NAFEES Vs. STATE OF UTTARAKHAND & OTHERS

JUDGEMENT

(1.) The appellant is the writ petitioner in Writ Petition No.1520 of 2017. The petitioner in the Writ Petition has challenged the notice of demolition dated 01.06.2017 said to have been issued by the respondent whereby the respondents have observed in the notice that the appellant has raised an unauthorized construction by encroaching the public property lying by the side of the road it is required to be removed. The direction which has been issued is in pursuance to the notice dated 08.06.2017, said to have been issued in furtherance of the order passed by the Division Bench in a PIL No.128 of 2016, based on which the respondents had taken a demolition drive at public places where there exists unauthorized construction in Township of Jaspur, District Udham Singh Nagar. The Division Bench of this Court after taking into consideration the averments of the petitioner's counsel and all parties to writ petition pertaining to the width of road and its gradual reduction with the passage of time due to the encroachment being made on either side, consequently leaving a very narrow strip open for the people at large to commute, the Division Bench after taking note of the pleading of counter affidavit filed by the Executive Engineer, PWD Kashipur, Udham Singh Nagar wherein he has fortified the fact that the width of the road is 40 feet to 80 feet and the same has now been narrowed down by the encroachment. The Division Bench disposed of the PIL with the following direction

(2.) The learned Single Judge vide impugned order dated 27.06.2017 under challenge in the instant appeal had dismissed the Writ Petition holding thereof, that since the notice dated 08.06.2017, happens to be in compliance of the judgment rendered by the Division Bench in the PIL, the Single Judge has taken a view that the Single Judge cannot interfere in the matter as order is in compliance of Division Bench order, however it left it open for the petitioner to seek an appropriate remedy from the Division Bench. Being aggrieved against the said order, the petitioner / appellant has filed the instant special appeal.

(3.) On scrutiny of the notice dated 08.06.2017 impugned in the writ petition, pertaining to the removal of the encroachment, it was observed that the petitioner has encroached upon public land by raising pakka construction, boundary wall and tin shed, which happens to be within the prohibited area as public land and on the distances taken from the centre of the road. He was directed to remove the same on his own. Thereby the petitioner was given time to remove the construction by 22.06.2014.