IMPORTANT POINT
The court established that encroachment on government land, as determined by official measurements and inspections, invalidates claims of ownership.

JUDGMENT :

(Rakesh Thapliyal, J.)

1. By the instant petition, the petitioners are praying for the following reliefs:-

“i) Issue a writ, order or direction in the nature of certiorari quashing the notice dated 17-01-2024 issued by the respondent no. 4 and 6 and the notice dated 22-02-2024 issued by the respondent no. 4 (contained in Annexure no. 1 to this writ petition).

ii) Issue a writ, order or direction in the nature of certiorari mandamus directing the respondents not to take forceful possession of the land under the ownership of the petitioners and not to demolish the boundary wall and gate of the petitioners in pursuant to the notice dated 17-01-2024 and 22-02-2024.

iii) Pass any other or further order(s)/ writ(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

iv) Award the cost of the petition to the petitioner.”

2. The main contention of the petitioners is that the predecessor of the petitioners, namely, late Harish Chandra Gururani was having certain agricultural land in khasra No. 29, who was continuously cultivating the aforesaid land and also constructed a house. In the year 2006, the Public Works Department, Construction Division, Haldwani issued a notice to Harish Chandra Gururani, regarding encroachment towards the Haldwani-Kaladhungi Road, which was replied by the predecessor vide letter dated 20.02.2006, Annexure-3 to the petition. Thereafter, Public Works Department withdrew the notice by observing that in future if the land is required for widening of road then adjoining land would be taken with the consent of the owner. Subsequently, the predecessor of the petitioners died on 17.06.2011 and after his death, names of the petitioners have been recorded in the revenue records.

3. It is submitted that part of the land, located in khasra No. 29, came in the share of Himanshu Gururani, who happens to be the cousin of petitioner Nos. 2 and 3 and nephew of petitioner No. 1. When he decided to raise a construction over khasra No. 26 and 29, he applied for conversion of the land from agricultural to non-agricultural as per Section 143 of UPZA & LR Act before the Assistant Collector, 1st Class, Haldwani, District Nainital. On 10.03.2015, the Assistant Collector, Haldwani declared .009 hectare land of khasra No. 29 and .018 hectare of khasra no. 26, total measuring 0.027 hectares, to be a non-agricultural land.

4. It is submitted that the Haldwani-Kaladhuni Road is being widened on both sides, and for that purpose, the Public Works Department wanted more land; however, without ascertaining that the present petitioners are the owners of the land falling in Khasra No. 29, a notice was issued on 08.01.2024, whereby a direction was issued to remove the encroachment. Pursuant to the said notice, the petitioner No. 3 approached to the Assistant Engineer, PWD, Construction Division, Haldwani that the notice is bad on two grounds; firstly, the said notice is sent in the name of a dead person and secondly, the land which is alleged to have been encroached is a bhumidhari land.

5. It is also contended that thereafter, another notice was issued on 17.01.2024, and the said notice was replied. It is submitted that again a further notice was issued by the respondent/department on 22.02.2024, containing the same allegations as was in the previous notices. Thereafter, the petitioner approached to Amin, called the area to be measured with the help of old records and map and said report reveals that the petitioners are in possession over their own land and the allegations of the encroachment are all baseless.

6. It is also contended that a detailed response was also given by the petitioners on 11.03.2024 and thereafter the official respondents came and tried to remove the gate and boundary wall of the petitioners by saying that the same is on the Government land. With all these averments, the present writ petition has been filed.

7. On 15.03.2024, learned counsel for the petitioners had