Sandeep Kaur & Others vs State Of Uttarakhand & Others

Vipin Sanghi, CJ

1) There are 16 writ petitioners in the present petition. They have preferred this petition to assail the notices dated 07.10.2022, issued to all of them by respondent No. 4, i.e., Tehsildar, Vikas Nagar, Dehradun, alleging encroachment by them on river beds, requiring them to clear their encroachment within three days.

2) The petitioners also seek consequential relief for a direction to respondents not to demolish their houses without adopting the process of law, as provided under Section 209 of the U.P.Z.A. & L.R. Act. The petitioners seek a direction to the respondents for regularization of their possession in respect of their houses, as provided by the Government Order dated 02.11.2020. Mr. Khan states, that the said Government Order states that persons in unauthorized occupation on government lands since 1983, are entitled to get their possession regularized.

3) First and foremost, we find that the notices were issued to the petitioners as early as on 07.10.2022, whereas this petition has been preferred by them collectively only in June 2023, i.e., nearly eight months after the issuance of the notices, assailed in this petition.

4) Mr. Khan has submitted that the notices alleged encroachment on a water body, however, the petitioners are not occupying land on a water body. The real issue, in our view, is – whether the petitioners are encroaching on public land, or is the land over which they claim possession in their ownership? The petitioners have not been able to establish, even prima facie, their ownership. On the other hand, a joint team had prepared a report, which had been placed on the record of writ petition (PIL) No. 58 of 2019, which shows that the petitioners are occupying lands falling in a water body. Pertinently, neither that report prepared by the joint team is produced, nor assailed by the petitioners.

5) Mr. Khan submits that the possession of the petitioners stands recorded in the abadi of the village in question, i.e., Village Rampur Kalan, Tehsil Vikas Nagar, Dehradun. He submits that the petitioners have been provided with electricity and other amenities. In this regard, bills raised by the authorities have been placed on record. The Khasra abadi has also been placed on record, which shows possession of individuals of the land in question. Mere possession of the petitioners’, over a parcel of land in respect whereof the khasra abadi has been placed on record, does not vest a title on the petitioners. We, therefore, reject the aforesaid submission of Mr. Khan.

6) However, we have enquired from Mr. Khan - as to whether, there is any documents to show the title of the petitioners’ to the land claimed by them. Except in respect of petitioner Nos. 2 and 6, no document has been placed on record by any of the other petitioners to claim title to the land in respect whereof the notices dated 07.10.2022, have been issued. Pertinently, notices allegedly issued to petitioner Nos. 2 and 6 have not been placed on record, and, therefore, there is no certainty – whether, in fact, they have been issued notices, and, if so, in relation of which parcel of land. The notices issued to the petitioners take note of the fact that a joint team had carried out a survey of the encroachments made on the river bed / water bodies, and the report prepared in that regard was placed before this Court in Writ Petition (PIL) No. 58 of 2019, Urmila Thapa Vs State of Uttarakhand, along with counter-affidavit dated 19.03.2019. Based on the said report, this Court had passed orders on 31.08.2022, in the said writ petition, directing the respondent authorities to immediately start the process of removal of encroachments on river beds, which had already been identified, and placed on record along with the aforesaid counter-affidavit. The notices were issued in pursuance of the said directions issued by this Court.

7) From the documents placed on record, and the reliefs sought by the petitioners, it is evident that they do not have title to the lands in respect whereof they have been issued notices. Even, in respect of petitioner Nos. 2 and 6, it is not clear – whether, notices have been issued to them, and if so, in respect of which parcels of land. The petitioners had all the time in the world to establish their title to the land over which they are alleged to be encroaching. However, they have not taken any steps in that regard, and have approached this Court, after a gap of over eight months.

8) We are exercising our extraordinary discretionary jurisdiction, and we are not obliged to come to the rescue of persons, who are found to be in encroachment of public property. A writ cannot be issued to perpetuate an illegality. There is no vested right in the petitioners to protect their illegality. The petitioners have raised several disputed questions of fact which, even otherwise, we are not in a position to go into, in writ proceedings.

9) We, therefore, find no merit in this petition. We may also refer to our detailed judgment in Anchal Kumar Paswan and others Vs Union of India and others, passed in Writ Petition (M/B) No. 74 of 2023, decided on 17.05.2023. The writ petition is, accordingly, dismissed.

10) Interim relief application (IA No. 01 of 2023) also stands disposed of.