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2018 DIGILAW 1740 (ALL)

Lorik Yadav v. State of U. P.

2018-08-07

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. A reply to the affidavit of the Collector Mau has been filed by counsel for the petitioner today and the same is taken on record. 2. The present writ petition has been filed praying for a writ of mandamus commanding the respondents revenue authorities to remove the alleged encroachments made over Plot No. 144, which is recorded as Nala in revenue records. 3. An affidavit sworn by the Tehsildar, Mohammadabad Gohna, District-Mau was filed stating that encroachments over Nala had been removed on 26.3.2018, i.e., previous to filing of the writ petition. However, the said statement made in the affidavit of the Tehsildar was contested by the petitioner and a counter affidavit was filed by the petitioner stating that the aforesaid averments made in the affidavit of the Tehsildar were incorrect. Relying on the said counter affidavit, this Court vide its order dated 23.7.2018 directed the Collector, Mau, i.e., respondent No. 2 to get the disputed plot surveyed in his presence by the revenue authorities after giving notice to the petitioner and submit a report to the Court regarding encroachments over Plot No. 144. In pursuance to the order dated 23.7.2018, an affidavit sworn by the Collector, Mau, was filed in this Court narrating the details regarding the survey done in his presence. The aforesaid affidavit of the Collector also contains the photographs, as evidence, in support of the statement made in the affidavit. It was stated in the aforesaid affidavit of the Collector that even though there were no permanent constructions or tube-well over the plot, but the said plot, which was recorded as Nala in the revenue records, was in the shape of plain and consequently the concerned Block Development Officer was directed to restore the Nala to its original shape. The averments made in the affidavit of the Collector, Mau, that there were no encroachments over Plot No. 144 was also disputed by the counsel for the petitioner and consequently the petitioner was directed to file an affidavit bringing the relevant facts on record. 4. A perusal of the reply filed by the petitioner shows that, in the affidavit, the petitioner has not disputed the averments of the Collector, Mau that the encroachments had been removed and the same did not exist when the plot was surveyed and inspected in the presence of the Collector, Mau. 5. 4. A perusal of the reply filed by the petitioner shows that, in the affidavit, the petitioner has not disputed the averments of the Collector, Mau that the encroachments had been removed and the same did not exist when the plot was surveyed and inspected in the presence of the Collector, Mau. 5. In view of the fact that the averments made by the Collector, Mau in his affidavit regarding removal of encroachments from the disputed plot have not been controverted by the petitioner in his reply filed today, the cause of action in the writ petition does not survive and no further orders are required to be passed in the same. However the Collector, Mau, i.e., respondent No. 2 is directed to ensure that Plot No. 144 which is a drain, be restored to its original position within a period of two months from today. 6. Counsel for the petitioner apprehends that after the disposal of the writ petition, the concerned villagers shall again encroach over Plot No. 144, and therefore, suitable orders may be passed directing the concerned District Magistrate to ensure that there are no further encroachments over the drain. 7. A mere apprehension of the petitioner cannot be a reason to issue any direction or order to the revenue authorities. However, it is clarified that Plot No. 144, as evident from the records, vests in the Gaon Sabha, and therefore the Gram Pradhan and the Secretary of Gram Panchayat/Land Management Committee are liable to inform the revenue authorities regarding any encroachments over the same. In case of laxity on the part of the aforesaid officers in informing the revenue authorities regarding encroachments over any Gaon Sabha land including Plot No. 144, the concerned District Magistrate is empowered to take action against the Pradhan and Secretary in accordance with law. 8. With the aforesaid direction, the writ petition is disposed of.