Uttarakhand High Court
WPMS/1434/2021 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. 1434 of 2021
03RD AUGUST, 2021
Between:
Mumtaj Hussain.
...Petitioner
and
State of Uttarakhand and others.
...Respondents
Counsel for the petitioner. : Mr. Aditya Singh, the learned counsel.
Counsel for the respondents : Mr. K.N. Joshi, the learned Deputy
nos. 1, 3 and 4. Advocate General for the State of
Uttarakhand.
Counsel for the respondent no. : Mr. A.M. Saklani, the learned counsel.
2.
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. 2, 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. 2 had constructed certain
shops on a Nala (culvert), which were auctioned by the
respondent no. 2. The petitioner was declared as the
highest bidder. Subsequently, the Municipality, the
respondent no. 2, and the petitioner entered into an
agreement. According to the said agreement, the petitioner
was required to pay a monthly rent for the shop to
respondent no. 2, which he continues to do even today.
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.
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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. Aditya Singh, 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 entered into
an agreement with 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 stated in
the agreement entered into between the petitioner and the
Municipality. Therefore, the Municipality is unjustified in
taking any action against the petitioner as a knee jerk
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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. 2, admits that,
indeed, the shop was constructed by the Municipality, and
was auctioned by it to the petitioner. However, according
to the learned counsel, the agreement was subsequently
cancelled by the respondent no. 2. 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, 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. 2, 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
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nonetheless, as the agreement between the Municipality
and the petitioner was cancelled in the year 2009, 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. 2. Admittedly, the shop
was assigned to the petitioner. Even if the contention of
the learned counsel for the respondent no. 2 were to be
accepted, for the sake of argument, that the agreement
was subsequently cancelled, 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.
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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. 2,
shall be free to take action against the petitioner, but only
in accordance with law. Thus, the respondent no. 2 is
required to state the provision of law, under which the
notice is being issued to the petitioner, and is required to
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.
2, the petitioner shall be free to challenge the same in
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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
