error in the impugned

action taken by way of notice dated 08.06.2017 for the reason that it has been conclusively held by way of the findings of the Division Bench

judgment which is based on the report of the Executive Engineer that the pakka construction raised by the appellant is well within prohibited /

restricted zone of construction as measured from the centre of the road. Since, the notice in question has been issued as an action based in compliance

of the judgment of the Division Bench, no mistake has been committed by the learned Single Judge in declining to interfere. Even this Court while

sitting in a Division Bench cannot sit in an appeal against the judgment of the Coordinate Division Bench directing the removal of the construction by

an order passed in the PIL. Thus, we find no error in the impugned judgment. The same is affirmed. The special appeal is dismissed.Â

No order as to costs.Â