Ganesh Ram @ Ganesh Lal vs State Of Uttarakhand And Others
2023 Latest Caselaw 2878 UK

     IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

         THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                 AND
              THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL


             WRIT PETITION (M/B) NO. 276 OF 2023


                       27TH SEPTEMBER, 2023


Ganesh Ram @ Ganesh Lal                  ......          Petitioner


Versus


State of Uttarakhand and others          ......         Respondents



Counsel for the petitioners   :   Ms. Prabha     Naithani,   learned
                                  counsel
Counsel for the respondents   :   Mr. Amarendra Pratap Singh,
                                  learned     Additional    Advocate
                                  General for the State / respondent
                                  Nos. 1 to 5



The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)


             Issue notice.


2)           Counsel appears and accepts notice on behalf of

the respondents.


3)           The petitioner has preferred this Writ Petition to

assail the notice dated 04.09.2023 issued by the respondent-

Assistant Engineer, Provincial Division, PWD, Pithoragarh,

alleging encroachment by the petitioner on "Police Line
                                       2




Approach motor road at KM 01 by having a permanent

construction on the 66 feet wide motor road acquired by the

department."


4)             The     respondents            have      claimed       that     this

construction falls in the category of an encroachment. The

petitioner was granted one week's time to remove the

alleged encroachment, failing which the same would be

removed       by     the   department          in    the    presence      of   the

administration and police force.


5)             The petitioner states that the petitioner received

the said notice on 22.09.2023, and responded to the same

on 09.09.2023. The case of the petitioner is that the

petitioner has raised construction after obtaining sanction of

building plans from the competent authority, on his own

land,   and     the     petitioner    has       not     encroached        on   any

government land. The further submission of the petitioners

is that, though it is claimed by the respondents in the notice

that    said        construction      falls     into       the     category     of

encroachment, it is not claimed by the respondents that

land, to the aforesaid extent, has been acquired by the State

for the purpose of either construction of the road, or for its

broadening.


6)             In    our   view,     the      notice,      as    issued   by   the

respondents, appears to be deficient, inasmuch as, it does
                               3




not mention the specific Khasra Numbers, which, the noticee

is claimed to have encroached upon.


7)         We, therefore, direct the State to ensure that

whenever notices, alleging encroachment, are issued, specific

Khasra Numbers, over which encroachment is alleged, should

also be clearly set out so that the noticee is able to

effectively deal with the notice, and there is clarity about the

land in relation to which the notice is issued.


8)         The order passed by this Court, in Writ Petition

(PIL) No. 117/2023, which was registered suo motu on the

basis of the letter received from one Mr. Prabhat Gandhi

dated 19.07.2023, relates to encroachment, which has taken

place by people on the roadside, within the State. The

notices, which are issued by the respondents alleging

encroachment, should, therefore, clearly disclose, whether

they relate to encroachment over public land, or whether

they relate to the alleged raising of illegal construction,

without obtaining prior sanction, or in violation of the

sanction of building plans. The respondents should adhere to

our directions in the notices that they issue henceforth.


9)         So far as the notice issued to the petitioner is

concerned, the petitioner has already responded to the

same. We direct the respondents to grant an opportunity of

hearing to the petitioner in the present case, and to the
                                  4




noticees in other cases, where notices have been issued, and

the competent authority should, thereafter, pass a reasoned

and speaking order, clearly stating whether, or not, there is

encroachment on public land, and also whether, or not, the

construction raised, along the roadside, is after obtaining due

sanction.


10)         We dispose of this Writ Petition with a direction to

the respondents to adhere to our aforesaid directions in the

case of the petitioner as well. The respondents should grant

personal    hearing   to   the   petitioner;    thereafter   pass   a

reasoned and speaking order, and; only thereafter the

respondents may proceed in terms of the speaking order.


11)         Consequently, pending application(s), if any, also

stand disposed of accordingly.



                                           __________________
                                               VIPIN SANGHI, C.J.


                                        ________________
                                        RAKESH THAPLIYAL, J.

Dt: 27th SEPTEMBER, 2023 Negi