WPMS/2443/2021
2021 Latest Caselaw 4811 UK

IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
     ON THE 30TH DAY OF NOVEMBER, 2021
                            BEFORE:
     HON'BLE SHRI JUSTICE MANOJ K. TIWARI

     Writ Petition (M/S) No. 2443 of 2021
BETWEEN:

Smt. Bharoshi Negi                            ... Petitioner

      (By Mr. Bhupesh Kandpal, Advocate)


AND:

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

                         JUDGMENT

1. According to the petitioner, she purchased 0.3765 hectares land comprised in Khasra No. 164mi, 165mi and 255(ka)mi situate in Village Shyampur Parwadoon, Tehsil Rishikesh, District Dehradun.

2. Petitioner is aggrieved by an order passed by Tehsildar Rishikesh on 16.11.2021, whereby she has been informed that on 22.11.2021, the encroachment made by her over adjoining public land would be removed. In the said order, it has been stated that petitioner has encroached upon the land belonging to irrigation canal and public drain, which belongs to Gram Sabha.

3. It is the contention of the petitioner in this writ petition that she has not encroached over any public land, therefore, according to her, she cannot be

asked to remove her encroachment. Learned counsel for the petitioner submits that petitioner was not given any hearing before passing impugned order.

4. Whether petitioner has encroached over any public land or not is basically a question of fact and it is settled position in law that such disputed question of fact cannot be gone into in writ petition filed under Article 226 of the Constitution.

5. This Court thinks that ends of justice would be met, if petitioner is permitted to make objection to the concerned Tehsildar, who may take decision in the matter within some stipulated time frame.

6. Accordingly, the writ petition is disposed of with liberty to the petitioner to file objection to the impugned order dated 16.11.2021 passed by Tehsildar, Rishikesh, within two weeks. It shall be open for the petitioner to raise all contention in her objection. If such an objection is made within stipulated time, Tehsildar, Rishikesh shall look into the matter and take appropriate decision, in accordance with law, within eight weeks thereafter.

7. For a period of ten weeks or till decision is taken on petitioner's objection, whichever is earlier, status quo as on today shall be maintained.

(Manoj Kumar Tiwari, J.) Aswal