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2024 DIGILAW 475 (UTT)

Prabha Gururani v. State of Uttarakhand

2024-07-09

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : (Rakesh Thapliyal, J.) 1. By the instant petition, the petitioners are praying for the following reliefs:- “i) Issue a writ, order or direction in the nature of certiorari quashing the notice dated 17-01-2024 issued by the respondent no. 4 and 6 and the notice dated 22-02-2024 issued by the respondent no. 4 (contained in Annexure no. 1 to this writ petition). ii) Issue a writ, order or direction in the nature of certiorari mandamus directing the respondents not to take forceful possession of the land under the ownership of the petitioners and not to demolish the boundary wall and gate of the petitioners in pursuant to the notice dated 17-01-2024 and 22-02-2024. iii) Pass any other or further order(s)/ writ(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case. iv) Award the cost of the petition to the petitioner.” 2. The main contention of the petitioners is that the predecessor of the petitioners, namely, late Harish Chandra Gururani was having certain agricultural land in khasra No. 29, who was continuously cultivating the aforesaid land and also constructed a house. In the year 2006, the Public Works Department, Construction Division, Haldwani issued a notice to Harish Chandra Gururani, regarding encroachment towards the Haldwani-Kaladhungi Road, which was replied by the predecessor vide letter dated 20.02.2006, Annexure-3 to the petition. Thereafter, Public Works Department withdrew the notice by observing that in future if the land is required for widening of road then adjoining land would be taken with the consent of the owner. Subsequently, the predecessor of the petitioners died on 17.06.2011 and after his death, names of the petitioners have been recorded in the revenue records. 3. It is submitted that part of the land, located in khasra No. 29, came in the share of Himanshu Gururani, who happens to be the cousin of petitioner Nos. 2 and 3 and nephew of petitioner No. 1. When he decided to raise a construction over khasra No. 26 and 29, he applied for conversion of the land from agricultural to non-agricultural as per Section 143 of UPZA & LR Act before the Assistant Collector, 1st Class, Haldwani, District Nainital. On 10.03.2015, the Assistant Collector, Haldwani declared .009 hectare land of khasra No. 29 and .018 hectare of khasra no. 26, total measuring 0.027 hectares, to be a non-agricultural land. 4. On 10.03.2015, the Assistant Collector, Haldwani declared .009 hectare land of khasra No. 29 and .018 hectare of khasra no. 26, total measuring 0.027 hectares, to be a non-agricultural land. 4. It is submitted that the Haldwani-Kaladhuni Road is being widened on both sides, and for that purpose, the Public Works Department wanted more land; however, without ascertaining that the present petitioners are the owners of the land falling in Khasra No. 29, a notice was issued on 08.01.2024, whereby a direction was issued to remove the encroachment. Pursuant to the said notice, the petitioner No. 3 approached to the Assistant Engineer, PWD, Construction Division, Haldwani that the notice is bad on two grounds; firstly, the said notice is sent in the name of a dead person and secondly, the land which is alleged to have been encroached is a bhumidhari land. 5. It is also contended that thereafter, another notice was issued on 17.01.2024, and the said notice was replied. It is submitted that again a further notice was issued by the respondent/department on 22.02.2024, containing the same allegations as was in the previous notices. Thereafter, the petitioner approached to Amin, called the area to be measured with the help of old records and map and said report reveals that the petitioners are in possession over their own land and the allegations of the encroachment are all baseless. 6. It is also contended that a detailed response was also given by the petitioners on 11.03.2024 and thereafter the official respondents came and tried to remove the gate and boundary wall of the petitioners by saying that the same is on the Government land. With all these averments, the present writ petition has been filed. 7. On 15.03.2024, learned counsel for the petitioners had referred the order passed by this Court in WPPIL No. 14 of 2024, whereby the District Magistrate, Nainital had appeared before this Court and made a statement that a Committee has been constituted on 20.02.2024 to examine the issue of encroachment by giving personal hearing to all the affected persons. 8. After taking into consideration the said order, this Court directed that the status quo be maintained in respect of the possession of the petitioners and since the Committee was already constituted, the Committee was also directed to examine all the replies along with the documents, which are the part of this petition. 9. 8. After taking into consideration the said order, this Court directed that the status quo be maintained in respect of the possession of the petitioners and since the Committee was already constituted, the Committee was also directed to examine all the replies along with the documents, which are the part of this petition. 9. Thereafter, a short counter affidavit has been filed by respondent Nos. 2 & 3 and in para 4 of the said affidavit, it is submitted that pursuant to the order passed by this Court on 15.03.2024, the members of the Committee vide letter dated 06.05.2024 called upon the petitioners to appear before the Committee on 09.05.2024 with the relevant records of the land owned by the petitioners in order to place their case/version before the Committee, constituted by the District Magistrate, Nainital on 20.02.2024. 10. The petitioners did not appear before the Committee on 09.05.2024 and the Committee again, by letter dated 10.05.2024 fixed the matter for hearing on 16.05.2024 and as a last opportunity the petitioners were directed to appear before the Committee on 16.05.2024 with all the relevant documents. 11. Thereafter, the petitioner Nos. 1 & 3 appeared along with their counsel before the Committee on 16.05.2024 and the Committee after hearing the version of the petitioners and after perusing the records decided to carry out the spot inspection and also for the spot measurement of the land of the petitioners. 12. Thereafter, the Executive Engineer, Construction Division PWD, Haldwani, by letter dated 16.05.2024 directed the petitioners to remain present on 19.05.2024 at 4 p.m. for the spot inspection as well as for the demarcation of the land of the petitioners. 13. In para 7 of the short counter affidavit, it is submitted that on 19.05.2024 at about 4PM the team comprising of SDM Haldwani, Tehsildar Haldwani, Executive Engineer, Construction Division PWD Haldwani, Assistant Engineer Construction Division, PWD Haldwani, Junior Engineer Construction Division, PWD Haldwani, Nayab Tehsildar Haldwani, Revenue Sub Inspectors of Lohariyasal, Kamaluaganja, Kusumkhera, Damuadhunga, Arjunpur and petitioners alongwith their Advocates were present on the spot for carrying out the spot inspection and measurement of the land of the petitioners. 14. 14. In para 8 of the affidavit it is contended that since the area where the petitioner resides at present is densely populated area, as such in order to carry out the spot measurement/demarcation of the land of the petitioners, the Canal (Gool) which is situated in Khasra No. 57 of village Bamori Talli Bandobasti was taken as a fixed point for carrying out the spot measurement/demarcation of the land of the petitioners. 15. It is also submitted that during the spot measurement and also perusing the revenue records it was found by the Committee that the petitioners are the owner of the land situated in village Bamori Talli Kham over Khasra No. 29 and the petitioners by exceeding the area have constructed the boundary Wall over Khasra No. 30 by encroaching total area 0.024 hect. of land which is 4 mtr. in width and 61 mtr. in length and the land of Khasra No. 30 is recorded in the revenue record as Category 6(2) road, which is a government land. 16. It is further submitted in the affidavit that the spot inspection and spot measurement/ demarcation was carried out in the presence of petitioners and their advocates and during the spot measurement/ demarcation of the land of the petitioner, the Committee found that the petitioners have instead of constructing the Boundary Wall over Khasra No. 29 which is owned by the petitioners have constructed the boundary wall over Khasra No. 30 which is recorded in the revenue record as Category 6(2) road and by constructing the boundary wall over Khasra No. 30 have encroached total area 0.024 hect. of land which is 4 mtr. in width and 61 mtr. in length of Khasra No. 30 and the land of Khasra No. 30 is recorded in the revenue record as Category 6(2) road, which is a government land. 17. of land which is 4 mtr. in width and 61 mtr. in length of Khasra No. 30 and the land of Khasra No. 30 is recorded in the revenue record as Category 6(2) road, which is a government land. 17. In para 9 of the affidavit it is submitted by the learned counsel for the respondents that during the spot inspection and spot measurement demarcation of the land of the petitioners the photography was also done, the Map was also prepared by the revenue authorities and presence memo of 19.05.2024 was also prepared, which was duly signed by the Members of the Committee alongwith the petitioners and their Advocates showing their presence at the time of carrying out the spot inspection and spot measurement demarcation of the land of the petitioners and besides this the drone photography of the site was also carried out. 18. In para 10 of the affidavit, it is contended that the Sub Divisional Magistrate, Haldwani on 20.05.2024 submitted the demarcation report to the Additional District Magistrate, Nainital on 20.05.2024. It is also contended that the Committee after carrying out the spot inspection and spot measurement/ demarcation of the land of the petitioners submitted its report to the District Magistrate, Nainital on 21.05.2024. In the inspection report, the Committee has categorically mentioned that the petitioners have constructed the boundary Wall over Khasra No. 30 by encroaching the area which is 4 mtr. in width and the land of Khasra No. 30 is recorded in the revenue record as Category 6(2) road. 19. It is submitted by the learned counsel for the respondents that as per the demarcation report and the inspection report submitted by the Committee headed by the Additional District Magistrate, Nainital, the petitioners have constructed the boundary wall over khasra No. 30 which is recorded in the revenue records as Category 6(2) road by constructing the boundary wall over khasra No. 30 have encroached total area of 0.024 hectare of land which is 4 meter in width and 61 meter in length of khasra No. 30 and the land of khasra No. 30 is recorded in the revenue record as category 6(2) road which is government land. 20. In response to this, the petitioners have filed rejoinder affidavit and denied the averments made in the short counter affidavit. 21. 20. In response to this, the petitioners have filed rejoinder affidavit and denied the averments made in the short counter affidavit. 21. This Court, after gone through the averments as made in the short counter affidavit, as well as the documents appended thereto comes to a conclusion that the petitioners have encroached the land and this conclusion has been drawn by the Committee after due verification by doing spot inspection as well as the measurement and also after perusing the record. This Committee consists of Revenue Officers, therefore, there is no any question of creating any doubt on this report. 22. Thus, it appears that the petitioners have not approached with clean hands and they themselves are the encroachers of the land, therefore, we dismiss the petition with a direction to the authorities to proceed as per the report of the Committee.