1. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.
2. The petitioner has preferred the present Public Interest Litigation inter-alia with the following prayer:-
"(a) issue a writ, order or direction in the nature of mandamus and direct the respondents Asst. Collector/Tehsildar and Revenue Inspector to cause the encroachment made by respondent Khurshid and Samsuddin on burial ground/Kabristan at Araji No. 1668/0.308 HA Village - Ansari Tola, Gram Sabha - Jangal Jagdishpur, Tehsil - Padrauna, District- Kushinagar removed and free the burial ground/Kasbristan from such encroachments for use and enjoyment by the general public within a specified time frame."
3. Facts in brief as contained in the petition are that the petitioner is a sitting Gram Pradhan of Gram Panchayat, Jangal Jagdishpur. The land at Araji No. 1668/0.308 HA is recorded as burial ground/graveyard in the revenue records. It reveals from perusal of the records that the petitioner earlier approach this Court by filing a Public Interest Litigation No. 448 of 2019 (Ram Naresh Yadav vs. State of U.P. and 5 Others). The said writ petition was finally dismissed on the ground of alternative remedy by a Division Bench of this Court vide its judgment and order dated 26.04.2019. The order passed in the aforesaid Public Interest Litigation is reproduced below:-
"1. Heard Sri Yashpal Yadav, learned counsel for petitioner and learned Standing Counsel for State-respondents.
2. This petition has been filed as Public Interest Litigation (hereinafter referred to as 'PIL') seeking a mandamus directing respondents-District Collector and Deputy District Collector, Tehsil-Padrauna to remove encroachment made on the Graveyard land (Kabristan) at Araji No. 1668/0.308 HA located at village Ansari Tola, Jangal Jagdishpur, Tehsil Padrauna, District Kushinagar.
3. If there is any encroachment on Muslim wakf property, provision has been made under Section 54 of Wakf Act, 1995 (hereinafter referred to as "Act, 1995") laying down procedure and authority concerned responsible for removal of encroachment from such wakf property and it reads as under : -
"54. Removal of encroachment from wakf property.?(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli.
(2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed.
(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf.
(4)Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property: Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf."
5. Since petitioner has a specific, expeditious and effective alternative remedy under act, 1995, we do not find any reason to entertain this writ petition and not to relegate to follow aforesaid statutory alternative remedy. Learned counsel for petitioner also could not advance ant substantial argument so as not to relegate petitioner to avail said remedy.
6. Writ petition is, accordingly, dismissed on the ground of alternative remedy. "
4. Pursuant to the same, the petitioner approach the District Minority Welfare Officer, Padrauna. Pursuant to the same two letters were written by the District Minority Welfare Officer, Padrauna to the Deputy District Collector, Padrauna dated 17.07.2019 and 05.09.2019, copies of which were appended as Annexure-5 to the petition collectively.
5. It further appears from perusal of the records that since no action was taken, as such another letter was written by the petitioner before the District Collector on 04.09.2020 with a request to remove the encroachment over the graveyard land at the land in question. It appears that since no action was taken as such the petitioner has preferred the present Public Interest Litigation.
6. Heard counsel for the petitioner and learned Standing Counsel appearing on behalf of respondent nos. 1, 2 and 3.
7. From perusal of the records it further appears that the earlier Public Interest Litigation filed by the petitioner was dismissed on the ground of availability of alternative remedy as provided under section 54 of waqf Act, 1995. It is provided under section 54 of the aforesaid act that whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli.
(2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed.
(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf.
(4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property: Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf.
8. It appears from perusal of the records that pursuant to the order passed by the Division Bench of this Court earlier on 26.04.2019, no such application whatsoever has been filed by the petitioner before the competent authority namely, Chief Executive Officer. It further reveals from perusal of the records that inspite of specific directions given by this Court, an application was filed by the petitioner before the District Minority Officer, Padrauna. It is unfortunate that inspite of the fact that the District Minority Welfare Officer has no jurisdiction whatsoever letters were written by him to the Assistant Collector dated 17.07.2019 and 05.09.2019 that directions were given by this Court in the earlier petition filed by the petitioner, no action whatsoever has been taken by the petitioner to approach the Chief Executive Officer for the removal of encroachment of Wakf property as provided under section 54 of Wakf Act, 1995.
9. In view of the same no relief could be granted to the petitioner, in so far as the present PIL is concerned.
10. The PIL lacks merit and is liable to be dismissed.
11. The PIL is hereby dismissed.
12. Copy of this order to be communicate by the Registry of this Court to the Collector, Kushinagar within a week to forward the same before the concerned authorities.
Order Date :- 4.2.2021 Swati