Ram Prasad vs State of Uttarakhand & others

SUDHANSHU DHULIA, J. (ORAL)

A Public Interest Litigation being WPPIL No.47 of 2013 for removal of encroachment and unauthorised construction, including encroachment on

public land and road came up for hearing before a Division Bench of this Court. The Division Bench of this Court ordered for removal of

encroachment with a number of directions contained in its order dated 18.06.2018. This Court has been informed that consequent to that order, a joint

encroachment removal drive was initiated by the District Administration, the Development Authority and the Municipal Corporation in Dehradun,

which is presently the provisional capital of the State. Admittedly, the drive is not just for removal of unauthorised constructions but also for

encroachments on public land, including public road.

This Court has been informed that one such person, who was affected by the anti-encroachment drive, approached the Hon’ble Apex Court by

way of filing an SLP. The said SLP was disposed of by the Hon’ble Apex Court vide its order dated 04.07.2018 modifying the directions of the

Division Bench to some extent. The Hon’ble Apex Court has directed that removal of encroachment can only be done by following principle of

natural justice and fair play, and therefore a show cause notice ought to be given within a period of three weeks (from the date of passing of the order

of the Hon’ble Apex Court) and reply to the same was to be filed within a period of three weeks thereafter and the decision was to be taken

within a period of four weeks from the date of filing of the reply. However, the Hon’ble Apex Court clarified that this modification will not include

any encroachment which is on “public roadâ€. Meaning thereby, that the removal of encroachment on a public road can go on as per the direction

of the Division Bench of this Court.

The petitioner being aggrieved by the removal of the encroachment has filed the present writ petition before this Court.

Learned Counsel for the MDDA Mr. Rahul Consul has apprised this Court that the encroachment made by the petitioner is on a public road.

Rebutting this allegation, the learned counsel for the petitioner would argue that there is no encroachment on a public road at the hands of the

petitioner.

At this stage, it must be said that Dehradun, where the encroachment drive is presently on was declared long back a “Development Areaâ€,

where there is a Development Authority, created under the provisions of U.P. Urban Building and Planning Act, 1973, and without permission of this

Authority no construction can be made in Dehradun. Moreover, as far as removal of encroachment on public land is concerned, the same has to be

done under the provisions given in Section 26-A of the U.P. Urban Building and Planning Act. Thereafter Section 26-B, 26-C and 26-D further

provide as to what has to be done after removal of such encroachments. It speaks, inter alia, about compensation to be given in some cases and the

procedure therein, etc.

A perusal of the order dated 18.06.2018 passed by the Division Bench of this Court shows that the order was passed after the satisfaction of the

Court that there is an encroachment in Dehradun at various places. This satisfaction is based on the report which was placed before the Division

Bench. The Hon’ble Apex Court, while modifying the order dated 18.06.2018 passed by the Division Bench of this Court, said as under:-

“On a perusal of the directions contained in paragraph 19 of the impugned order passed by the High Court, we find that the High Court has

directed for removal of unauthorised encroachments. Thereafter, it has proceeded to issue series of directions. We are really not concerned with the

general directions given by the High Court. However, we are inclined to modify the order passed by the High Court to the extent that the competent

authority of Nagar Nigam, Dehradun shall issue appropriate notices to the unauthorised encroachers and follow the due procedure and thereafter evict

them if they are found to have encroached. The show cause notices shall be issued within three weeks from today and reply to the same shall be filed

within three weeks therefrom and the decision shall be taken thereon within four weeks. Till the decision is taken by the competent authority, status

quo, obtaining as on today, shall remain in force.

Our direction shall apply in respect of all the encroachers as there has to be removal of encroachments after following the principle of natural justice

unless it is on a public road. Our direction shall only apply to the encroachments which had been existing earlier. If there is any kind of encroachment

after the order of the High Court, the same shall be removed after giving 24 hours notice.â€​

(emphasis supplied)

A perusal of the order passed by the Hon’ble Apex Court shows that notices have to be given for removal of encroachment, except when such

an encroachment is on “public roadâ€​.

In this case, the petitioner apprehends that his residential house is liable to be demolished. Therefore, what is at stake is a residential house. It is not

a commercial area, the counsel for the petitioner would emphasise.

In view of the above submission and considering the urgency in the matter, this writ petition is disposed of at the admission stage itself. Although

no interference is being made in the ongoing encroachment drive, but only by way of an abundant precaution, it is made clear that before proceeding

further in its demolition, the District Magistrate, Dehradun shall record his “satisfactionâ€, that the demolition is actually of an encroachment on

public road. After recording his satisfaction, can the District Magistrate proceed with the demolition if the encroachment is on public road or public

property.