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2018 DIGILAW 381 (UTT)

PREMA BOHRA v. STATE OF UTTARAKHAND

2018-07-12

SUDHANSHU DHULIA

body2018
JUDGMENT Hon'ble Sudhanshu Dhulia, J. (Oral) A Public Interest Litigation being WPPIL NO. 47 of 2013 for removal of encroachment and unauthorized 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 this 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 unauthorized constructions but also for encroachments on public land, including public road. 2. 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 S.L.P. 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 road". 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. 3. However, the Hon'ble Apex Court clarified that this modification will not include any encroachment which is on “public road". 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. 3. The petitioners being aggrieved by the removal of the encroachment have filed the writ petition before this Court with the following prayers: “i) A writ, order or direction in the nature of Mandamus commanding the Respondents, their employees and instrumentalities to not to proceed to demolish the constructions/structures and boundary wall standing on the property of the petitioners on Kaulagarh Road, Dehradun and also to not to trespass into the private properties of the petitioners as described in Annexures 1 to 6 attached herewith, for widening of the existing Kaulagarh Road beyond 50 feet, without acquiring the private properties in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. ii) A writ order or direction in the nature of certiorari for quashing the orders issued to the petitioners attached and marked as Annexure 11." 4. Learned counsel for the State, Mr. K.N. Joshi and learned counsel for the Development Authority*, Mr. Rahul Consul have apprised this Court that the encroachment made by the petitioners is on a public road, namely, Kaulagarh Road. 5. Rebutting this allegation, the learned counsel for the petitioners would argue that there is no encroachment on a public road at the hands of the petitioners. The petitioners have annexed certain maps, including sanction map for their constructions, etc. 6. At this stage, it must be said that Dehradun, where the encroachment drive is presently on was declared long back a “Development Area", 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. 7. 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. 7. 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 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 unauthorized 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 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." (Emphasis supplied) 8. 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 road". 9. In this case, the petitioners apprehend that the wall of their residential colony, is liable to be demolished. Therefore, what is at stake is a wall of a residential colony. 9. In this case, the petitioners apprehend that the wall of their residential colony, is liable to be demolished. Therefore, what is at stake is a wall of a residential colony. It is not a commercial area, the counsel for the petitioners would emphasize. 10. In view of the above submission and considering the urgency in the matter, this writ petition is disposed of at the admission stage. 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 the District Magistrate, Dehradun shall record his “satisfaction", that the demolition is actually of an encroachment on public road. This is being done as in case the construction is not on a public road, then the compliance of the directions of the Hon'ble Apex Court will have to be made. 11. Let a certified copy of this order be issued today itself on payment of usual charges.