SC Modifies U’khand HC Order On Removing Encroachments, Directs Notice To Be Served To All Encroachers, Status Quo Till Then [Read Order]

The Supreme Court has modified part of an order passed by the Uttarakhand High Court on the removal of encroachments directing that the same shall be done only after the authorities issue an appropriate notice to unauthorised encroachers while maintaining status quo till a decision is taken by the civic agencies on the reply of the encroachers.

A bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud modified the Uttarakhand High Court’s order of June 18 on the plea of woman named Suneeta who said the order was to demolish the structures without following due process of law and even an unauthorised occupant cannot be evicted otherwise than by following due process of law.

The petitioner, through her counsel Manohar Pratap, Sanpreet Singh Ajmani and Peeyush Bhatia, told the court that “the High Court was not justified in straight away directing the authorities to remove the alleged encroachments without allowing the authorities to first conduct demarcation proceedings over the said land”.

She said the high court failed to appreciate that the authorities, in the garb of its order, has passed an order of eviction without affording any fair opportunity of hearing and without permitting such occupants to lead evidence in support of their claim.

It is to be noted that the Uttarakhand High Court had on June 18 ordered the civic body to remove all encroachment in four weeks by “using its might”.

It had issued a series of directions, one  of which was that “[t]he Municipal Corporation/MDDA/State functionaries are directed to remove all the unauthorized encroachment on public footpaths/ streets/ roads/ pavements including unauthorized constructions made over them within a period of four weeks from today by using its might. It shall be open for the State functionaries to impose Section 144 12 of Cr.P.C. while removing the demolition of illegal structures built on government and municipal land/footpaths/streets”.

After hearing the petitioner, the Supreme Court ordered, “...we find that the high court has ordered removal of unauthorised encroachments. Thereafter, it has proceeded to issue series of directions. We are really not concerned with the general directions given by the high court.

“However, we are inclined to modify the order passed by the high court to the extent that the competent authority of Nagar Nigam, Dehradun, shall issue appropriate notices to the unauthorised encroachers and follow due procedure and thereafter, evict them if they are found to have encroached. The show cause notices shall be issued within three weeks from today and reply to the same shall be filed within three weeks therefrom and decision shall be taken thereon within four weeks”.

“Till the decision is taken by the competent authority, status quo, obtaining as on today, shall remain in force,” it added.

The apex court, however, clarified that its order is not with regard to any encroachment that might have come up after the high court’s order.

“Our directions shall apply in respect of all the encroachers as there has to be removal of encroachments after following the principle of natural justice unless it is on a public road. Our direction shall only apply to the encroachments which had been existing earlier. If there is any kind of encroachment after the order of the High Court, the same shall be removed after giving 24 hours notice,” said the apex court.