Court No. - 34
Case :- WRIT - C No. - 31606 of 2019 Petitioner :- Sushila Devi Respondent :- State Of U.P. And Another Counsel for Petitioner :- Dharmendra Kumar,A.P. Singh Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard Mr. Amit Pratap Singh, learned counsel for petitioner and learned Standing Counsel representing respondents.
2. Petitioner has filed present writ petition for mandamus directing respondent No.2 Executive Engineer, Irrigation Division-2, Kushinagar to remove illegal encroachment made on land in question situate in village Davanaha, P.S. Sevrahi, District Kushinagar and further decide representation dated 29.7.2019, made by petitioner to respondent No.2 regarding aforesaid.
3. Perusal of record shows that there is a land of Irrigation Department in front of petitioner's house, which has been occupied by some anti-social elements. According to petitioner, land of Irrigation Department which has been illegally occupied should be resumed by ousting those who have illegally occupied the same. It is in this regard, petitioner has made representation dated 29.7.2019 before respondent No.2.
4. If any private individual has committed any offence in respect of public land, remedy lies in initiating criminal proceedings or other proceedings under common law. Petitioner, at best, can be complainant before authorities concerned. However, as the authorities are not taking any action, petitioner is seeking a mandamus directing respondent no.2 to get illegal encroachment made over land of Irrigation Department removed. In our opinion, writ petition does not lie, since petitioner is not enforcing any of his legal or fundamental right.
5. When questioned, as to under which provision aforesaid representation has been made and how respondent no.2 is under a statutory obligation to decide the same, learned counsel for petitioner could not show any provision under which such representation is referable. Thus, there is no legal right under any statutory provision enabling the petitioner to file representation dated 29.7.2019.
6. It is well settled that a writ of mandamus would lie only if petitioner is seeking enforcement of a legal right, and respondents are under a corresponding statutory obligation to do or not to do something.
7. In Oriental Bank of Commerce Vs. Sunder Lal Jain and another (2008) 2 SCC 280 the Apex Court after referring to its earlier judgments in Bihar Eastern Gangetic Fisherman Cooperative Society Ltd. Vs. Sipahi Singh (1977) 4 SCC 145; Lekhraj Sathramdas Lalvani Vs. N.M. Shah, AIR 1966 SC 334, Dr. Uma Kant Saran Vs. State of Bihar 1993(1) SCC 485 observed as under:
"There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officer exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance."
8. In view of above, relief prayed for in this writ petition cannot be granted. Dismissed.
Order Date :- 27.9.2019 Arshad