IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 10TH DAY OF JUNE, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 1018 of 2021
BETWEEN: Mahmood & another ...Petitioners
(Mr. T.A. Khan, Senior Advocate)
AND:
State of Uttarakhand & others ...Respondents
(Mr. J.S. Bisht, learned Standing Counsel for the State of
Uttarakhand and Dr. K.H. Gupta, learned counsel for
respondent no. 4.)
JUDGMENT
1. By means of this writ petition, petitioners have sought following reliefs:-
(i) To issue a writ, order or direction in the nature of certiorari quashing the order dated 17.04.2021, passed by Sub Divisional Officer (Dy. Collector), Bazpur, District Udham Singh Nagar (Annexure No. 2 to the writ petition)
(ii) To issue a writ, order or direction in the nature of certiorari quashing the report of Advocate Commissioner dated 17.04.2021 (Annexure No. 15 to the writ petition).
(iii) To issue a writ, order or direction in the nature of mandamus directing the respondent (Dy. Collector) to get measure the land belonging to category IV in possession of the petitioners measuring about 950 sqmtr leaving out 75 feet from the front of National Highway and leaving out the land of Nala (measuring the width of Nala as 20 feet (6 meter) in the back side of the land in possession of the petitioners and the respondents may restrained not to cause hinderance in the possession of the petitioners over the land measuring about 950 sqmtr having the meets and bound of the measurements as mentioned in the site plan which is annexed as Annexure no. 11 to the petition.
2. It transpires that one Mohammad Akram had filed WPPIL No. 59 of 2016 for removal of encroachment over plot nos. 803, 827/1, 827/4 and 463 of Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar, which was recorded as pond land (water body) in the Revenue Record.
3. The said writ petition was disposed of by Division Bench of this Court vide order dated 04.09.2018. Subsequently, on a recall application moved by the affected persons, the final order dated 04.09.2018 was recalled and certain directions were issued to the State Government vide order dated 03.12.2018. Operative portion of the order dated 03.2.2018 is reproduced below:-
17. As the petitioner himself sought a mandamus only for a directions to be issued, in terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), we are of the view that the Division Bench was not justified in issuing directions, which not only run contrary to what the Supreme Court has held, but also go far beyond the relief sought for in the writ petition itself. We consider it appropriate, therefore, to recall the order passed in this writ petition dated 04.09.2018, and instead direct the Government of Uttarakhand to prepare a scheme for eviction of illegal/unauthorized occupants of municipal lands in the State, which are covered by water bodies such as lakes, ponds, streams, water- courses etc. As directed by the Supreme Court the scheme shall provide, among others, for a showcause notice to be given to the encroachers and to be provided an opportunity of a brief hearing. The State Government shall also take note of the exceptions carved out by the Supreme Court in the aforesaid judgment regarding lease granted under a Government Notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes or areas where there exists a school, dispensary or other public utility on the land.
18. The scheme shall be prepared at the earliest and, in any event, not later than six months from the date of receipt of a certified copy of this order; and action shall be taken forthwith, after such scheme is formulated, to evict encroachers or unauthorized occupants from such land in accordance with the said scheme. Needless to state that, on such a scheme being prepared and notices being issued to those in possession of the land in terms of the scheme so formulated, it is open to persons in possession of such land, to whom the notices are given, to put forth all such defenses as are available to them in law including that the subject land, over which they are in possession, has not been a water body after the 1950 Act came into force.
4. Thereafter, Sub-Divisional Magistrate, Bazpur passed an order on 11.02.2021, whereby petitioners were asked to remove their encroachment over water body within thirty days and it was further provided in the said order that on the failure of the petitioners to remove their encroachment, the same shall be removed at the cost and expense of the petitioners.
5. Against the order dated 11.02.2021 passed by Sub-Divisional Magistrate, petitioners filed WPMS No. 555 of 2021. The said writ petition was disposed of vide order dated 09.03.2021. Relevant extract of the said order is reproduced below:-
"6. The dispute, which petitioners are trying to raise in the present writ petition involves disputed question of facts, namely, whether petitioners encroached upon land belonging to water-body or not; and further whether the land, which is presently under occupation of the petitioners, is in excess to the land for which they have applied for regularisation. For adjudicating such disputed question of facts, oral evidence would be needed besides report of the Survey Commissioner, therefore, this Court is not inclined to entertain this writ petition.
7. Having regard to the facts and circumstances of the case, the writ petition is disposed of with a direction to the Sub-Divisional Magistrate, Bajpur, District Udham Singh Nagar to get the land under occupation of the petitioners measured by a Survey Commissioner, within three weeks from the date of receipt of certified copy of this order. If, after the said measurement, it is found that petitioners have encroached upon the land belonging to the water-body or if it is found that petitioners are occupying more land than the land for which they have applied for regularisation, then petitioners encroachment upon such excess land shall be got removed, even by using force, if need be.
8. It is further made clear that petitioners shall be informed about the date and time of measurement of their land and it shall be open to the petitioners to remain present at the time when measurement of the land in question to be done by the Survey Commissioner. For a period of four weeks status quo, as on today, shall be maintained."
6. Pursuant to the direction issued in WPMS No. 555 of 2021, Sub-Divisional Magistrate, Bazpur vide order dated 01.04.2021 appointed one Mr. Sohan Lal Goyal - Advocate, as Survey Commissioner to measure the land of the petitioners. Survey Commissioner measured the land in the presence of petitioners and Revenue Officers on 12.04.2021 and submitted his report on 17.04.2021. The said report has been challenged in the present writ petition.
7. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners submits that the report submitted by the Advocate Commissioner is erroneous, therefore, deserves to be set aside.
8. Per contra, learned Standing Counsel appearing for the State submits that the Survey Commissioner had measured the land in question in the presence of the petitioners, after taking fixed points. Learned Standing Counsel further submits that the question whether the report of the Survey Commissioner is correct or not cannot be adjudicated in writ proceedings under Article 226 of the Constitution of India, as it is basically a question of fact.
9. This Court finds substance in the contention raised by learned Standing Counsel for the State. Whether petitioners have encroached upon a water body land or not is basically a question of fact. For resolving the dispute, this Court directed measurement of the land in question by a Survey Commissioner. The Survey Commissioner has submitted a report, according to which, petitioners have encroached upon water body land.
10. Learned Senior Counsel appearing for the petitioners now contends that the report submitted by the Survey Commissioner is erroneous and needs to be set aside with a direction to the authorities to re-measure the land in question in the presence of the petitioners.
11. In the humble opinion of this Court, the issue raised before this Court cannot be properly adjudicated in writ proceedings. Whether the report submitted by Survey Commissioner is correct or not cannot be decided in a writ petition. The prayer made by learned counsel for the petitioners for re- measurement of land also cannot be accepted because then it will be an unending exercise.
12. In such view of the matter, this Court declines to entertain this writ petition. Accordingly, writ petition fails and is hereby dismissed.
No comments:
Post a Comment