Prantiya Udyog Vyapar Mandal vs State of Uttarakhand and others

K.M. Joseph, C.J. (Oral)

SHARAD KUMAR SHARMA, J.

Appellant is the writ petitioner. Appellant filed the writ petition seeking the following reliefs:

“1. To issue a writ, order or directions in the nature of ‘mandamus’ directing the respondent authorities not to de-possess/evict the residents

of Rudrapur city area from their respective properties except through due process of Law provided under U.P. Public Premises (Eviction of

Unauthorised Occupants) Act, 1972.

To issue a writ, order or directions in the nature of ‘mandamus’ directing the respondent authorities not to demolish the establishments

(residential/commercial) without giving them an opportunity of being heard.

To issue a writ, order or directions in the nature of ‘mandamus’ directing the respondent authorities to maintain a status quo with regard to

the properties in question and conduct a proper survey and planning and protect the interest of public at large.â€​

Very briefly put, the case of the appellant is as follows:

Appellant claims itself to be a Provincial Trade Division in Rudrapur and the President is fully authorized to file the writ petition on behalf of the

members/traders of the petitioner. We have noticed the reliefs. The case developed is as follows:

Members of the petitioner Division were allotted shops/residence on lease at the main market area, Rudrapur, Udham Singh Nagar. They have been

living/conducting their business there since over last 40-50 years. They are regularly paying the requisite taxes for the use of the properties they claim

to be holding title. There is reference made to the Government order dated 23.05.1992 issued by the erstwhile U.P. Government for management and

disposal of Nazool land. It is the case of the petitioner that in compliance of the said order, several residents of the city of Rudrapur applied for getting

their properties free hold in their favour and the orders for free-hold were passed in favour of those individuals and several applications are still

pending disposal. On 06.08.2011, it is contended that a report was sent to the Additional District Magistrate (Nazool) by the Executive Officer, Nagar

Palika Parishad, Rudrapur suggesting that the footpaths, green belts, roadlands and open spaces of the passages shall be considered for free hold and

hence, a proper suggestion was called for. [We are of considered view such type of correspondence by Executive Officer dated 06.08.2011, run

contrary to public policy as no right could be created over a land set out to be used for public purpose and for their interest.] The residents of the city

area of Rudrapur have been deprived of their fundamental rights, it is stated, as the respondents have issued free hold rights of the green belts, open

spaces etc of the properties adjacent to many persons of their choice. [Rather they plead a negative parity over a public utility land which at least

cannot be granted by writ courts.] There is reference to Writ Petition (PIL) No. 51 of 2016 filed before this Court culminating in Annexure 4 judgment

dated 20.06.2016. It is, in short, the case of the petitioner that a news was published in the newspapers, whereby it was directed that the members of

the District Administration and the Municipal Corporation would taking a demolition drive against the alleged encroachments on the footpaths and

green belts areas. It is the case of the appellant that the respondents are directly responsible for the present situation of the city as since last 50 years,

they have never issued show cause notice to any of the alleged encroachers. This argument cannot be sustained because inaction by authorities can

entail appropriate action against them on administrative but this itself would not grant a ground of defence against the encroachment drive.

Petitioner’s case is that before demolition, it is necessary that a report of the City Planner or the Draftsmen should be filed to measure and mark

the encroachments. There has never been any inspection by the respondents to prove, mark and measure the encroachments over the said land.

Demolition process is being carried out in absence of any proper surveys or planning, and there is no such report being filed by respondents proving

the measurements of the encroachments by the residents. [This argument of the learned counsel is contrary to the records, because in the counter

affidavit filed by Respondent No. 3 on 25.04.2018 would rather show that there were number of reports dated 15.10.2016, 21.04.2018, 23.04.2018

(Annexure Nos. 4, 5 and 6 to counter affidavit in Appeal) which show that respondents authorities constituted inspection team and held an on spot

inspection, demarcated extent of encroachment and had identified 1188 encroachers and the extent of their respective encroachment. After the

aforesaid inspection once again inspection was conducted on 21.04.2018 in relation to 37 encroachers whose areas of encroachment could not be

identified.] There is reference to the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. It is stated that the petitioner is in

possession of the property from last 40-50 years and his shop/building have been his only source of income and residence Paragraph 39 of the writ

petition reads as under:

“39. That the petitioner is in possession of the said property from last 40-50 years and his shop/building have been his only source of income and

residence. The Constitution of India identifies us as a welfare state wherein efforts must first be made to resettle the petitioners to an alternate place

but no such effort have been made in the present case and the petitioner is straight away being expelled from their properties.â€​

Demolition process being adopted by the respondents against the residents of the market area of Rudrapur, thereby by not granting them a reasonable

opportunity either to remove the alleged encroachments or to defend their case gave rise to reasonable apprehension in the mind of the residents.

The learned Single Judge in the impugned judgment noticed that the case of the petitioner is that they have received a notice from Nagar Nigam,

Rudrapur, whereby it was directed that encroachments be removed, and if it is not done, it will be removed by force. This action of the Nagar Nigam

has been challenged by the petitioner. It is further stated that they have not encroached the public property. The only contention of the petitioner is

that the measurements were done by the authorities in the year 2014 and before taking such action, a fresh measurement must be made. This stand of

petitioner is contrary to records and stand in the counter affidavit and the measurement was done before issuance of notice. Finding the writ petition to

be totally misconceived, and without any merit, as these mattes, are essentially also related to disputed questions of facts, the learned Single Judge held

that the same cannot be interfered with in a writ petition and the writ petition was dismissed in limine.

We heard Mr. Vikas Anand, learned counsel on behalf of the appellant; Mr. Narayan Dutt, learned Brief Holder on behalf of the State of

Uttarakhand/respondent Nos. 1, 2 and 4 and Mr. Vipul Sharma, learned counsel on behalf of respondent No. 3.

The writ petition was filed as Writ Petition (MS) before the learned Single Judge. It is not a writ petition, which has been filed as a Public Interest

Litigation.

We have noticed the entire reliefs. We have also noticed the order passed in public interest litigation for removal of encroachments in accordance

with law.

Mr. Vipul Sharma, learned counsel for respondent No. 3, in fact, assured the Court that action of removal of encroachment is being taken in

accordance with law. In this regard, he drew our attention to Section 292 of the U.P. Municipal Corporation Act, 1959, besides Section 296.

Since, it is not a petition, which has been filed as a Public Interest Litigation, we are unable to perceive, how the appellant could have the cause of

act action to such relief, which he has sought in the writ petition. If notices have been issued under Section 292 of the Act to 1188 such concerned

persons, its they who could be said to be aggrieved. It is noteworthy that there is no writ petition as such filed by those persons to whom notices have

been issued. Action can also be taken in law without even issuing notice (see Section 296). If encroachments are there and they are being removed in

accordance with law, we do not see, how the appellant could make out a case for interference. Regarding larger issues, which have been raised by

the appellant that this state of affair is a creation of the Authorities, we express no opinion in this matter at this stage, without any material being

placed before us, and based on hearsay statement the same could be dealt with later in an appropriate proceeding. We do not see that any ground has

been made out for interfering with the judgment of the learned Single Judge. The Appeal will stand dismissed. However, there would be no order as to

costs.