The court emphasized the necessity for factual determination before issuing a writ of mandamus for demarcation or measurement, and declined to interfere in the absence of such determination.

JUDGMENT :

Sharad Kumar Sharma, J.

The petitioner alleging himself to be a recorded tenure holder of the land lying in Plot Nos. 177, 203 and 206 in Village Kamluaganza Narsinghtaalla, Tehsil Haldwani, District Nainital, had approached this Writ Court for the following reliefs :

“i. Issue a writ, order or direction in the nature of mandamus commanding the respondents to measure and demarcate the land of the road constructed over plot No. 177, 203 and 206 in village Kamluaganza Narsinghtalla, Tehsil Haldwani, District Nainital, and to acquire the same in accordance with the directions issued by this Hon’ble Court in judgment dated 10.12.2019, passed in WPMS No. 37 of 2019, Kirti Sharan Agarwal Vs. State of Uttarakhand and others;

ii. issue a writ, order or direction in the nature of mandamus commanding the respondents to deliver the vacant possession of the remaining area, if any after acquisition of Plot No. 177 in village Kamluaganza Narsinghtalla, Tehsil Haldwani, District Nainital, after removing encroachments thereon.

iii. award costs of this petition to the petitioner against the respondent;

AND

iv. pass such other and further writ, order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case.”

2. In case, if the relief itself is taken into consideration, the writ of mandamus, for the purpose of demarcation to enable and facilitate the acquisition has been carved out by the petitioner to be enforced in a writ jurisdiction under Article 226 of the Constitution of India, under a purported compliance of a judgment of 10th December, 2019, which was rendered by the Division Bench of this Court in Writ Petition No. 3687 of 2019, Kirti Sharan Agarwal Vs. State of Uttarakhand and others.

3. Simultaneously, the petitioner has also sought a writ of mandamus, for directing the respondents to hand over the vacant possession of the remaining area of the land, the possession of which, has been alleged to have been taken by the respondents after taking over of plot No. 177, of the aforesaid village and to remove their encroachment.

4. Factually, the petitioner in support of his contention has made reference to the revenues entries which were made in the khatuni, pertaining to fasli year 1393 to 1398. He contends and claims that he stands recorded in the revenue records as against the land, which was said to have been taken over and is recorded as a Shreni-1Ka bhumidhar, which is one of the class of tenure holder under Section 129 of the U.P. Z.A. & L.R. Act.

5. Meaning thereby, the nature of the land, as it stood recorded in the revenue records on the date of filing of the Writ Petition was well within the category of revenue land covered under Section 129 of the U.P. Z.A. & L.R. Act.

6. For an alleged act of an illegal encroachment, which was contended by the petitioner to have been undertaken by the respondents in contravention to the provisions of Article 14; to be read with Article 300-A of the Constitution of India, the petitioner had earlier already approached before the Division Bench of this Court in Writ Petition (M/S) No. 3687 of 2019, Kirti Saran Agarwal Vs. State of Uttarakhand and others, wherein, the petitioner has sought a writ of mandamus commanding the respondents “not to construct the road on plot No. 177”, meaning thereby, according to the relief modulated therein, in fact, by the time, when the petitioner approached earlier before the Writ Court, the act of construction of the road over the petitioner’s alleged plot No. 177, was an act, which was yet to be performed. However, the Writ Court by the judgment of 10th December, 2019, had passed the following directions:-

“9. The respondents herein shall identify and earmark the extent, which the petitioner claims to be the owner of i.e. plot no. 177, in his presence; and, thereafter, lay a road thereupon so that, in case it is found later that the petitioner is the owner of the said land, acquisition proceedings can then be initiated by the State