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2020 DIGILAW 332 (ALL)

Vishwambhar Nath Mall v. State of U. P.

2020-01-29

PRAKASH PADIA

body2020
JUDGMENT : 1. Heard Sri Devendra Dhama, learned counsel for the petitioner. 2. The petitioner has preferred the present Public Interest Litigation (in short PIL) with the prayer to quash the order dated 22.06.2017 passed by Sub Divisional Magistrate, Padrauna Tehsil Padrauna District Kushi Nagar/respondent no. 3. 3. Facts in brief as contained in the writ petition are that Gata No. 251 (0.3970 Hectare) and 391 (0.0650 hectare) in village Barhaj Tappa Pakadi Gagrani, Pargana Sidhuva Jogna Tehsil Padrauna District Kushi Nagar is recorded Pokhari (pond) in Khata Khatauni No. 00543 of 1420-1425 Fasli. The Surendra Singh/respondent no. 9 was elected Pradhan of Gaon Sabha Barhaj Tappa Pakadi Gagrani Tehsil Padrauna District Kushi Nagar for period 1997-2005. Taking advantage of his post during the aforesaid period he permitted his brother Brijendra Singjh/respondent no. 8, respondent nos. 5, 6, 7, 10, 11 and 12 illegally to encroach and take possession of Pokhari (pond) on Gata No. 251 and 391. At this point of time a PIL was preferred by the petitioner before this Court being Civil Misc. Public Interest Litigation No. 1043 of 2017 (Vishwambhar Nath Mall vs. State of U.P. and 11 Others). The aforesaid PIL was disposed of on 11.01.2017. The order dated 11.01.2017 is reproduced below:- "Heard learned counsel for the petitioner, learned Standing Counsel for State-respondents and learned counsel for respondent no. 4. Grievance of the petitioner is that Khasra Plot Nos. 251 and 391 of village Barhaj, Tappa Pakadi Gagrani, Pargana Sidhuva Jogna, Tehsil Padrauna, District Kushi Nagar is pond and also recorded as Pond in the Khatauni but it has been encroached by the respondent nos. 5 to 12 and despite representations dated 07.09.2016 and 06.10.2016 made before the respondent nos. 2 and 3, no action has been taken. Under Section 67 of Uttar Pradesh Revenue Code, 2006, power has been conferred upon the Assistant Collector to prevent wrongful occupation over Gram Sabha land. In view of the aforesaid, the respondent no. 3 is directed to inquire into the matter and take appropriate decision/ action in accordance with law expeditiously, preferably within six months from the date of production of a certified copy of this order along with an application, after affording opportunity of hearing to all the parties concerned. With the observation made above, the writ petition is disposed of without expressing any opinion on merits of the case." 4. With the observation made above, the writ petition is disposed of without expressing any opinion on merits of the case." 4. Pursuant to the same, order dated 22.06.2017 was passed by the respondent no. 3 stating therein that since the cases are pending under section 67 (1) of the U.P. Revenue Code, 2006 it is not possible to take any action in the matter. 5. It is argued by Sri Dhama, learned counsel for the petitioner that the recital made in the order dated 22.06.2017 are absolutely illegal and incorrect. Stating all these facts the present PIL is filed by the petitioner. A counter affidavit has been filed on behalf of respondent nos. 2 and 3. It is stated in the aforesaid counter affidavit that several eviction orders were passed from the court of Tehsildar/Sub Divisional Magistrate, Kushinagar against the illegal encroachers and the restoration applications filed against the eviction orders were also rejected after hearing all the parties concerned. It is further stated that out of the several encroachers one Rajai Prasad, respondent no. 5 in the present PIL filed Writ C No. 14320 of 2019 before this Court in which an interim protection was granted in his favour by Coordinate Bench of this Court dated 29.04.2019. The aforesaid order is continuing even today. In the supplementary rejoinder affidavit filed by the petitioner it is stated in paragraph-7 that the entire encroachment by Ram Sagar son of Dal Singar over plot in dispute has not been removed from the spot. In this regard, the petitioner has already submitted representation before Additional Commissioner Gorakhpur on 04.04.2019 as well as representation dated 25.02.2019 before the District Magistrate, Kushinagar, copies of the aforesaid representations were appended by the petitioner in the rejoinder affidavit dated 16.04.2019 filed in the registry on 18.04.2019. 6. It appears from perusal of the averments made in the aforesaid affidavit that representation dated 04.04.2019 was filed by the petitioner before the Additional Commissioner Gorakhpur Division, Gorakhpur as well as before the District Magistrate/Collector, Kushi Nagar on 25.02.2019. It is argued that the aforesaid representations are still pending before the authorities concerned. 7. Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1, 2 and 3 and Sri Krishna Kant, learned counsel for respondent no. 4. 8. It is argued that the aforesaid representations are still pending before the authorities concerned. 7. Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1, 2 and 3 and Sri Krishna Kant, learned counsel for respondent no. 4. 8. Without interring into the merits of the case the present Public Interest Litigation is disposed of finally permitting the petitioner to submit a fresh representation ventilating all his grievances before respondent no. 2/District Magistrate, Kushi Nagar along-with certified copy of this order within a period of three weeks' from today. If such representation is made, he will pass appropriate order on the same after hearing all the tenure holders, expeditiously and preferably within a period of three months' from the date of production of certified copy of this order. 9. With the aforesaid observations, the present PIL is disposed of finally.