Principal, De Vito High School, Bhowali vs Pargana Magistrate/Sub-Divisional Magistrate, Nainital And Others

R.C. Khulbe, J

Since both these petitions have been filed with the similar prayer to issue a writ, order or direction in the nature of certiorari to quash order dated 14.07.2015 passed by the Pargana Magistrate / Sub-Divisional Magistrate, Nainital, hence, these are being taken together and decided by this common order.

It is the contention of the learned counsel for the petitioners that the schools have raised construction over the lands, which belong to the schools prior to the notification. Accordingly, the Uttar Pradesh Roadside Land Control Act, 1945 is not applicable in the matter and no proper opportunity of hearing was given to the writ-petitioners before issuing the impugned notice.

Per contra, learned counsel for the State as well as learned counsel for the Nagarpalika Parishad Bhowali submitted that the petitioners have made boundary wall / retaining wall after the notification dated 09.12.1968-69 and no permission was taken by the petitioners from the competent authority before the construction.

As per the record, it is an admitted fact that boundary wall / retaining wall existed outside the school campus. The concerned Sub-Divisional Magistrate issued notice to the petitioners in compliance of the order dated 13.11.2014 passed in WPPIL No.183 of 2014 and the petitioners were directed to remove the encroachments.

From perusal of the record, it is clear that the concerned Magistrate did not make a joint inspection in presence of the writ-petitioners, which shows that, at the time of conducting the survey, the petitioners were not duly represented and no sufficient opportunity was given to them to submit their representation. The Sub-Divisional Magistrate issued the notice for removal of the encroachments simply on the basis of the order dated 13.11.2014 passed in WPPIL No.183 of 2014.

In the instant petitions the main question arise for consideration is that whether the boundary wall / retaining wall were constituted before 1969 or thereafter. The Court cannot record the evidence regarding it at the time of hearing the writ-petition. It is the duty of the Sub-Divisional Magistrate to find out the truth after giving sufficient opportunity of hearing to the writ-petitioners, the Nagarpalika and the PWD Bhowali. Accordingly, we reached to this conclusion that the matter should be remanded back to the concerned Sub-Divisional Magistrate for ascertaining the fact that whether the boundary wall / retaining wall were constituted before 1969 or thereafter.

In that view of the matter, we dispose of these writ-petitions setting aside the impugned order dated 14.07.2015 passed by the Sub-Divisional Magistrate, Nainital and remitting the matter back to the concerned Sub-Divisional Magistrate, who will pass a fresh order after due survey and giving sufficient opportunity of hearing to the writ-petitioners as well as to the concerned Department. The whole exercise will be completed within a period of three months from the date of receipt of a certified copy of this order.

All pending applications also stand disposed of.