Court No. - 46
Case :- WRIT - C No. - 575 of 2019 Petitioner :- Qadeer Khan Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Archana Singh Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
Heard Mrs. Archana Singh, learned counsel for the petitioner and Sri Siddharth Singh, learned Additional Chief Standing Counsel.
The petitioner is stated to be the owner of plot no. 433/1 having area 0.2690 hectare situated at Village-Ajeetpur, Tehsil-Sadar, District-Rampur. Petitioner stated in the writ petition that Gul (Nali) is situated on plot no. 432, and plot nos. 428, 429, 430 are contiguous to plot no. 433/1, and respondents have removed the nali on plot no. 432 and are constructing road over the said land by encroaching the land of the petitioner. In the aforesaid backdrop, the petitioner has prayed for writ of mandamus directing the respondents nos. 2 to 5 to take appropriate action against the respondent nos. 6 to 11 and further direct the private respondents not to interfere with the peaceful possession of Gata No. 433/1 belonging to the petitioner.
This Court on 21.01.2019 passed the following order:-
"The petitioner is aggrieved by the fact that the petitioner's plot no. 433/1 was being encroached upon by certain villagers arrayed as respondent nos. 6 to 11 in the writ petition.
The contention of the learned counsel for the petitioner is that petitioner had also approached the Collector but he was not taking any action.
Learned Standing Counsel may take instructions. Put up this case on 05.02.2019 as unlisted."
Thereafter on 05.02.2019 this Court passed the following order:-
"Learned Standing Counsel has placed the instructions. They may be kept on record.
The petitioner's grievance was that because of the making of a Nali, the area in plot no.432/1 which was as per the record measuring 0.2690 hectares, was reduced in area. The instructions do not reveal that in fact plot no.432/1 was measured after the encroachment on the Gul was removed.
The petitioner's grievance can be redressed if the plot no.432/1 is measured and the petitioner is actually put in possession over 0.2690 hectares of land.
Put up this petition on 19.2.2019 as unlisted."
In compliance of the order dated 05.02.2019, demarcation of plot no. 433/1 was done by the Revenue Inspector, Panvadiya and he has submitted a report on 17.02.2019 stating therein that despite service of notice upon the petitioner with respect to the demarcation proceeding, he did not turn up and participated in demarcation proceeding, and that proceeding of demarcation of plot was undertaken on 17.02.2019 in the presence of the Gram Pradhan and other villagers and police. The demarcation of plot no. 433/1 was carried out and it was found that petitioner is in possession over extra area of 0.030 as according to the said report the actual area of the plot no. 433/1 is rakba 0.269 hectare whereas on demarcation it was found that petitioner is in possession of 0.299 hectare of the aforesaid plot. The report of the Revenue Inspector Panvadiya has been placed before this Court by the learned Additional Chief Standing Counsel.
Be that as it may, the demarcation of plot no. 433/1 has been done by the Revenue Inspector in compliance of the order passed by this Court. If the petitioner is aggrieved by the said order, he may approach the concerned S.D.M. by filing his objection. The relief sought by the petitioner in the present writ petition cannot be granted for the reasons that dispute involved in the writ petition is factual in nature and it cannot be determined by this Court in exercise of power under Article 226 of the Constitution of India.
This Court is of the opinion that an opportunity may be given to the petitioner to file objection against the report dated 17.02.2019 before S.D.M., respondent no.4. In case the objection is filed by the petitioner within four weeks from today, the same shall be decided by the respondent no. 4 within a period of three months thereafter. For a period of four month or till disposal of the objection, whichever is earlier the parties are directed to maintain status quo over the plot in dispute.
With the aforesaid observation, the writ petition is disposed of.
Order Date :- 30.4.2019/AKT