WPMS/3465/2016
2021 Latest Caselaw 1322 UK

IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
        ON THE 6TH DAY OF APRIL, 2021
                        BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


     WRIT PETITION (M/S) No. 3465 of 2016

BETWEEN:

Vivek Shukla and others.                    ....Petitioners
     (By Mr. B.C. Pande, Senior Advocate, assisted by Mr.
     Bhuwanesh Joshi, Advocate)

AND:
State of Uttarakhand & others.            ...Respondents
     (By Mr. J.P. Joshi, Additional Advocate General and Mr.
     K.N. Joshi, Deputy Advocate General for the State of
     Uttarakhand)


                      JUDGMENT

By means of this writ petition, petitioners have sought following reliefs:

"i) issue a writ, order or direction to produce the entire records culminating in annexure no. 24 & 26 to the writ petition along with order contained thereof and be further pleased to set- aside the order dated 26.03.2016 and Notice dated 14.11.2016 contained as Annexure No. 24 & 26 to the writ petition.

ii) issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to demolish the said constructions of the petitioners forever."

2. According to the petitioners, they are owners of the property situate at Charlton Lodge

Compound, Mallital, Nainital. Petitioners are challenging the notice dated 14.11.2016 issued by District Magistrate, Nainital, whereby they have been called upon to remove their encroachment from the land belonging to B.D. Pandey Hospital, Mallital, Nainital. Petitioners are also aggrieved by the order dated 26.03.2016 passed by District Magistrate, Nainital, whereby the representation submitted by the petitioners, in terms of the order passed by Hon'ble Supreme Court, has been rejected.

3. Perusal of the record shows that certain directions were issued to the State Government and District Administration in Writ Petition (PIL) No. 12 of 2009 and, pursuant to those directions, notices were issued to the petitioners.

4. The only question, which falls for consideration of this Court in this Writ Petition, is whether the petitioners are lawful owners of the property, which they claim to have been purchased by means of different sale deeds or whether the petitioners have encroached upon public land within the campus of B.D. Pandey Hospital, Mallital, Nainital. Thus, basically the dispute is regarding title over the property, which is presently in possession of the petitioners. For adjudicating the question of title, evidence, both oral and documentary, would be required to be adduced and appreciation of evidence would also be required.

5. In the humble opinion of this Court, such disputed questions of fact and title cannot be resolved in public law remedy under Article 227 of the

Constitution of India. The remedy of the petitioners would lie elsewhere.

6. In such view of the matter, this Court declines to interfere in the matter. However, petitioners would be at liberty to approach the competent Civil Court.

7. Since petitioners had filed this writ petition in the year 2016 and considerable time has been lost while petitioners pursued their remedy before this Court, therefore, petitioners are granted three months' time to approach the competent Civil Court.

8. For a period of three months, status quo, as of today, shall be maintained qua the property in question.

9. The writ petition is, accordingly, disposed of.

(MANOJ KUMAR TIWARI, J.) Arpan