Pooja And Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Parikshit Saini, learned counsel for the petitioners, Mr. Paresh Tripahti, learned Chief Standing Counsel for the State of Uttarkhand/respondent nos. 1 to 3, Mr. Rajeev Bisht, learned Advocate holding brief of Mr. Ashish Joshi, learned counsel for the fourth respondent and Mr. Rahul Consul, learned counsel for the fifth respondent and, with their consent, the writ petition is disposed of at the stage of admission.

The petitioner has invoked the jurisdiction of this Court seeking a writ of mandamus commanding the respondents not to intrude into the property in peaceful possession of the petitioners; to cause impartial enquiry against those officers responsible for this arbitrary and illegal act of trespass; and a writ of mandamus commanding the respondents not to demolish the property at Plot No. 154/A, Neshvilla Road, Dehradun, District Dehradun.

The encroachment removal drive was undertaken at Dehradun pursuant to the order passed by a Division Bench of this Court in WP(PIL) No. 47 of 2013 dated 18.06.2018, the contents of which we shall refer to a little later in this order. Aggrieved by the order passed by the Division Bench, the jurisdiction of this Supreme Court was invoked in SLP diary No. 24083 of 2018 dated 18.06.2018; and, as a result, the directions issued by the High Court were modified by the Supreme Court in part. A notice was issued on 05.07.2018 calling upon the petitioner's mother to remove the encroachment on or before 06.07.2018 at 8:00 A.M. i.e. a notice of 24 hours. The petitioners claim to have replied to the show cause notice on 05.07.2018 contending that the subject construction was raised after due approval from the Development Authority. However, an exercise of demolition was undertaken on 13.07.2018, questioning which the writ jurisdiction of this Court was invoked.

In its order, in WPMS No. 1342 of 2019 dated 20.05.2019, a Division Bench of this Court observed that the petitioner had the remedy of approaching the Tribunal constituted under Section 26-B of the Uttar Pradesh Urban Planning Development Act, 1973 (for short the "1973 Act") to claim compensation. The petitioners were granted permission to avail such a remedy within a period of three months from the date of order, and the Authority was directed to examine the petitioner's claim on its merits, without having regard to the period of limitation stipulated under Section 26-B of the 1973 Act.

The petitioners claim to have approached the Tribunal in compliance with the earlier order passed by this Court. They have again invoked the jurisdiction of this Court apprehending a further exercise of demolition being undertaken by the development authority. The order of the Division Bench, on whose directions the exercise of demolition was undertaken, is the order passed in WPMS No. 47 of 2013 dated 18.06.2018. Among the general directions, which were issued by the Division Bench, are those to the Municipal Corporation/MDDA/PWD/ State functionaries calling upon them to remove all unauthorized encroachment on public footpaths/ public streets/ public roads/ public pavements, including unauthorized constructions made over them, within a period of four weeks, from the date of the order by using its might. It was left open to the State functionaries to impose Section 144 Cr.P.C. while demolishing the illegal structures built on Government and Municipal land/footpaths/streets.

While this order makes no reference to any notice being required to be issued, the fact remains that this order was modified by the Supreme Court, in its order in SLP Civil diary no. 24083 of 2018 dated 04.07.2018, albeit to a limited extent. By the aforesaid order, the Supreme Court modified the order of the Division Bench of the High Court to the extent that the Competent Authority of the MDDA/PWD was directed to issue an appropriate notice to the unauthorized encroachers following the procedure, and thereafter evict them if they have been found to be encroachers. While directing the respondents to issue a show cause notice within a period of three weeks, and to the petitioner to file their reply thereto within three weeks thereafter, the authorities were directed to take a decision within a period of four weeks from the date of receipt of the reply.

The Supreme Court, however, made it clear that the directions, issued by them would apply only to encroachers; and encroachers should be evicted following the principle of natural justice, unless it was a public road. The Supreme Court further observed that these directions would apply against encroachers who were existing earlier; and, if there is any kind of encroachment later, the same shall be removed after giving 24 hours notice.

Mr. Rahul Consul, learned counsel for the fifth respondent, would submit that, while the order of the Supreme Court required a notice to be given and for opportunity of hearing to be provided to all encroachers, an exception was made regarding public roads; the subject encroachment was on a public road; and, even in terms of the order of Supreme Court, no notice was required to be given for such encroachments.

Mr. Parikshit Saini, learned counsel for the petitioner, would draw our attention to the notice issued on 05.07.2019 to contend that the impugned notice makes no mention of the construction, raised by the petitioner, to be on a public road. It is, however, unnecessary for us to dwell on this aspect. Suffice it to observe that in case encroachments, if any, are found by the MDDA/PWD on land, other than on which a public road has been laid, then, in terms of the order of the Supreme Court, the alleged encroachers shall be put on notice, and be given an opportunity of being heard. If the MDDA/PWD is satisfied that the encroachments is on a public road, it shall then give a notice to the encroacher informing them that the encroachments are on a public road, and that strict action would be taken forthwith. Compliance with these directions shall ensure that an arbitrary and illegal exercise, of demolition of construction, is not resorted to.

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

Let a certified copy of this order be issued to learned counsel for the parties within two days on payment of the prescribed charges.