Rizwan Ali vs State Of Uttarakhand And Others

Vipin Sanghi, CJ

MCC RECALL APPLICATION NO. 2 OF 2022

This is a Recall Application moved by Nagar Nigam, Kashipur to seek recalling of our order dated 05.07.2022 passed in the present Special Appeal.

By the said order, we had allowed the said Special Appeal, and quashed the impugned order passed by the learned Single Judge on 22.06.2022 in Writ Petition (M/S) No 1389 of 2022. We had directed the respondent No. 2-Nagar Nigam, Kashipur, i.e. the applicant to act in terms of the order passed by the S.D.M. dated 22.11.2021 within eight weeks from the date of our order. By the said order dated 22.11.2021, passed by the SDM, the Nagar Nigam, Kashipur was directed to vacate the land in favour of the appellant within eight weeks from the date of the order, on the ground that the Nagar Nigam had encroached on the land of the appellant to the extent of 20X29 feet.

The submission of Mr. Davesh Bishnoi, the learned counsel for the applicant-Nagar Nigam, Kashipur is that on the date when the order dated 05.07.2022 was passed, he was not well and he could not appear before the Court and could not bring before the Court the complete factual matrix. The learned counsel has pointed out that after passing of the order dated 03.03.2021 by the Assistant Municipal Commissioner, Kashipur, four officers had undertaken the exercise of demarcation, namely Revenue Inspector, Revenue Sub-Inspector, Tax Inspector of the Nagar Nigam and the Sub Inspector of the Nagar Nigam. However, the exercise conducted by them was not in accordance with the procedure, inasmuch as all the recorded owners were not put to notice of the said measurement exercise. In this regard, the applicant has placed on record Communication dated 10.12.2021, issued by the Assistant Municipal Commissioner, addressed to the Joint Magistrate / SDM, Kashipur, disclosing the names of the other co-owners recorded in respect of Khasra No. 587 Min.

4 We have heard the learned counsel for the parties. It is not in dispute that the demarcation exercise undertaken by the aforesaid four officers on 08.07.2021 was done behind the back of the other recorded owners. Therefore, their views were not elicited in the matter, and behind their back, it could not be ascertained, firstly, whether the Nagar Nigam had encroached on any land; secondly, whether encroachment, if any, had been undertaken on the area falling to the share of the appellant-Rizwan Ali or to the share of other co-owners.

Consequently, it appears that the report dated 08.07.2021, prepared by the aforesaid four officers, which formed the foundation of our order dated 05.07.2022, could not have been relied upon. Since the aforesaid aspects were not brought to the notice of the Court, we, accordingly, allow the Recall Application, thereby, recalling our order dated 05.07.2022.

We direct respondent Nos. 3 & 4 to undertake a fresh exercise of demarcation of the land in question after putting to notice all the recorded owners, so that they may remain present and their views may also be recorded at the time of conduct of the demarcation process. The exercise be completed within the next six weeks. Once the demarcation report is prepared, the Authorities shall proceed to implement the same forthwith.

The Special Appeal stands disposed of accordingly.