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2016 DIGILAW 3219 (ALL)

JEEVAN LAL BAJPAI v. STATE OF U. P.

2016-09-21

A.P.SAHI, VIJAY LAKSHMI

body2016
JUDGMENT By the Court.—Heard the learned counsel for the petitioner and the learned Standing Counsel for the State respondents Nos. 1 to 5 and Sri B.L. Mishra, Advocate who has filed an application on behalf of six persons Chandrakant Bajpai and others contending that the continued use of the well is in the interest of the entire locality and the same has also been recently repaired. It is in the use of all the villagers of the locality. He, therefore, submits that the offer made by the petitioner to get it demolished at his own expense, is not acceptable and is against the interest of the villagers. 2. The petitioner contends that the well is situated over Plot No. 395 which is on the private tenure holding of the petitioner and as such the petitioner has every right to control the operation of the said well. 3. From the record it has been pointed out by the learned Standing Counsel that the Sub Divisional Magistrate has taken notice of the fact that the well had gone into disuse and consequently since it felt within the private holding of the petitioner the same should be allowed to be demolished if the other villagers do not have any objection to the same. 4. The said order of the Sub Divisional Magistrate dated 16.4.2016 is annexed as Annexure No. 8 to the writ petition. 5. It appears that a report had been called upon and a copy of the same has been filed as Annexure No. 7, where it is indicated that the well was in disuse continuously for the past several years and therefore, the existence of the well is dangerous for the petitioner and his family members and his children. However, a rider has been put in the report that since the well had been got repaired from public funds, therefore, appropriate orders should be passed by the Sub Divisional Magistrate. 6. The petitioner contends that the well had been constructed by his predecessors long back and recently got repaired which cannot change the nature of the ownership of the well and consequently, the same cannot be treated to be a public well. 7. 6. The petitioner contends that the well had been constructed by his predecessors long back and recently got repaired which cannot change the nature of the ownership of the well and consequently, the same cannot be treated to be a public well. 7. We have considered the submissions raised and according to the provisions of the U.P.Z.A. & L.R. Act, 1950, it was only the tanks, well and other water resources that were under the control of the Zamindars, namely the Intermediaries that stood vested in the state. A private well owned by a person over his private land did not loose its propriety status. Reference is made to the provisions of Section 9 of the 1950 Act. Consequently, if the well is located over Plot No. 395 then it cannot be said that the said property was available for the use of public merely because it had been got repaired through some public funds at the instance of the villagers without the consent of the petitioners. 8. On the other hand if the well is not situate over the private land of the petitioner then the rights of the parties would be subject to adjudication by the appropriate forum. 9. The claim of the petitioner, therefore, cannot be said to be absolutely unfounded more so when the report itself states that the situation of the well is such that it is likely to cause danger to the family of the petitioner. In such a situation, the Sub Divisional Magistrate shall pass appropriate orders in order to ensure that nobody’s private property is interfered with. 10. Consequently, if there is any danger to the life of the family members of the petitioner, who alleges that the well is right in front of his house, it shall be open to the petitioner to take other steps that may be necessary for the protection of his rights and further in the event the well is allowed to continue the same shall be protected with a wire net so as to prevent any accident in future or by raising an appropriate fencing over the same. 11. This order shall not amount to any declaration of rights that shall be subject to the law governing the same and adjudication by the proper forum. 12. With the aforesaid observations, this writ petition is disposed off.