Hon'ble Manish Mathur,J.
(ORAL)
1. The following main prayer has been made in this petition:-
"i) issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to construct drain (Nali) over the petitioner's agricultural land bearing Gata No.661 & 662 in the interest of justice.
ii)
iii)
iv)"
2. Gist of the issue raised by the petitioner is contained in order dated 17.7.2019. The order reads as under:-
"1. The petition seeks issuance of a writ in the nature of mandamus directing respondents not to construct drain (Nali) over the land belonging to the petitioner comprised in Gata Nos.661 and 662 situated at Village Marhara (Manjhariya), Pargana - Surhurpur, Tehsil - Jalalpur, District Ambedkar Nagar.
2. On the directions of the Court Shri Raj Baksh Singh, learned counsel for the respondents/State, has taken specific written instructions from Sub-Divisional Magistrate, Jalalpur, District Ambedkar Nagar, which is taken on record. As per the directions indeed, the petitioner is owner of land comprised in Gata No.661. Under the circumstances, the State has no right to utilise the land. The report/written instructions makes it clear that even portion of land comprised in Gata No.661 has been utilised for construction of drain.
So far as land comprised in Gata No.662 is concerned, contention of learned counsel for the State, on the basis of written instructions, is that revenue record indicates that a drain was in existence in the said land.
3. Having referred to the revenue record, we are not satisfied with the instructions received by learned State counsel. Prima-facie it appears that a mischief is being played with the petitioner insomuch as document placed on record at Page - 29 indicates that there was a drain running from land comprised in Gata No.659 and 676 which fall to the north of land comprised in Gata No.662.
4. We further fail to understand that if admittedly there was no drain in Gata No.661, how could a drain be in existence in Gata No.662 because the two plots are adjoining East to West.
5. Be that as it may, we hereby direct Tehsildar, Jalalpur, District Ambedkar Nagar to ensure that demarcation of the land is conducted in reference to the revenue record and the documents placed on record with the writ petition.
The ownership of the land owned by the petitioner be determined and demarcated on the ground. The Tehsildar would clearly indicate which of the lands is owned by the Gram Sabha. Site plan be prepared and produced before this Court.
6. We hereby fix the date of demarcation as 23.07.2019 at 10:00 AM. The petitioner, the Gram Pradhan and all other concerned/related persons shall remain present at the spot for implementation of the order.
7. In case the land belonging to the petitioner has been encroached upon, the Tehsildar would be at liberty to get the land restored to the possession of the petitioner at the spot.
8. As projected before this Court, portion of drain has been constructed on the land belonging to the petitioner. That portion of land be restored to the possession of the petitioner, at the expense of the Gram Sabha before the next date of listing.
9. The proceedings be placed before this Court on the next date of listing viz. 26.07.2019. In case needful is not done, we shall be constrained on imposing costs in the sum of Rs.10,000/-
10. List on 26.07.2019.
11. Let a copy of this order be released under signatures of the Bench Secretary."
3. Learned counsel for the petitioner has not appeared to prosecute the case.
4. Shri Raj Baksh Singh, learned counsel for the State has drawn attention of the Court towards affidavit of Shri Satya Pal Prajapati, Naib Tehsildar, Tehsil Jalalpur, District Ambedkar Nagar sworn on 25.7.2019. In paras 4 and 5 of the said affidavit it has been brought out that the wrong has been corrected. Possession of the petitioner has been restored on the land owned and possessed by him. Relevant photographs have been appended with the affidavit.
5. Having considered the contents of the affidavit we find that cause of action does not survive. Apparently it is for this reason that the counsel for the petitioner has not appeared to assist the court, which practice is deprecated by the court.
6. Disposed of.
Order Date :- 26.8.2019 Madhu