Court No. - 42
Case :- WRIT - C No. - 18899 of 2021 Petitioner :- Ramji Pathak Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vivek Tiwari,K.S. Tiwari Counsel for Respondent :- C.S.C.,Pradeep Singh
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents and Sri Pradeep Singh, learned counsel appearing for the Gaon Sabha.
Present petition has been filed with following prayer:-
"(i) A writ order or direction in the nature of certiorari quashing the order dated 23.3.2021 passed by respondent no. 2 (Annexure No. 12 to this writ petition).
(ii) A writ order or direction in the nature of mandamus commanding and directing the respondents not to demolish the ancestral house of the petitioner."
Admittedly, petitioner is in possession over the pond land, which is covered under Section 77 (1) of the U.P. Revenue Code, 2006 (Section 132 of the U.P.Z.A. & L.R. Act, 1950). The petitioner prayed that he is willing to give his own land in exchange of the pond land and is also ready to deposit the requisite amount for the digging of the pond. Earlier petitioner has approached this Court by filing Writ- C No. 26474 of 2020 (Ramji Pathak vs. State of U.P. And 4 Others), which was disposed of by this Court vide order dated 18.2.2021, which is quoted as under:-
"When it was discovered that the petitioner's house was constructed over a pond land, then the petitioner prayed for exchange of his own land with the land of pond and also stated in the exchange application that he was ready to deposit the requisite amount which was required for the digging of the pond.
Without going into the merits of the case, it is provided that if the exchange is covered by the provisions of section 101 of the U.P. Revenue Code, 2006 then the same shall be done and the amount which the petitioner is ready to pay for digging of the pond may also be ascertained. This exercise shall be concluded within a period of 90 days from the date of presentation of a copy of this order duly certified by learned counsel for the petitioner.
With these observations, the writ petition is disposed of. "
Pursuant to the aforesaid order, the order dated 23.3.2021, order impugned herein was passed by the respondent no. 2, District Magistrate/ Collector Mirzapur whereby the representation of the petition has been rejected.
Challenging the said order, submission, of learned counsel for the petitioner is that the petitioner is having ancestral house on the land in question and in case, the same is demolished he will become homeless. It is further submitted by learned counsel for the petitioner that the petitioner had made offer in exchange to give land of equal valuation wherein he is ready to bear the expenses of digging the pond and therefore, the exchange may be accepted in view of the Government Order dated 13.10.2008.
Per contra, learned Standing Counsel as well as learned counsel appearing for the Gaon Sabha submitted that no interference is warranted in the impugned order, inasmuch as, a finding has been recorded in the impugned order that the petitioner has sufficient private land in his possession and in case, encroachment is removed, he will not be rendered homeless and no public cause is served by this exchange.
I have considered the rival submissions and also gone through the Government Order dated 13.10.2008 and the relevant documents available on record.
It is not in dispute that the petitioner has encroached upon the pond land, which is covered under Section 77 (1) of the U.P. Revenue Code, 2006 and after noticing this fact, I find that in the impugned order, the District Magistrate in the light of Government Order dated 13.10.2008 has considered the provisions under Section 77 (1) and sub- Section (2) of the U.P. Revenue Code, 2006 and found that no public purpose would be served by this exchange and the petitioner will not be rendered homeless. The District Magistrate had considered the facts of the case on merits and recorded his satisfaction while rejecting claim of the petitioner for exchange of land.
In such view of the matter and also in view of the law laid down by the Hon'ble Apex Court in case of Hinch Lal Tiwari Vs. Kamala Devi and others, reported in AIR 2001 SC 3215 as well as in the case of Jagpal Singh and Other vs. State of Punjab and others, reported in (2011) 11 SCC 396, I do not find any good ground to entertain the present petition.
Petition is devoid of merits and is, accordingly, stands dismissed.
Order Date :- 24.9.2021/Aditya