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2012 DIGILAW 107 (ALL)

SWAMI NATH v. STATE OF U. P.

2012-01-11

S.P.MEHROTRA, SURENDRA KUMAR

body2012
Hon'ble Surendra Kumar,J.:- Counter Affidavit and Rejoinder Affidavit have been exchanged between the parties. The Writ Petition is being disposed of with the consent of the learned counsel for the parties at this stage. The present Writ Petition has been filed by the Petitioner under Article 226 of the Constitution of India, inter-alia, praying for issuance of a writ, order or direction in the nature of mandamus commanding the respondents to pay the due compensation along with interest since 1968 to the Petitioner for the construction of the Link Road ( Lalganj Tarwa Road in District Azamgarh) on the Petitioner's Plot No. 329/2, area 0.080 Kari and Plot No. 351/2, area 0.156 Kari, new number whereof is 112. The case of the Petitioner is that the plots in question, namely Plot No. 329, area .080 Kari and Plot No. 351/2, area 0.156 Kari ( New No. 112), were recorded in the name of the father of the Petitioner namely Naresh, son of Ananti with other co-sharer Antu and, thus, the share of the father of the Petitioner was 1/2. The father of the Petitioner died in December, 1982, whereupon the Petitioner became entitled to 1/4th share in the aforesaid Plot. It is further asserted by the Petitioner that the Link Road in question, namely Lalganj-Tarwa Link Road, was constructed in the year 1968. During consolidation proceedings, the aforesaid Plots were recorded as 'Sarak' ( Road) in the relevant records. The Order dated 17.12.1969 passed on CH Form No. 2Ka ( Annexure-CA-5 to the Counter Affidavit filed on behalf of the Respondents) shows that the aforesaid Plots were recorded as 'Sarak' ( Road). It is further averred in the Writ Petition that the Road was constructed on the aforesaid Plots without paying any compensation. It is further asserted by the Petitioner that during consolidation proceedings, no land was allotted to the Petitioner in lieu of the aforesaid Plots, which were taken out for the Road. The Petitioner has further asserted that an Application dated 10.4.2006 was submitted by the Petitioner, whereupon the Report was called for by the Sub-Divisional Magistrate from the Tehsildar. The Report was submitted by the Tehsildar on 20.4.2006 before the Executive Engineer, Public Works Department, Azamgarh, a copy whereof has been annexed as Annexure-8 to the Writ Petition. The Petitioner has further asserted that an Application dated 10.4.2006 was submitted by the Petitioner, whereupon the Report was called for by the Sub-Divisional Magistrate from the Tehsildar. The Report was submitted by the Tehsildar on 20.4.2006 before the Executive Engineer, Public Works Department, Azamgarh, a copy whereof has been annexed as Annexure-8 to the Writ Petition. It is further asserted by the Petitioner that the Petitioner sought information under the Right to Information Act, 2005 by moving an Application dated 10.8.2007, ( Annexure-7 to the Writ Petition). Reply to the Questions made by the Petitioner was provided by Communication, a copy whereof has been filed as Annexure-9 to the Writ Petition. It is further asserted by the Petitioner that the Executive Engineer, Construction Division, Public Works Department, Azamgarh sent a Communication dated 4.7.2007 to the Settlement Officer Consolidation, Azamgarh, a copy whereof has been filed as Annexure-10 to the Writ Petition. By Order dated 7.7.2008, the Division Bench of this Court passed an order directing the Respondents to file a Counter Affidavit "placing what is the correct position with respect to the payment of compensation". Counter Affidavit has been filed on behalf of the Respondents. The main ground taken in the Counter Affidavit is that the aforesaid Plots came to be recorded as Road by the Order dated 6.12.1969 and the entry continued in various CH Forms issued during consolidation proceedings. The father of the Petitioner had an opportunity to object to the entry made in the relevant CH Forms during consolidation proceedings but the father of the Petitioner failed to do so and the said entry consequently became final, as such, it is not open to the Petitioner to question such entry, now in this Writ Petition before this Court. The Petitioner has filed Rejoinder Affidavit in reply to the aforesaid Counter Affidavit. We have heard Sri Faujdar Rai, learned counsel for the Petitioner and Sri A.N. Shukla, learned Standing Counsel appearing for the Respondents at length and perused the record. The Petitioner has filed Rejoinder Affidavit in reply to the aforesaid Counter Affidavit. We have heard Sri Faujdar Rai, learned counsel for the Petitioner and Sri A.N. Shukla, learned Standing Counsel appearing for the Respondents at length and perused the record. The Report dated 22.4.2006 submitted by the Tehsildar, Lalganj, Azamgarh ( Annexure-8 to the Writ Petition) before the Executive Engineer, Public Works Department, Azamgarh, inter-alia, states as under:- jktLo fujh{kd ykyxat ls tkap djk;h x;hA tkWp vk[;k ls Li"V gS fd ubZ xkVk la & 112 jdok 1&357 dM+h lM+d [kkrk esa vafdr gSA izkFkhZ dh iqjkuh xkVk ua&329@2 jdok &080 dM+h o 351@2 jdok&156 dM+h ubZ xkVk la- 112 esa lfEefyr vafdr gS ftuls Li"V gS fd izkFkhZ dh iqjkuh xkVk ua 329@2 jdok&080 dM+h o 351@2 jdok&156 dM+h lM+d esa pyk x;k gSA tksp vk i= 41 o 45 o tkap vkdkj i= 2d dks ns[kus ls Li"V gS fd izkFkhZ ds mijksDr uacjksa dh ekfy;r ugha feyh gSA ;g mijksDr xkVs igys izkFkhZ ds firk jus'k iq= vuUrh ds uke vafdr jgsa gSaA orZeku le; esa ujs'k ds ejus ds ckn muds yM+ds Jh LokehukFk] jkeukFk] jkeujk;u vkSj ';keujk;u iq=x.k ujs'k ds uke ojklr vafdr gks x;h tc muds okfjlku vius mijksDr xkVksa ls cuh pd dk fujh{k.k djuk izkjEHk fd;k rks irk pyk dh vk ua 329@2@&080 dM+h o 351@2@&156 dM+h ykyxat@rjok ekxZ ;k lM+d esa lfEefyr gks x;k gS rFkk izkFkhZx.k budh ekfy;r ugh ik;s gSaA bl dkj.k ih0MCY;w0Mh0 foHkkx ls ekfy;r gsrq izkFkZuk i= nsdj ekfy;r ;k ewY;adu cktkj nj ls pkgrk gS tks vkids foHkkx ls lEcfU/kr gSA vr% vki vius Lrj ls fuLrkj.k djus dk d"V djsaA g0 vLi"V rglhynkj ykyxat] vktex<+ 22-4-06 16. Answers to various Questions as contained in the Communication (Annexure-9 to the Writ Petition) are reproduced below:- iz'u mRrj 1- pdcUnh ds iwoZ vkjkth ua 329@2 jdok@80 dM+h o 351@2 jdok&156 dM+h fdu yksxksa ds uke ls FkkA 1- tkspvk&11 ds [kkrk la 37 esa ujs'k iq= vuUrh] nw/kukFk iq= egs'k o vUrq iq= jksiu LFkkuh; ds uke FkkA 2- vkjk th ua 112 dk iqjkuk u D;k Fkk\ D;k mDr lM+d [kkrs esa Mkys x;s jdcs dh ekfy;r [kkrsnkjksa dks feyh gS ;k ugh\ 2- bldk iqjkuk ua&329@2&080 o 351@2@&156 dM+h vkfn dqy 15 xkVk jdok 1-357 dM+h lM+d ds [kkrs esa gSA ekfy;r ugha nsuk ik;k tkrk gSA rFkk vfHkys[k dh /kkjk o"kZ cLrsa esa miyC/k ugha gSA 3- ;fn ekfy;r feyh gS rks fdl vkjkth ua rFkk dgkW ij nh x;h gSA 3- ekfy;r ugh fn;k x;k gSA 4- ;fn lM+d [kkrsa esa Mkyh x;h vkjkth dh ekfy;r ugh nh x;h gS rks mijksDr ua dk ekfyd dkSu gS\ mYys[k djsaA 4- tks0p0vk0i= &11 ds [kkrk 37 ij l0p0v0eq0 u0 159@06&12&69 vkns'k ls ewy [kkrsnkj dk ekfy;r ugha fn;k x;k gSA uksV&xzke je.kksa ds vf/kdka'k vfHkys[k-----------gSA rFkk vk/kkj o"kZ [krkSuh cLrs esa ugha gSA 17. The Communication dated 4.7.2007 (Annexure-10 to the Writ Petition) sent by the Executive Engineer, Construction Division, Public Works Department, Azamgarh to the Settlement Officer Consolidation, Azamgarh states as under:- dk;kZy; vf/k'kklh vfHk;Urk fuekZ.k [k.M] yksd fuekZ.k foHkkx] vktex<+A i=kad& 933@14lh fnukad 4@7@2007 lsok esa] cUnkscLr pdcUnh vf/kdkjh] vktex<+A fo"k;& xzke je.kksa ijxuk&nsoxkWo rglhy&ykyxat&vktex<+ Hkqfe ds izfrdj ds lEcU/k esaA &&&&&&&&&&&&&&&&&&& d'i;k Jh LokehukFk iq= ujs'k xzke je.kksa ijxuk&nsoxkWo rglhy&ykyxat ftyk&vktex<+ dks tulqpuk vf/kfu;e 2005 ds rgr vki }kjk fn;s x;s mRrj fnukad&03-01-2007 ftldh Nk;kizfr layXu ds }kjk ;g lqfpr fd;k x;k gS fd pdcUnh ds iwoZ vkjkth ua0 329@2 jdok -080 dM+h o 351@2 jdok 0-156 dM+h [kkrk la[;k 37 esa Jh ujs'k iq= Jh vuarh] nw/kukFk iq= Jh egs'k egs'k vUrw iw= lsou LFkkuh; ds uke Fkk fcUnq&2 ds vuqlkj ftldk ekfy;r pdcUnh foHkkx }kjk nsuk ugha ik;k x;k gS vr% vkils vuqjks/k gS fd d'I;k ekfy;r nsus dh dk;Zokgh djus dk d"V djsaA Jh LokehukFk iq= Jh ujs'k vius izkFkZuk i= fnukad& 04-1-07 Nk;kizfr layXu gS ds }kjk fcUnq&4 esa ;g iz'u iwNk gS ;fn lM+d [kkrs esa Mkyh x;h vkjkth dh ekfy;r ugh nh x;h gS rks mijksDr uEcj dk ekfyd dkSu gS ftlds mRrj esa vki }kjk ;g bafxr fd;k x;k gS fd tks p0vk0i0&11 ds [kkrk la[;k 37 ij l0p0 vf/kdkjh eq0u0 159@6-12-69 ds vkns'k vafdr gSA orZeku vfHkys[k esa mDr Hkwfe;ksa dk LokfdRo fdlds gd esa gSA ekfy;r u nsus dh deh vkids foHkkx }kjk dh x;h gSA vFkkZr ekfy;r vkids foHkkx }kjk fn;k tkuk pkfg;s Fkk tks fd ugha fn;k x;kA vr% dk;Zokgh vkids foHkkx }kjk okafNr gSA g0 vLi"V vf/kdkjh vfHk;Urk fuekZ.k [k.M] yks0fu0fo0 vktex<+ i=kad& 933@14lh fnukad&4@7@07 izfrfyfi& lgk;d vfHk;Urk izFke fuekZ.k [k.M] yk sfu0fo0 vktex<+ dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"krA g0 vLi"V vf/kdkjh vfHk;Urk fuekZ.k [k.M] yks0fu0fo0 vktex< From the narration of the facts above and perusal of the Report of the Tehsildar, the Answers to the various Questions under the Right to Information Act, 2005 and the Communication of the Executive Engineer, Construction Division, Public Works Department, Azamgarh, it is evident that various factual questions will have to be determined for deciding the controversy raised by the Petitioner in the present Writ Petition. Besides the dispute between the parties regarding existence and survival of the grievance of the Petitioner as raised in the present case, the Authorities of the State Government are at issue regarding the manner in which such grievance, if any, would be resolved and as to which Authority would deal with such grievance, if any. In the circumstances, we are of the view that the interest of justice would be subserved by disposing of the Writ Petition by giving following directions:- (1)Within two months from today, the Petitioner will make a Representation along with the relevant documents before the Collector, Azamgarh. A certified copy of this order will also be submitted with the Representation. ( 2)On receipt of such Representation, the Collector, Azamgarh will proceed to decide the same expeditiously, preferably, within a period of three months from the date of receipt of such Representation. The Collector, Azamgarh will give opportunity of hearing to all the persons concerned including the petitioner as well as the co-sharer of the Plots in question and will pass speaking order. The Writ Petition is accordingly disposed of with the aforesaid directions.