Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents and Shri Deepak Kumar Dwivedi for the opposite party no.6. None has appeared on behalf of opposite parties no.7 to 9.
The instant petition has been preferred seeking a direction in the nature of mandamus commanding the opposite parties to remove and demolish illegal encroachment and illegal constructions said to have been raised by private respondents no.6 to 9 over Gata No.3767 which is said to be of a pond land. The Co-ordinate Bench of this Court by means of order dated 05.8.2019 has passed the following order which reads as under :-
"Heard learned counsel for the petitioner, learned Standing counsel for the respondent Nos.1 to 4 and to Sri Azad Khan, learned counsel for the respondent No.5.
Grievance of the petitioner is that he was granted lease of a pond of village Thakurpur, Post Gajipur, Tehsil Sirauli Gauspur, District Barabanki w.e.f. 15.2.2018 to 14.2.2028 for the period of 10 years.
Learned counsel for the petitioner submits that the opposite party Nos.6 to 9 are interfering in the possession of the petitioner and are trying to make illegal encroachment on the pond. He further submits that feeling aggrieved, the petitioner approached to the respondent No.2 vide application dated 2.6.2018, 4.7.2019 and 27.3.2019, whereupon direction was issued to the S.H.O. to make enquiry and in case it is found that there is illegal encroachment on the pond, the same be removed, in spite of that, no action whatsoever has been taken till date.
After having heard the learned counsel for the parties, I perused the material on record.
The Hon'ble Supreme Court in the case of Hinch Lal Vs. Kamla Devi; 2001 (6) SCC 496 has directed to all District Magistrates of India to ensure that land of the pond should be removed from the encroachers and be maintained by the Gaon Sabha in the interest of public.
The petitioner has approached to the District Magistrate, whereupon the S.H.O. was directed to remove the illegal encroachment by the opposite party Nos.6 to 9, in spite of that, grievance of the petitioner that that they are still holding possession over the land of the pond. His grievance is that in spite of repeated approaches, the local authorities are not taking care of the grievance of the petitioner, due to which, he is suffering great irreparable loss and injury and he is not able to maintain the pond for the fisheries rights.
In view of the controversy involved in the present writ petition, in the interest of justice, this writ petition is kept pending, directing the District Magistrate, Barabanki (respondent No.2) to pass an appropriate order on the application moved by the petitioner in the light of the judgment passed in the case of Hinch Lal (Supra) within a period of 6 weeks from the date of production of certified copy of this order and to file an affidavit before this Court in regard to the action taken for removal of illegal encroachment from the pond in dispute.
It is however made clear that while passing the order, the District Magistrate shall provide opportunity of hearing to the petitioner as well as to the respondent Nos.6 to 9, if any, encroached the land of the pond alleged in the representation.
The said affidavit be filed within a period of 2 weeks thereafter before this Court in the present writ petition.
List this petition after 8 weeks on 9.9.2019."
Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel shall intimate this order to the District Magistrate, Barabanki.
Office is directed to issue a copy of the order free of cost to Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel."
The State has filed the counter affidavit wherein in para 6 it has been averred that the opposite parties no.7 to 9 have given consent to remove the encroachment whereas the opposite party no.6 is disputing the claim and in paragraph no.9 of the counter affidavit it is stated that proceedings under Section 67 of the U.P. Revenue Code, 2006 has been initiated against opposite party no.6 which is pending.
Shri Santosh Kumar Dwivedi, learned counsel appearing for opposite party no.6 on being confronted as to what is the status of the proceedings, could not give any explanation and it appears that he has no idea in respect of the proceedings. Be that as it may. Since the prayer made in the petition is for removal of the encroachment and in view of the statement made by the State in the counter affidavit that encroachment made by the opposite parties no. 7 to 9 has been removed and that the proceedings against opposite party no.6 are pending, accordingly, this Court is of the opinion that no further purpose would be served in keeping the aforesaid petition. Accordingly, this petition is disposed of with the direction that the state shall conclude the proceedings under Section 67 of the U.P. Revenue Code preferred against the opposite party no.6 most expeditiously after providing opportunity of hearing to the parties, preferably within three months an authenticated copy of this order is placed before the authority concerned. Learned Additional Chief Standing Counsel shall place a copy of this order before the competent authority for compliance.
In view of the aforesaid no further order is required to be passed and the petition stands disposed of.
Order Date :- 6.1.2021 mks