Virendra Singh Panwar vs The State of Uttarakhand and Others

Barin Ghosh, C.J.—It is reported that the petitioner is dead. Right to sue in a public interest litigation survives, even if the petitioner in the public interest litigation is dead, provided the litigation is bona fide. In such a case, the Court can proceed by appointing an Amicus Curiae.

As pleaded in Paragraph-1 of the writ petition, petitioner filed a writ petition on the same cause of action, but the same was dismissed on the ground that the allegation that unauthorized constructions are being made is not supported by any evidence. Present writ petition has been filed, where similar allegations have been levelled and those are supported by a First Information Report lodged by Nagar Nigam, Dehradun. It has been contended that despite the said First Information Report, illegal construction on the land belonging to Nagar Nigam is continuing. The gist of the First Information Report, which was lodged on 23rd May, 2013, is that, according to the information given on 20th May, 2013, the owner of Hotel Pacific Sri S.S. Bansal is making construction on a part of Khasra No. 15 belonging to Nagar Nigam.

One Shri Harshvardhan Mishra filed an affidavit on behalf of Nagar Nigam. In the said affidavit, amongst others, it was contended that no No Objection of Nagar Nigam was obtained with regard to the place in question, and that, on receiving information, Nagar Nigam stopped the construction work on the land of Nagar Nigam and a First Information Report was lodged.

One Manish Kumar Jain filed affidavits on behalf of Pacific Development Corporation Ltd. and M/s. Hardwin Buildcon Pvt. Ltd said to be a subsidiary of Pacific Development Corporation-Ltd. Hence, it was stated as follows:

(A) Gyan Jyoti Trust purchased 6751 sq. meters of land comprised in Khasra No. 19Ka, 19Kha, 20Ka and 20Ba(Gha) on a public auction from Nagar Nigam and, in connection therewith, a sale deed was registered on 29th October, 2003. A copy of the sale deed was annexed. According to the said sale deed, Nagar Nigam transferred 0,091 Hectare in Khasra No. 19Ka, 0.0290 Hectare in Khasra No. 19Kha, 0.547 Hectare in Khasra No. 20Ka and 0.0081 Hectare in Khasra No. 20Ba, a total of 0.6751 Hectare or 6751 sq. meters, situate in Village Kishanpur, Pargana Central Doon, District Dehadun bounded on the East by the property of Gyan Jyoti Trust, on the North by the property of Nagar Nigam, on the West by the property of Vidhya Mandir Society and on the South by the property of Nagar Nigam.

(B) The said Trust purchased from different persons, as it appears from the sale deed dated 29th October, 2003, 0.0250 Hectare in Khasra No. 20Ga and 0.0938 Hectare in Khasra No. 20Kha. It appears that 0.0081 Hectare in 20Ba became 0.0081 Hectare in 20Gha.

(C) On 10th March, 2003, Nagar Nigam granted approval for construction of boundary wall and retaining wall.

(D) On 24th December, 2003, Tehsildar made demarcation and, in that regard, Lekhpal submitted a report on 28th February, 2004.

(E) On 7th April, 2007, the Society namely Vidya Mandir Society obtained permission from the District Judge to sell some of its properties.

(F) On 26th February, 2013, the said Trust transferred to M/s. Hardwin Buildcon Pvt. Ltd. 0.0250 Hectare in Khasra No. 20 Gha, 0.0938 Hectare in Khasra No. 20 Kha, 0.0910 Hectare in Khasra 19 Ka, 0.0290 Hectare in Khasra No. 19Kha, 0.5470 Hectare in Khasra No. 20 Ka and 0.0081 Hectare in 20Gha, comprising of a toted area of 0.7939 Hectare or 7939 Sq. meters, situate at Village Kishanpur, Pargana Pachhawadun, District Dehradun.

(G) The said Society was owner of 0.0920 Hectare in Khasra No. 18Kha, 0.8050 Hectare in Khasra No. 19Ga, and 0.0100 Hectare in Khasra No. 24 Kha, a total of 0.9070 Hectare situate at Village-Kishanpur, Pargana Pachhawadun, District Dehradun and the said property was sold to M/s. Hardwin Buildcon Pvt. Ltd. on 23rd February, 2013.

(H) The said Trust was also owner of 0.0030 Hectare in Khasra No. 11Ya, 0.3440 Hectare in Khasra No. 21, having a total area of 0.3470 Hectare or 3470 sq. meters, situate in Village Kishanpur, Pargana Pachhawadun, District Dehradun, which was situated on the East of the property purchased by the said Trust from Nagar Nigam and the said property was also sold to M/s. Hardwin Buildcon Pvt. Ltd. on 26th February, 2013.

(I) The properties, thus purchased, have been mutated in the revenue records.

(J) On 19th July, 2013, M/s. Hardwin Buildcon Pvt. Ltd. obtained sanction from MDDA.

(K) After the First Information Report was lodged, M/s. Hardwin Buildcon Pvt. Ltd. applied to SDM for demarcation of boundary wall on 15th May, 2013, in order to sort out the issue. For that, certain amount was required to be deposited and the same was deposited on 6th July, 2013. Thereafter, 7th August, 2013 was fixed for demarcation, but since none appeared on behalf of Nagar Nigam, demarcation could not be done. 31st August, 2013 was fixed for demarcation, but on that date too, no demarcation could be made.

(L) On 12th September, 2013, Lekhpal, Police Sub Inspector and Revenue Inspector visited the premises and reported that no construction is being carried on any part of the lands of Nagar Nigam and, in particular those situate in Khasra No. 15.

One Shri Banshidhar Tiwari, Secretary of Mussoorie Dehradun Development Authority, has filed an affidavit on behalf of the said Authority. In Paragraph-7 of the said affidavit, it has been stated that it is wrong to allege that any unauthorized construction was being made on the left side of Mussoorie Road before Petrol Pump near Mussoorie Diversion Road and it is further wrong to state that any construction of illegal flats and multi-storeyed apartments was being raised, as alleged by the petitioner. It has been stated that, on receipt of the complaint dated 23rd May, 2013 from Nagar Nigam with regard to encroachment over its land, the Authority, by its letter dated 4th June, 2013, directed not to start any work/construction till the demarcation of the land is made and completed by Nagar Nigam and the Revenue Department. It was held out in the letter that in case any construction has been found on the land of Nagar Nigam, the same shall be treated as unauthorized, against which, demolition proceeding will be initiated. On 12th September, 2013, the land in question was demarcated and verified by the Revenue Inspector, Lekhpal and Sub Inspector and it was found that no encroachment was made on the 5 land belonging to Nagar Nigam. It has further stated that no encroachment was done on the land of Nagar Nigam and no construction was made thereon.

By an order dated 28th October, 2013, we requested the Sub Divisional Magistrate, Sadar, Dehradun to measure the land under construction in presence of the person responsible for making construction as well as in presence of a responsible officer of Nagar Nigam, Dehradun, to be nominated by Nagar Nigam, Dehradun. Accordingly, measurement was done on 23rd November, 2013 in presence of representatives of the person responsible for making the construction as well as in presence of responsible officers of Nagar Nigam, Dehradun. The Sub Divisional Magistrate, Sadar, Dehradun, has filed a report, where he has not stated that construction has been made on any pat of the land situate in Khasra No. 15. It has, however, been stated that a part of the land situate in Khasra No. 19 has gone into the drain.

Though an opportunity was given to file affidavits taking exception to the said report of the Sub Divisional Magistrate, Sadar, Dehradun and though an objection thereto has been filed on behalf of M/s. Hardwin Buildcon Pvt. Ltd, but no objection has been filed by Nagar Nigam.

The question was not, whether a part of the land, purchased through auction, is in the Nala or not? The question was, whether any construction has been made on any part of the land situate in Khasra No. 15? Nagar Nigam, despite getting opportunities, has made no effort to establish the same.

In the circumstances, can it be said that the public interest litigation was bona fide and, accordingly, the same should continue to redress the grievances highlighted therein by appointing an Amicus Curiae. In the circumstances as above, we cannot come to such a conclusion.

The writ petition is, accordingly, dismissed. All interim orders are vacated.