Pooja vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The relief sought for in this writ petition is for a mandamus directing the respondents not to intrude into the property in peaceful possession of the petitioner, and undertake any further demolition exercise on her plot; for a mandamus commanding the respondents to award fair compensation for demolition of the boundary wall on her plot; for a mandamus commanding the respondents to cause an impartial inquiry against those officers responsible for the arbitrary and illegal action of trespassing and destroying the residential property without verification of title; and for a mandamus commanding the respondents not to demolish the property raised on her plot.

The demolition exercise was undertaken jointly by the Public Works Department, Uttarakhand, the Mussoorie Dehradun Development Authority, the Dehradun District Administration as well as the Dehradun Nagar Nigam, pursuant to an order passed by a Division Bench of this Court in Writ Petition (PIL) No. 47 of 2013 dated 18.06.2018, whereby several directions were issued, including a direction to the Municipal Corporation / MDDA / State functionaries to remove all unauthorized encroachments on public footpaths / streets / roads / pavements, including unauthorized constructions made over them, within a period of four weeks from the date of the order. The Division Bench further observed that it was open to the State functionaries to impose Section 144 Cr.P.C, while removing the demolition of the illegal structures built on government and municipal lands / footpaths / streets.

While several other directions were also issued, it is not necessary for us to refer to all of them, since the directions issued by the Division Bench of this Court were modified by the Supreme Court, in its order in Special Leave Petition (Civil) No. 240832 of 2018 dated 04.07.2018. In terms of the said order of the Supreme Court, the Dehradun Nagar Nigam was required to issue appropriate notices to the unauthorized encroachers, and follow due procedure; and, thereafter, evict them if they were found to have encroached. Show cause notices were directed to be issued within three weeks from the date of the order, and a reply to the same was to be filed within three weeks therefrom. The decision was to be taken thereon within four weeks, and till a decision was taken by the competent authority, status quo was directed to remain in force. The Supreme Court made it clear that the direction would apply in respect of all the encroachers as there had to be removal of encroachments after following principles of natural justice, unless it was on a public road; the direction would apply only to encroachments which were existing earlier; and if there was any kind of encroachment, after the order of the High Court, the same should be removed after giving 24 hours' notice. With the aforesaid modification, the Special Leave Petition was disposed of.

It is not in dispute that the petitioner was put on notice by the Mussoorie Dehradun Development Authority, to which she submitted her reply, and it is only thereafter that the demolition exercise was undertaken.

While the petitioner relies on a registered sale deed to contend that the compound-wall was constructed only on her property, it is contended by Sri Rahul Consul, learned counsel for the Mussoorie Dehradun Development Authority, that the petitioner had raised the compound-wall on a public road; and the authorities were, therefore, justified in removing the unauthorized construction / encroachment.

As the demolition exercise was undertaken in terms of the order passed by the Supreme Court, the respondents cannot be faulted in undertaking such an exercise. That would, however, not mean that the respondents can demolish structures raised by individuals on their private lands, and not on Government lands / public roads / footpaths.

The question which would necessitate examination is whether the petitioner is justified in contending that the compound-wall raised by her was on her land, or whether the Mussoorie Dehradun Development Authority is right in stating that the compound-wall was constructed on a public road which the petitioner had encroached upon.

Disputed questions of facts are, ordinarily, not examined in proceedings under Article 226 of the Constitution of India. It is wholly unnecessary for us to dwell on this issue, since a remedy is provided to the person aggrieved, by the removal of obstruction or encroachment, under Section 26-B of the Uttar Pradesh Urban Planning and Development Act, 1973 (for short 'the 1973 Act'), which relates to claim for compensation for removal under Section 26-A. Section 26-B (1) stipulates that any person aggrieved by the removal of obstruction or encroachment, under sub-section (4) of Section 26-A, may, within thirty days from the date of such removal, prefer a claim for compensation or restitution or both before the Tribunal against either the Authority, or the officer ordering the removal or against both, and for making such officer personally liable for the loss caused to him due to such removal.

While Sri Munish Bhardwaj, learned counsel appearing on behalf of Sri Parikshit Saini, learned counsel for the petitioner, would submit that the said remedy is no longer available to the petitioner, since the demolition exercise was undertaken on 13.07.2018, and more than thirty days have since elapsed, Sri Rahul Consul, learned counsel for the Mussoorie Dehradun Development Authority, would state that, in case the petitioner avails the remedy under Section 26-B of the 1973 Act within three weeks from today, the respondents will not object to the said application being entertained on the ground of limitation.

Recording the aforesaid submission of Sri Rahul Consul, learned counsel for the Mussoorie Dehradun Development Authority, and as all these facts can be effectively adjudicated by the Tribunal under Section 26-B of the 1973 Act, on evidence being adduced by both the parties, we see no reason to examine the rival contentions, urged by learned counsel on either side, on merits. Suffice it, while relegating the petitioner to avail the remedy of approaching the Tribunal under Section 26-B of the 1973 Act, to observe that, in case the petitioner avails such a remedy within three weeks from today, her claim shall be examined on its merits without having regard to the period of limitation stipulated under Section 26-B of the 1973 Act.

The writ petition stands disposed of accordingly. No costs.