WPPIL/11/2016
2022 Latest Caselaw 1452 UK

       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL

       THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA
                                 AND
                JUSTICE SHRI RAMESH CHANDRA KHULBE


              WRIT PETITION (PIL) NO. 11 OF 2016

                               11th MAY, 2022

 Between:

 Anil Kumar                                       ......           Petitioner

 And

 State of Uttarakhand & others                    ......        Respondents


Counsel for the petitioner            :   Mr. Bhuwan Bhatt, learned counsel

Counsel for the respondent State      :   Mr.    Pradeep    Joshi,  learned
                                          Additional Chief Standing Counsel
                                          for the State

Counsel for respondent No. 3          :   Mr. Navnish Negi, learned counsel

Counsel for respondent No. 6          :   Mr. Neeraj Garg and Mr. Pankaj
                                          Kumar, learned counsel


 Upon hearing the learned Counsel, the Court made
 the following

 JUDGMENT:       (per the Acting Chief Justice Shri Sanjaya Kumar Mishra)



              In this writ petition (PIL), the petitioner has

 prayed for the following reliefs : -


        i)    Issue a writ, order or direction in the nature of

              mandamus          commanding          to   the    respondent

              authorities        to       immediately       remove          the

              encroachment from the land of children park

              Bhowali.
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     ii)    Issue a writ, order or direction in the nature of

            mandamus        commanding             to     the   respondent

            authorities to restore the children park Bhowali

            in the monitoring of Hon'ble High Court.


     iii)   Issue     a   writ,       order   or        direction   to   the

            respondent No. 4 to take possession upon the

            children park land if the respondent No. 3

            violate terms and condition of lease deed.


     iv)    Issue a writ, order or direction in the nature of

            mandamus        commanding             to     the   respondent

            authorities to conduct inquiry and punish those

            officers who have not taken any action against

            the     encroachers        and    grant       permission     for

            construction of shop on the land of children park

            Bhowali.


     v)     Issue a writ, order or direction which this

            Hon'ble Court may deem fit and proper under

            the circumstances of the present case.


     vi)    Award the cost of the petition.


2)          During pendency of the case, the petitioner

died, and as per the order passed by this Court, the

Registry brought out a public notice that the petitioner

has died, and the present PIL has been filed with regard
                               3




to the alleged encroachment upon the land belonging to

the children park at Bhowali.


3)           We are informed by Mr. Navnish Negi, the

learned counsel appearing for the Nagar Palika Parishad,

Bhowali that the land is recorded as Forest, and a lease

has been granted by the State of Uttarakhand in favour

of the Nagar Palika Parishad, Bhowali for construction of

a children park.        They have already constructed a

children park, and at present, there is no encroachment

over it. So, we are of the opinion that there is no need

to pass a writ of mandamus.


4)           We have also heard Mr. Neeraj Garg, the

learned counsel appearing for respondent no. 6.            The

respondent No. 6 claims the land to be his bhumidhari

land, and for that purpose a civil suit has already been

instituted    before   the   competent   civil   court   having

territorial jurisdiction.    So the question, whether the

respondent No. 6 has a right over it, or not, is not the

subject matter of this Writ Petition (PIL), and this Court

has stayed its hands from deciding that issue as the civil

court is in seisin of the matter.


5)           We are also informed that the trial court has

already rejected the application for temporary injunction,
                              4




and the appeal under Order 43 of the Code of Civil

Procedure is pending before the learned District Judge,

Nainital.


6)          We hereby dispose of the present Writ Petition

(PIL) holding that there is no need to issue any

mandamus      against   anybody,     and   with   the   further

direction that the order passed by us shall not cause any

prejudice on the rights and liabilities of the parties

litigating before the civil court.


7)          With such observation, the Writ Petition (PIL)

stands disposed of. There shall be no order as to costs.


8)          However, the respondent No. 6 shall be at

liberty to file an appropriate application before the

learned Appellate Court before whom the Miscellaneous

Appeal is pending for expeditious disposal of the appeal,

which shall be considered favourably.


                          ___________________________
                          SANJAYA KUMAR MISHRA, A.C.J.


                             ______________________
                            RAMESH CHANDRA KHULBE, J.

Dated: 11th MAY, 2022 Negi