Uttarakhand High Court
Bansidhar Gayal vs State Of Uttarakhand And Others on 11 May, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
WRIT PETITION NO.1922 OF 2018(M/S)
Bansidhar Gayal ...... Petitioner.
Vs.
State of Uttarakhand and Others ......Respondents.
Present:
Counsel for the petitioner : Mr. D.S. Mehta, learned counsel.
Counsel for the State : Mr. S.S. Chaudhary, learned Brief
Holder.
Counsel for respondent no.5 : Mr. Navnish Negi, learned counsel
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT: (per the Acting Chief Justice Shri Sanjaya Kumar Mishra)
By filing this Writ-Petition, the petitioner has
prayed for issuance of writ of certiorari quashing the notice/
order dated 27.06.2018 (annexure-1) to the writ-petition
issued by respondent no.4; and, to issue a writ of mandamus
directing that adequate action be taken on the representation
dated 06.07.2018 filed by the petitioner and all consequential
relief.
2. The facts of the case are that a PIL was filed
before this Court bearing WPPIL No.11 of 2016, in which
several directions were passed on 12.06.2018, especially with
respect to the present petitioner. The order no.III and IV are
relevant, which are being quoted below:-
"(iii) The respondent nos.2 to 4 are also directed
that all the drains passing through the town of Bhowali
are made encroachment free called as "Gadhera".
(iv) The encroachments made on the path
leading to public institution i.e. UJALA, Air Force station
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shall be removed on parity basis within a week from
today."
3. In pursuance of the directions passed by this
Court, the Revenue Authorities held a joint inspection of the
town of Bhawali on 26.02.2018 and as per the submission of
Mr. Navnish Negi, learned counsel appearing for respondent
no.5/ Bhawali Nagarpalika, the petitioner was found to have
encroached "Gadhera" which is recorded as Jalasaya.
Therefore, on 27.06.2018 a notice was issued to the
petitioner intimating him that, as per the orders passed by
this Court in WPPIL No.11 of 2016 on 12.06.2018, he was
directed to remove the encroachment within three days
otherwise the encroachment will be demolished by the
authorities at the cost of the petitioner.
4. Learned counsel for the Nagarpalika/ respondent
no.5 submits that they were directed by this Court to remove
all encroachment within seven days. Hence, they had no
other option but to proceed with the removal of the
encroachment within three days and, therefore, there was no
opportunity for them to issue a notice of show cause. The
notice impugned in this case also suffers from the defect that
though it aims at removal of the encroachment made by the
petitioner it was, in fact, addressed to one Basant Ballabh and
not to the petitioner. Secondly, the notice itself did not give
any opportunity to the petitioner to file show cause. In fact,
final order passed by the authority was communicated to him.
A copy of the joint-inspection report or the extract thereof
relating to the petitioner was not communicated to the
petitioner. So, he had no opportunity of filing and raising
objections to the same. In that view of the matter, we are of
the opinion that there is a violation of principle of natural
justice and, therefore, impugned notice has to be quashed.
5. The contention of Mr. Navnish Negi, learned
counsel appearing for Nagarpalika/ respondent no.5 is also
not acceptable, in view of the fact that this Court never
passed an order to do certain things without following the
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procedure established by the law. Any order passed by this
Court is also inherent itself a direction to the authorities that
procedure established by the law should be followed. In this
case the same has not been done. Hence, we set aside the
notice (annexure-1) remand the matter back to the revenue
authorities with the direction to issue notice to the petitioner
as well as to re-issue notice to Basant Ballabh, who is the
licensor with respect to the land in question on which on
license basis, the petitioner is running a tea stall.
6. The petitioner is directed to appear before the
revenue authorities / the District Magistrate filing his
objection if he is advised to do so. The revenue authority after
giving reasonable opportunity of hearing and after supplying
the extract of the joint verification to Basant Ballabh and the
petitioner shall reconsider the matter and decide the matter
afresh. The petitioner is directed to appear before the District
Magistrate and will produce a copy certified copy of this order
within a period of 15 days. The learned District Magistrate
shall consider the same following the procedure and the
orders passed by us and decide the matter within a period of
two months from the date of production of a certified copy of
this order.
7. In view of the above observations, the instant writ-
petition is disposed of, accordingly.
_______________________
SANJAYA KUMAR MISHRA, A.C.J.
______________
RAMESH CHANDRA KHULBE, J.
Dt.11TH MAY 2022
BS/SS
