WPMS/555/2021
2021 Latest Caselaw 766 UK

IN THE HIGH COURT OF UTTARAKHAND
           AT NAINITAL
        ON THE 9TH DAY OF MARCH, 2021
                         BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
       Writ Petition (M/S) No. 555 of 2021
BETWEEN:

Mahmood & another                        ...Petitioner
     (By Mr. T.A. Khan, Senior Advocate assisted by Mr. Vinay
     Bhatt)

AND:

State of Uttarakhand & others            ... Respondents
     (By Mr. T.S. Phartiyal, Additional C.S.C. for the State)

                       JUDGMENT

Petitioners are aggrieved by an order passed by Sub-Divisional Magistrate, Bajpur, District Udham Singh Nagar on 11.02.2021, whereby petitioners have been asked to remove their encroachment over water-body within thirty days, failing which their encroachment shall be removed at the cost and expense of the petitioners.

2. The said order has been passed pursuant to the direction issued by Division Bench of this Court in WPPIL No. 59 of 2016. It is an admitted position that petitioners are in possession over Category-IV Land, which belongs to the State Government.

3. According to the petitioners, they have applied for regularisation of such land in their favour by depositing the amount of premium in terms of Government Policy. It is further the case of the

petitioners that they are not in possession over any land belonging to water-body.

4. Mr. T.A. Khan, Senior Advocate appearing for the petitioners submits that both the petitioners are jointly in possession over 0.095 hectares land regarding which they have already made application for regularisation, which is pending before the concerned authority.

5. Per contra, Mr. T.S. Phartiyal, learned Additional C.S.C. for the State submits that encroachment made by the petitioners over Government land is in excess by 475 Sq. Meter of the land for which petitioners have sought regularisation and the total land occupied by the petitioners is 1425 Sq. Meter., therefore, according to him, concerned Sub-Divisional Magistrate has rightly passed the order, which is impugned in the present writ petition. He further submits that petitioners have also encroached upon the land, belonging to the pond, which is recorded as Category-15(1) of Submerged Land (Pond).

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.

(MANOJ KUMAR TIWARI, J.) Aswal