Shaukat vs District Magistrate Haridwar And Others

Ramesh Ranganathan, CJ

Heard Mr. Mohd. Safdar, learned Counsel for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State, and, with their consent,

this writ petition is disposed of at the stage of admission.

The proceedings under challenge in this writ petition is the order passed by the Tehsildar, Roorkee dated 02.07.2019 calling upon the petitioner to

remove the encroachments within 10 days. The said order records that, pursuant to the order of this Court in WPPIL No. 07 of 2019 dated

07.05.2019, a Revenue Team was constituted which, in its report, informed that the petitioner had illegally encroached upon Khasra No.124 Mi.,

Rakba 0.150 hectare situated in Village Kanhapur Ahatmaal, Sub-Division and Tehsil Roorkee. By the said notice dated 02.07.2019, the petitioner was

informed that he should remove the encroachment himself within 10 days, and give possession to the Village Council; and, if he wished to present his

version in this connection, then he should do so within the stipulated period of 10 days. The petitioner was also informed that, if he did not remove the

encroachment on government land, it would then be removed by administrative action, and the expenses incurred in this regard would be recovered

from him.

A Division Bench of this Court had, in its order passed in WPPIL No.07 of 2019 (Bisarat Ali v. State of Uttarakhand and others) dated 07.05.2019,

observed: -

“Recording the submission of the learned Deputy Advocate General that the State Government would complete the exercise of

demarcation and ear-marking of the subject land 3 within six weeks from today; and the encroachers would be put on notice, be given an

opportunity of being heard, and an order passed in accordance with law within two months thereafter, the Writ Petition is closed. The

second respondent is directed to complete the exercise of demarcation and ear-marking the land; and in evicting the encroachers, if any,

therefrom in accordance with law at the earliest, and, in any event, within four months from todayâ€​.

In terms of the aforesaid order, the Tehsildar was obligated to first complete the exercise of demarcation and earmarking of the subject land, put

the encroachers on notice, give them an opportunity of being heard, and thereafter pass an order in accordance with law.

In the present case, by proceedings dated 02.07.2019, the petitioner has been directed to remove the encroachments, while at the same time, being

asked to show cause within 10 days. The very purpose of issuing the show cause notice is to invite objections from the alleged encroacher, consider

his representation, and determine whether or not there has been an encroachment. It is only after a reasoned order is passed considering his

objections, and it is held therein that the petitioner is an encroacher, would the Tehsildar then be justified in removing the encroachments, in case the

petitioner fails to do so on his own accord.

In the case on hand, the petitioner has, on receipt of the proceedings dated 02.07.2019, submitted his reply thereto on 11.07.2019, a copy of which

has been filed along with the writ petition. Admittedly, no order has been passed by the Tehsildar thereafter.

Suffice it, instead of keeping the writ petition pending on the file of this Court, to direct that the proceedings dated 02.07.2019 be treated as a show

cause notice, and since the petitioner has already submitted his reply thereto on 11.7.2019, to direct the Tehsildar to consider the objections raised by

the petitioner, and pass a reasoned order, uninfluenced by his observations in his earlier proceedings dated 2.7.2019; communicate his decision to the

petitioner; if he is held to be an encroacher, to grant him reasonable time of around two weeks to vacate the subject land on his own accord; and, in

case he fails to do so, to then take action thereafter, in accordance with law, to remove the encroachment.

Needless to state that till the Tehsildar passes an order as directed hereinabove, and communicates the same to the petitioner, no coercive action

shall be taken to dispossess the petitioner from the land in his possession.

The writ petition is, accordingly, disposed of. No costs.