Court No. - 30
Case :- WRIT - C No. - 35874 of 2018 Petitioner :- Nagina Singh Yadav Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Rajesh Tewari,Jai Prakash Rai Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and Sri Shashi Kant Upadhyaya, learned Standing Counsel appearing for the respondents.
Present writ petition has been filed seeking a writ of mandamus directing the respondent no. 2, the District Magistrate, Ghazipur to take necessary and quick action against the respondent no. 5 to dispossess and illegal encroachment from the Village Pokhari in the interest of justice and also to decide the complaint/letter dated 16.9.2018 sent by the petitioner within a stipulated period as fixed by this Court.
Submission is that regarding the plot that has been encroached by the private respondent on a public land a writ petition was filed in the year 2007, which was disposed of with a direction to the Sub-Divisional Magistrate, Mohammadabad, district Ghazipur to make spot inspection and in case any encroachment is made appropriate action be taken. Thereafter, the private respondent no. 5 approached this Court by filing Writ C No. 23117 of 2017, Radha Mohan Vs. State of U.P. and others, which was filed challenging the order of Tehsildar dated 6.5.2017 whereby he has restrained the petitioner from making any construction on the disputed land. The same was dismissed by order dated 6.7.2017, however, observing that so far as plot no. 4126 (ka) is concerned, it involves highly disputed question of fact and since the claim of the petitioner therein has already been rejected, no relief can be granted to th petitioner therein.
Attention was also drawn to the order dated 29.8.2018 passed by the Tehsildar with regard to plot no. 2126 (kha) whereby eviction order under Section 67 of U.P. Revenue Code, 2006 was passed, however, till date nothing has been done to remove the construction and drawing attention to Page 40 of the paper book it was stated that only this much has been directed that further illegal constructions be directed to be stopped. Submission is that it is very much clear that the land is a public utility land and therefore, the constructions are liable to be removed apart from stopping the private respondent from raising any construction.
The order dated 25.9.2007 is quoted as under:
"We have heard Sri S.S. Maurya, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
The petitioner has already made a representation to the District Magistrate, Ghazipur, respondent no. 2.
This writ petition is disposed of with a direction to the District Magistrate, Ghazipur that either he himself or he may direct to Sub-Divisional Magistrate Mohammadabad, District Ghazipur to make a spot inspection and see as to whether any encroachment is being made by the respondents on public pond, chak road or land of the Gaon Sabha and if any encroachment is made, appropriate action may be taken against the guilty persons."
The order dated 6.7.2017 is also quoted as under:
"Heard Sri Rakesh Kumar Singh, Advocate holding breif of Sri P.N. Kushwaha, counsel for the petitioner, Standing Counsel for State of U.P. and Sri Rajesh Tiwari, counsel for the private respondents.
Writ petition has been filed for quashing the order of Tehsildar dated 06.05.2017, by which he has restrained the petitioner from making any construction on disputed land.
It is admitted to the petitioner that proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against him for ejectment from the disputed land in which the petitioner has filed an objection, which is still pending before the Tehsildar. According to the petitioner, his construction situates over the old abadi plot and he was repairing the construction only. However, the repairing work has been stopped by the Tehsildar.
By order dated 23.05.2017, Standing Counsel was directed to take instruction in the matter. On the basis of written instruction, it has been informed that the petitioner has encroached upon plot no. 4126(kha) area 0.152 hectare, which was Pokhari land and by making pillars, petitioner has raised construction over it by the side of road. Petitioner has filed time barred objection before the Consolidation Officer, which was rejected by Consolidation Officer on 16.03.2015. According to petitioner, appeal against the order dated 16.03.2015 has also been dismissed and now the revision is pending before Deputy Director of Consolidation.
Petitioner has not filed any document showing his title over plot no. 4126(ka), 4126(kha) and 4126(ga). So far as plot no. 4126(ka) is concerned, it was recorded in the name of Ram Chandra Rai. The other plots were recorded as Pokhari land and Navin parti. Therefore, no question of title over plot no. 4126 (kha) and 4126(ga) arises at all. So far as 4126(ka) is concerned, there is nothing on record to show the construction of the petitioner is on plot no. 4126 (ka). Therefore, this is highly disputed question of fact and could not be investigated by this Court in writ jurisdiction. Prima facie, the claim of the petitioner has already been rejected by the Consolidation Officer and Settlement Officer Consolidation. No relief can be granted to the petitioner. Writ petition is dismissed."
Learned Standing Counsel submits that in view of the documents placed on record, the respondent no. 2 may be directed to look into the matter, who shall take necessary action in accordance with law.
In the facts and circumstances of the case, present writ petition stands disposed of with a direction to the respondent no. 2, the District Magistrate, Ghazipur to look into all the relevant documents and pass necessary orders and also take necessary action in this regard for removal of the construction on public utility land, in accordance with law, as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order provided there is no other legal impediment. No costs.
Order Date :- 30.10.2018 p.s.