Uttarakhand High Court
WPMS/1480/2021 on 3 August, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
WRIT PETITION (M/S) No. 1480 of 2021
03RD AUGUST, 2021
Between:
Mohammad Yaseen.
...Petitioner
and
The State of Uttarakhand and others.
...Respondents
Counsel for the petitioner. : Mr. Jitendra Chaudhary, the learned
counsel.
Counsel for the respondent nos. : Mr. J.C. Pande, the learned Standing
1 to 3. Counsel for the State of Uttarakhand.
Counsel for the respondent nos. : Mr. A.M. Saklani, the learned counsel.
4 and 5.
The Court made the following :
JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The petitioner has challenged the validity of the
notice dated 19.07.2021 passed by the Municipality, Jaspur,
District Udham Singh Nagar, the respondent no. 4, whereby
the Municipality has directed the petitioner to remove the
encroachment within a period of one week, failing which,
while invoking its powers under Section 211 of the
Municipalities Act, 1916, the Municipality would demolish
the encroachment.
2. Briefly, the facts of the case are that according to
the petitioner, the respondent no. 4 had constructed certain
shops on a Nala (culvert), which were auctioned by the
respondent no. 4 in the year 1996. On 11.03.1996, one
Mr. Liyakat Husssain was allotted the shop on a premium of
Rs. 64,000/-, along with a monthly rent of Rs. 250/-. Mr.
Liyakat Hussain did his business in the subject shop till the
year 2013. Thereafter, Mr. Liyakat Hussain moved an
application, along with the Transfer Deed dated
14.02.2013, before the Nagar Palika Parishad, Jaspur for
transferring the said shop in favour of the petitioner. The
said application was allowed with a condition that the new
transferee shall pay Rs. 25,000/- towards compounding
fees, and would also pay rent at 25% higher rate. The
petitioner accepted the said condition. Consequently, in the
year 2013 the petitioner took the possession of the subject
shop from Mr. Liyakat Hussain, and is continuously paying
the rent.
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3. However, in Writ Petition (PIL) No. 85 of 2021, by
order dated 30.06.2021, this Court had directed the Sub-
Divisional Magistrate, Jaspur, District Udham Singh Nagar,
and the Chairman of the Nagar Palika Parishad, Jaspur,
District Udham Singh Nagar, the respondent nos. 3 and 4
therein, to inspect the subject property i.e. the Nala; in
case they were to find any encroachment, which has been
made on the Nala, then action was to be taken against the
encroachers, but strictly in accordance with law.
4. Consequently, on 19.07.2021, the impugned
notice was issued to the petitioner, wherein it is claimed
that the Sub-Divisional Magistrate, Jaspur, the Naib
Tehsildar, and the Chairman of the Municipality had
inspected the Nala. They had discovered that the petitioner
had encroached upon the Nala. Thus, the petitioner, as
mentioned above, was granted one week's time to remove
the encroachment, failing which the shop would be
demolished.
5. Mr. Jitendra Chaudhary, the learned counsel for
the petitioner, submits that since the shop was constructed
by the Municipality itself, since the shop was auctioned by
the Municipality itself, since the Municipality had itself
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transferred the shop in favour of the petitioner, and since
the petitioner continues to pay the monthly rental amount
to the Municipality even as on date, by no stretch of
imagination, can the petitioner be declared to be "an
encroacher".
6. The learned counsel further submits that, in fact,
the petitioner has been following all the conditions
stipulated by the Municipality, the respondent no. 4, for
running the shop. Therefore, the Municipality is unjustified
in taking any action against the petitioner as a knee jerk
reaction to the order dated 30.06.2021, passed by this
Court in Writ Petition (PIL) No. 85 of 2021.
7. Moreover, Mr. A.M. Saklani, the learned counsel
for the Municipality, the respondent no. 4, admits that,
indeed, the shop was constructed by the Municipality, and
was transferred to the petitioner in the year 2013.
However, according to the learned counsel, the allotment
was subsequently cancelled by the respondent no. 4.
Therefore, the petitioner happens to be a trespasser.
Subsequently, the Municipality had issued notices for
evicting the petitioner and others like him. Since the
petitioner and others were aggrieved by the said notices,
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they challenged the same before a learned Single Judge in
Writ Petition (M/S) No. 991 of 2011, Writ Petition (M/S) No.
992 of 2011 and Writ Petition (M/S) No. 993 of 2011. By
separate orders, all dated 25.05.2011, the learned Single
Judge disposed of all the three writ petitions, and directed
the Municipality to give personal hearing to the petitioners,
and only thereafter to take any action against them. The
learned counsel for the Municipality, the respondent no. 4,
further submits that despite the directions given by the
learned Single Judge, neither any notice was issued to the
petitioner and others, nor any opportunity of hearing was
given to them. But nonetheless, as subsequently the
allotment of shop was cancelled, the petitioner continues to
be a trespasser on the property. Thus, according to the
learned counsel, the impugned notice is legally sustainable.
8. Heard the learned counsel for the parties.
9. Admittedly, the shop was constructed by the
Municipality, the respondent no. 4. Admittedly, the shop
was transferred in favour of the petitioner as far back as
2013. Even if the contention of the learned counsel for the
respondent no. 4 were to be accepted, for the sake of
argument, that the allotment was subsequently cancelled,
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even then the petitioner is merely a trespasser. But, he
cannot be declared to be a person, who has encroached
upon any property. Surprisingly, despite the fact that the
Municipality has not taken any action against the petitioner
under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, the Municipality threatens to
demolish its own shop. Therefore, the impugned notice
dated 19.07.2021 is clearly unsustainable.
10. Further, in the notice dated 19.07.2021, no
opportunity of hearing has been provided to the petitioner.
Needless to say no adverse action can be taken against the
petitioner until and unless an opportunity of personal
hearing is provided to the petitioner. Therefore, the
impugned notice dated 19.07.2021 is also in violation of the
principles of natural justice.
11. For the reasons stated above, the impugned
notice dated 19.07.2021 is set-aside by this Court.
12. However, the Municipality, the respondent no. 4,
shall be free to take action against the petitioner, but only
in accordance with law. Thus, the respondent no. 4 is
required to state the provision of law, under which the
notice is being issued to the petitioner, and is required to
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give sufficient time to reply to the notice. The Municipality
shall also give an opportunity of personal hearing to the
petitioner before taking any adverse action against him.
13. Needless to say, in case the petitioner continues
to be aggrieved by any order passed by the respondent no.
4, the petitioner shall be free to challenge the same in
accordance with law by invoking the legal remedies
available to the petitioner.
14. With these directions, the Writ Petition stands
disposed of.
_____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
___________________
ALOK KUMAR VERMA, J.
Dt: 03rd AUGUST, 2021
Rahul
