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2018 DIGILAW 939 (ALL)

QAISAR ALI v. STATE OF U. P.

2018-04-17

MAHESH CHANDRA TRIPATHI

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JUDGMENT : Mahesh Chandra Tripathi, J. Heard Shri L.K. Pandey, learned counsel for the petitioner and Shri Pankaj Rai, learned Additional Chief Standing Counsel for all the respondents. 2. The petitioner is before this Court with request to issue direction to the respondent nos.2 to 4 to secure protection of Plot No.1561-G, which is recorded as Pond and Plot No.1561-Kha, which is recorded as Manure Pit and to comply with the order dated 21.3.2014 passed by the Assistant Collector/Tehsildar, Handia, District Allahabad under Section 122-B of UP ZA & LR Act, 1950 for dispossession of Abdul Jabbar, son of Abdul Sattar & Niyaj Ahmad son of Alla Fez from the aforesaid land in question. 3. Learned counsel for the petitioner states that earlier the petitioner had approached this Court by preferring Public Interest Litigation (PIL) No.68653 of 2011 (Qaisar Ali vs. State of UP through secretary and others). The aforesaid PIL was disposed of by a Division Bench of this Court on 30.11.2011 with following observations:- "The contention on behalf of the petitioner based upon the case of Hinch Lal Tiwari that such unlawful encroachments deserve to be removed, cannot be disputed as a proposition of law. However, from a perusal of the decision in Hinch Lal Tiwari's case, we do not find that it, in any way, dispenses with the procedure to be followed under some statutory law. The view taken by us finds support from a Division Bench decision of this Court in the case of Ravindra Nath Pandey Vs. State of U.P. & Ors., (2010) 1 ADJ 470 wherein, in identical facts and circumstances, it has been observed as under:- "16. To say the least, the decision in the case of Hinch Lal Tiwari is a guidance in law to protect encroachment of public property in the shape of ponds and to restore their position, but on a closer scrutiny, we do not find that the said judgment in any way allows dispensation of the procedure prescribed in law to be adopted for removal of an encroachment or restoration of a pond. It is to be noted that whenever such a mandamus is issued by this Court, the same does not amount to a mandamus for uprooting even a trespasser without following the procedure prescribed by law. It is to be noted that whenever such a mandamus is issued by this Court, the same does not amount to a mandamus for uprooting even a trespasser without following the procedure prescribed by law. Such instances are not unknown to this Court and with experience it has been found that such public interest litigations disclose serious disputed questions of fact which are agitated. 17. It is well settled that a mandamus cannot be issued to disobey law. If the law prescribes a procedure to be followed then the procedure cannot be obviated by a mere filing of a public interest litigation. Deviation from law by the State would lead to unrestrained action reflecting tyranny. Unguided and unbridled action, without proper investigation on the basis of unfounded allegations, or on the strength of mere pretentious public outcry, should not stir the firm foundations of the tried and tested procedures of law. The State authorities while protecting public property are not to discard claims outright on sheer presumptions without attempting to find out the truth." We are in respectful agreement with the aforesaid view expressed by the Division Bench. Considering the facts and circumstances of the case and looking to the submissions made before us and also as agreed to by the learned counsel for the parties, we dispose of this writ petition with the direction that in the event the petitioner approaches the appropriate authority for redressal of his grievances by making a representation, the same shall be considered and disposed of by the said authority in accordance with law after hearing the necessary parties." 4. Learned counsel for the petitioner states that in compliance of the aforesaid order dated dated 30.11.2011, the proceeding under Section 122B of UP ZA & LR Act has been initiated against the incumbents, who have encroached the pond in question and the Tehsildar, Handia, District Allahabad passed an order dated 21.3.2014 against Abdul Jabbar and Niyaj Ahmad. They filed revision before the second respondent and the said revision was dismissed on 16.4.2016. They filed revision before the second respondent and the said revision was dismissed on 16.4.2016. Grievance of the petitioner is that even the proceeding has been finalized and the eviction order was passed by the Assistant Collector/Tehsildar, Handia, District Allahabad on 21.3.2014 against Abdul Jabbar and Niyaj Ahmad but inspite of the aforesaid order, actually on the spot the private incumbents have not been evicted from the land in question and still they are in illegal possession of the land. In this circumstances, again the petitioner is before this Court for issuing appropriate direction to the Assistant Collector/Tehsildar, Handia, District Allahabad for ensuring compliance of the order dated 21.3.2014. 5. The Court has proceeded to examine the record in question and finds that in compliance of the direction so issued by the Division Bench of this Court on 30.11.2011 in PIL No.68653 of 2011, the proceeding under Section 122B of UP ZA & LR Act has already been finalized against the incumbents, who have encroached the land in question. In such situation, it is incumbent upon the competent authority for ensuring compliance of the order dated 21.3.2014 and to remove the unauthorized construction from the said land. 6. Consequently, the writ petition is disposed of finally, asking the Assistant Collector/Tehsildar, Handia, District Allahabad for ensuring compliance of the order dated 21.3.2014, in case there is no other impediment, after giving opportunity of hearing to the incumbents against whom the proceeding under Section 122-B of UP ZA & LR Act has been finalized within a period of two months from the date of receipt of certified copy of this order.