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2022 DIGILAW 92 (UTT)

Rajeev Kumar v. State of Uttarakhand

2022-04-25

MANOJ KUMAR TIWARI, R.C.KHULBE

body2022
JUDGMENT : Manoj Kumar Tiwari, J. Petitioners in these six writ petitions are challenging the order dated 07.03.2022 passed by Municipal Commissioner, Municipal Corporation, Kotdwar, District Pauri Garhwal, whereby they have been directed to remove their encroachment from nazool/Government land or else such encroachment shall be removed by the Municipal Corporation at the cost and expense of petitioners. 2. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of WPMS No. 693 of 2022 are being considered. 3. Writ Petition (M/S) No. 693 of 2022 has been filed by Mr. Rajeev Kumar, S/o late Kishore Kumar seeking the following relief:- “(i) call for the records of the case and issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 07.03.2022 passed by the respondent no. 2 holding the petitioners to have encroached upon the public land (Annexure-8).” 4. In the writ petition, it is stated that a Public Interest Litigation, [Writ Petition (PIL) No. 03 of 2020] was filed for removal of encroachment from footpath within limits of Nagar Nigam Kotdwar and a Division Bench of this Court disposed of the same by recording the statement made by State Counsel that all encroachments will be removed within eight weeks. 5. It transpires that SLP filed against the said order was disposed of by Hon’ble Supreme Court on 18.12.2020 with liberty to the persons, who filed SLP, to move the High Court with an appropriate petition/application. Pursuant to liberty granted by Hon’ble Supreme Court, review applications were filed and Division Bench of this Court disposed of the review applications, vide order dated 25.02.2021. Operative portion of the said order is extracted below:- “6. Therefore, this Court directs the Municipal Corporation Kotdwar, District Pauri Garhwal to issue individual notices to the alleged encroachers granting them fifteen days’ time to place their documents and their side of story in order to establish the fact that they do have a right to continue to occupy the Nazool land and footpaths. An opportunity of hearing should be given to the alleged encroachers and after giving such an opportunity, a reasoned order needs to be passed by the Municipal Corporation Kotdwar. An opportunity of hearing should be given to the alleged encroachers and after giving such an opportunity, a reasoned order needs to be passed by the Municipal Corporation Kotdwar. Since this exercise will require sufficient time, this Court grants the Municipal Corporation, Kotdwar two months’ time to complete the exercise. In case, the alleged encroachers are still aggrieved by the reasoned order passed by the Municipal Corporation Kotdwar, they shall be free to take recourse to the legal remedies available to them.” 6. Pursuant to order passed by Division Bench of this Court on 25.02.2021, individual notice was issued to petitioner by Municipal Commissioner on 03.03.2021, which is enclosed as Annexure-4 to the writ petition. In the said notice, extent of encroachment was mentioned and petitioner was given opportunity to produce document, in support of his contention that he has not encroached upon public land. By the said notice, petitioner was informed that he can appear in the office of Municipal Commissioner, on 23.03.2021, for personal hearing. 7. Reply given by petitioner to the aforesaid notice is enclosed as Annexure-5 to the writ petition. Perusal of the reply reveals that petitioner had raised various objections, including the objection that land in question is ‘Nazul’ land, therefore, does not belong to Nagar Nigam, Kotdwar. However, in para no. 9 of the reply, it was stated that as per Nazul manual published by a private publisher, the land in question is not Nazul land. The plea of limitation was also raised by contending that the structure in question is more than 30 years old, therefore, it cannot be disturbed, after such long delay. 8. The impugned order dated 07.03.2022 is on record as Annexure-8 to the writ petition. It refers to the notice given to petitioner on 03.03.2021, calling upon petitioner to show cause regarding encroachment on pavements to the extent of 225.75 square feet. In para 2 of the order, it is stated that Pachpan Singh Gusign, Authorized Representative of the petitioner was present at the time of hearing. Reply to the notice given by petitioner is also signed by Pachpan Singh Gusign, who is described as an Advocate, therefore, the contention raised by Mr. Sudhir Kumar, learned counsel that petitioner was not given personal hearing by the Municipal Commissioner cannot be accepted. Reply to the notice given by petitioner is also signed by Pachpan Singh Gusign, who is described as an Advocate, therefore, the contention raised by Mr. Sudhir Kumar, learned counsel that petitioner was not given personal hearing by the Municipal Commissioner cannot be accepted. Likewise, the submission made by learned counsel for the petitioner that date of hearing was originally fixed as 25.03.2021, but was preponed to 23.03.2021 without notice to petitioner is also not borne from the record. In the notice also, the date of hearing is mentioned as 23.03.2021 and not 25.03.2021. 9. Perusal of impugned order further reveals that after submission of reply, survey of the site was ordered in view of stand taken by petitioner that he has removed the encroachment, however, the survey team which visited the site on 22.06.2021, found that encroachment is not removed. Thereafter again on 27.01.2022, a joint survey of the site was held, in which it was found that the encroachment is yet to be removed by petitioner, therefore, having regard to the survey report, Municipal Commissioner ordered for removal of encroachment. The report of the survey team is on record as Annexure-9 to the writ petition, which indicates that encroachment made by petitioner over footpath was still continuing. 10. Learned counsel for the petitioner submits that petitioner’s father was granted lease in respect of Nazul land and subsequently lease hold right was converted to freehold, therefore, petitioner cannot said to be an encroacher over Nazul land. 11. The said submission is bereft of merit. Merely because petitioner was leased out a plot for residential purpose and now he has been granted free hold right in respect of the said plot does not lead to the inference that petitioner has not made any encroachment over adjoining Government land. Whether petitioner has raised construction within four-corners of the land leased out to him or he has encroached upon adjoining public land, is a question of fact. If part of the structure raised by him extends beyond the land for which lease/free hold right was given to him, then it will be treated as encroachment and would be liable to be removed. The reply given by petitioner to the notice is silent on this aspect whether construction raised by him is within limits of the land leased out to him. The reply given by petitioner to the notice is silent on this aspect whether construction raised by him is within limits of the land leased out to him. From the material available on record, it appears that free hold right was given to petitioner for much lesser area, therefore no part of structure raised by petitioner can go beyond the land for which free hold right is given to him. 12. It is not the case of petitioner that impugned order has been passed against him due to ill will or malice by any officer of Municipal Corporation. In the absence of such allegation, impugned order has to be treated as having been passed in bonafide exercise of power. Thus, the contention raised by petitioner that he has been wrongly asked to remove encroachment without there being any encroachment, cannot be accepted, especially when such contention was not raised by petitioner in his reply to the notice. 13. It is admitted position that anti-encroachment drive was initiated in view of order passed by this Court in a Pubic Interest Litigation, as this Court was concerned about encroachment over footpaths, pavements and national highways. The site in question was surveyed by Municipal authorities before and after issuance of notice and in all the survey reports, it was found that petitioner had encroached upon foot path/Government land. Petitioner has not questioned correctness of the survey report at any stage nor he has contended that there is any foul play in the matter. 14. Scope of judicial review of an administrative action is very limited, and this Court cannot sit in appeal over the decision taken by an administrative authority, while exercising power of judicial review. In such view of the matter, there is no scope for interference with the impugned order. 15. Accordingly, writ petitions fail and are dismissed.