WPPIL/172/2014 of Abdul Rehman Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (PIL) No. 172 of 2014

Abdul Rehman.

.………. Petitioner

Versus

State of Uttarakhand & others.

...………. Respondents

Mr. S.K. Mandal, Advocate for the petitioner. Mr. H.M. Bhatia, Brief Holder for the State of Uttarakhand / respondent Nos. 1 to 5. Mr. Jitendra Chaudhary, Advocate for respondent No. 6. Mr. Pankaj Purohit, Advocate for respondent No. 7. Mr. Pramod Belwal, Advocate for respondent Nos. 8 to 12.

JUDGMENT

Coram: Hon’ble K.M. Joseph, C.J. Hon’ble V.K. Bist, J.

Dated: 21stApril, 2015

K.M. JOSEPH, C.J. (Oral)

Petitioner has approached this Court seeking the following relief:

“I. Issue writ order or direction in the nature of mandamus directing and commanding the respondent no. 1 to 6 to remove the illegal encroachment of any person and restore the original position of the Government land in Khasra No. 791 area 0.0400 hectare Verg 5-3-D barren land and Khasra No. 791 (Min) area 0.5060 hectare recorded in Verg-6.1 water locked land (Talab) situated in Mahua Khera Ganj Tehsil Kashipur, District Udham Singh Nagar, further be directed to take necessary steps to protect the aforesaid Government / Public utility land.” directing and commanding the respondent no. 1 to 6 to remove the illegal encroachment of any person and restore the original position of the Government land in Khasra No. 791 area 0.0400 hectare Verg 5-3-D barren land and Khasra No. 791 (Min) area 0.5060 hectare recorded in Verg-6.1 water locked land (Talab) situated in Mahua Khera Ganj Tehsil Kashipur, District Udham Singh Nagar, further be directed to take necessary steps to protect the aforesaid Government / Public utility land.”

2. Briefly put, the case of the petitioner is that there is encroachment on public land by the private respondents and there is inaction. counter affidavit has been filed on behalf of respondent Nos. 3, 4 & 5, wherein it is, inter alia, stated as follows:

“3. That the instant writ petition has been filed for direction to remove illegal encroachment over the government land (water logged) in Mahuakhera Ganj Tehsil Kashipur District Udham Singh Nagar alongwith the further prayer for taking

necessary steps to protect the government / public utility land. It is submitted that the land in question i.e. Khasra no. 791/1 having in area of .506 hectares has been recorded in the revenue reports as water logged land under class 6(1) and Khasra no. 791/2 having in area of .040 hectares recorded under class 5(3) as cultivable waste land. It is submitted that it has been found that on the aforesaid land the private respondents have encroached and have created habitation (Abaadi) over it. It is submitted that, since the aforesaid land has come under the jurisdiction of Nagar Panchayat Mahuakhera Ganj, the respondent no. 6 had been directed to ensure removal of the encroachment immediately. It is further submitted that the encroachment of respondent no. 8 to 12 is about 10-12 years old, however the encroachment of the respondent no. 7 is of recent past. It is submitted that, when the encroachment was being removed, the respondent no. 7 challenged the same in the court of Civil Judge (J.D.) Kashipur, through Civil Suit no. 361/2013 wherein status-quo orders have been issued on 01.02.2014. copy of the order dated 01.02.2014 is being annexed herewith as Annexure no. C.A.-1to this affidavit. It is stated here that due to the aforesaid order of the Civil Court the encroachment could not be removed till date.”

3. We have heard the learned counsel for the parties.

4. The judgment of this Court in the case of Suresh Kumar Maurya vs. State of Uttarakhand & others, reported in 2012(2) U.D. 51, as also the judgment of the Hon’ble Apex Court in the case of Santosh Sood vs. Gajendra Singh & others, reported in (2009) 7 SCC 314, are pressed before us to contend that Public Interest Litigation should not be entertained when there is civil suit pending in the matter. As far as respondent No. 7 is concerned, it has been claimed that he has filed suit and obtained an order of status quo. No doubt, the learned counsel for the petitioner has case that there is collusion between respondent No. 7 and the Nagar Palika.

5. The learned counsel for the Nagar Palika would submit that, as far as respondent No. 7, as also the other private respondents, is concerned, action could not be taken on account of the interim order passed by the Civil Court and clarification will be moved before the Civil Court in regard to the matter. He would also submit that action, as per law, will be taken against the other private respondents for removal of encroachment.

6. We take note of the pendency of the proceedings before the Civil Court and dispose of the writ petition recording that action will be taken by the Nagar Palika honouring the orders passed by the Civil Court and as per law for removal of encroachment. We only observe that the Civil Court will dispose of the matter as early as possible.

(V.K. Bist, J.) 21.04.2015

(K.M. Joseph, C. J.) 21.04.2015