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2023 DIGILAW 1667 (ALL)

Vijay Shankar Rai v. State of U. P.

2023-07-12

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Pankaj Kumar Rai, Counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the Staterespondents, Mr. Kalpnath Rai for respondent nos. 6 to 9 and Mr. Bhupendra Kumar Tripathi for respondent no. 10, Gram Sabha. 2. The instant public interest litigation has been filed for the following relief:- "Issue a writ, order or direction in the nature of mandamus directing the respondent no.2, District Magistrate, District- Ghazipur to decide the representation dated 26.11.2018 which is sent by the petitioner to District Magistrate, District- Ghazipur regarding the eviction of the respondent nos. 6 to 9 from the Arazi No. 728, 780 which is situated in Village Kathut, Tehsil Mohammadabad, District- Ghazipur which is registered as pond in revenue record which has been illegally occupied by the respondent nos. 6 to 9 which is pending before him, within stipulated period." 3. This Court has directed the learned Standing Counsel for State as well as learned Counsel for the Gaon Sabha to file counter-affidavit. The State as well as the private-respondents have filed their counter-affidavit but no counter-affidavit has been filed by Gaon Sabha. Petitioner has filed his rejoinder-affidavit to the counter-affidavit filed by respective parties. 4. Counsel for the petitioner submitted that plot Nos. 728 and 780 situated in Village Kathut, Tehsil Mohammadabad, District- Ghazipur are recorded as pond in the revenue record which is in illegal occupation of respondent nos. 6 to 9. He further submitted that petitioner filed representation dated 26.11.2018 for the removal of the encroachment over the pond in question which has not been considered by the authorities in accordance with law. He further submitted that one civil suit for partition has been filed by private respondents which is pending but the plot in question is not disputed in civil suit for partition filed by private respondents. He submitted that necessary order be passed for the removal of the encroachment over the Arazi Nos. 728 and 780. 5. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that proceeding under Section 122-B of the U.P.Z.A. and L.R. Act has been initiated which is pending. He submitted that necessary order be passed for the removal of the encroachment over the Arazi Nos. 728 and 780. 5. Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that proceeding under Section 122-B of the U.P.Z.A. and L.R. Act has been initiated which is pending. He further submitted that proceeding under Section 122-B of the U.P.Z.A. and L.R. Act, an order was passed that till the conclusion of the proceeding by Civil Court, the proceeding under Section 122-B of the U.P.Z.A. and L.R. Act shall be kept in abeyance. They submitted that unless the proceeding under Section 122-B of U.P.Z.A. and L.R. Act is concluded the order for removal of encroachment cannot be passed. They submitted that instant PIL is misconceived and is liable to be dismissed. 6. Mr. Kalp Nath Rai, Counsel for private respondent nos. 6 to 9 submitted that earlier Writ C No. 10627 of 2014 filed by son of instant petitioner was disposed of vide order dated 19.2.2014 with a direction to the District Magistrate to decide petitioner's application within three months accordingly petitioner's application was disposed of vide order dated 4.4.2014 hence instant PIL is misconceived and liable to be rejected. He further submitted that civil suit for partition being suit No. 315 of 1999 is pending before Civil Court and interim order to maintain status quo is continuing in respect to plot in dispute, as such, unless civil suit No. 315 of 1999 is decided, proceeding for ejectment and damages under Section 122-B of U.P.Z.A. and L.R. Act cannot be heard and disposed of. He further submitted that respondent nos. 6 to 9 are owner of plot No. 1334, new plot No. 728 Ka and 728 Kha, as such, proceeding of ejectment and damages against the respondent nos. 6 to 9 are abuse of process of law. 7. I have considered the arguments advanced by learned Counsel for the parties and perused the records. 8. There is no dispute about the fact that proceeding under Section 122- B of the U.P.Z.A. and L.R. Act has been initiated in respect to the plot in question and the same has been kept in abeyance by the Tehsildar on the ground of pendency of the civil proceeding for partition filed by private respondents. 9. 8. There is no dispute about the fact that proceeding under Section 122- B of the U.P.Z.A. and L.R. Act has been initiated in respect to the plot in question and the same has been kept in abeyance by the Tehsildar on the ground of pendency of the civil proceeding for partition filed by private respondents. 9. The particulars of the cases pending before Tehsildar on the basis of supplementary affidavit filed in PIL and the counter-affidavit of the State, are as follows:- (i) Case No. T2014142902702 Gaon Sabha v. Devendra Rai with respect to plot no. 728 ka/ 0.019 hectare. (ii) Case No. T2014142902703 Gaon Sabha v. Rama Shankar with respect to plot No. 728 ka/ 0.010 hectare. (iii) Case No. T2014142902704 Gaon Sabha v. Dev Nath with respect to plot No. 728 ka/ 0.010 hectare. (iv) Case No. T2014142902705 Gaon Sabha v. Vijai Shankar and others with respect to plot No. 728 ka/ 0.025 hectare. (v) Case No. T2014142902706 Gaon Sabha v. Prabhu Nath and others with respect to plot No. 728 ka/ 0.013 hectare. (vi) Case No. T2014142902709 Gaon Sabha v. Jamuna and others with respect to plot No. 780 Sa/0.019 hectare. (vii) Case No. 170 of 1992 Gaon Sabha v. Amarjeet in respect to plot No. 780 Sa/ 0.009 hectare an order for eviction has been passed on 19.5.2016 against which an appeal was filed which is pending before District Magistrate, Ghazipur. 10. The document of pendency of the aforementioned cases have been annexed by petitioner along with supplementary affidavit as Annexure No. SA-1 except the document of pendency of appeal. State has mentioned the fact of pendency of cases in Para Nos. 10 and 11 of the counter-affidavit. 11. One case being case No. 315 of 1999 Prabhu Nath Rai v. Kuber Rai for partition is pending before Civil Court in which State has filed a written statement dated 27.3.2008 that plot No. 728 and 780 are recorded as pond and sarak, as such, suit for partition in respect to plot No. 728 and 780 is not maintainable. In suit No. 315 of 1999, an application for expedite was filed by State on 1.4.2019 but the Court was vacant hence a transfer application was filed before District Judge on 4.4.2019. 12. In suit No. 315 of 1999, an application for expedite was filed by State on 1.4.2019 but the Court was vacant hence a transfer application was filed before District Judge on 4.4.2019. 12. The Court of Tehsildar Judicial, Mohamdabad, Ghazipur vide order dated 19.5.2016 stayed the proceeding for ejectment/ damages view of the pendency of civil suit No. 315 of 1999 as well as the interim order granted in suit No. 315 of 1999. 13. The proceeding for ejectment and damages under Section 122-B of U.P.Z.A. and L.R. Act now Section 67 of U.P. Revenue Code, 2006 in respect to 728 and 780 cannot be stayed due to pendency of partition suit before Civil Court as plot which are recorded as plot belonging to Gaon Sabha/ Gram Panchayat cannot be a subject matter of partition before Civil Court unless there is a declaration of right in favour of party concerned by competent Court. The civil suit for partition is pending before Civil Court for the last 24 years and suit for ejectment/ damages under Section 122-B of U.P.Z.A. and L.R. Act are pending before Tehsildar for the last 10 years but both proceeding are different proceeding and proceeding relating to Section 122-B of U.P.Z.A. and L.R. Act cannot be kept pending on the ground that suit for partition is already pending before Civil Court. 14. In view of the aforementioned facts and circumstances, interest of justice requires that proceeding under Section 122-B of U.P.Z.A. and L.R. Act in respect to the plots as mentioned in preceding paragraph No. 9 of this order be decided expeditiously and respondent nos. 6 to 9 shall have opportunity to establish their claim if any with respect to right, title and entitlement of the plot in dispute before Tehsildar in the pending proceeding under Section 122-B of U.P.Z.A. and L.R. Act. 15. Considering the entire facts and circumstances, the instant public interest litigation is finally disposed of directing the Tehsildar Judicial, Mohamdabad, Ghazipur to decide the cases being case No:- (i) Case No. T2014142902702 Gaon Sabha v. Devendra Rai with respect to plot no. 15. Considering the entire facts and circumstances, the instant public interest litigation is finally disposed of directing the Tehsildar Judicial, Mohamdabad, Ghazipur to decide the cases being case No:- (i) Case No. T2014142902702 Gaon Sabha v. Devendra Rai with respect to plot no. 728 ka/ 0.019 hectare, (ii) Case No. T2014142902703 Gaon Sabha v. Rama Shankar with respect to plot No. 728 ka/ 0.010 hectare, (iii) Case No. T2014142902704 Gaon Sabha v. Dev Nath with respect to plot No. 728 ka/ 0.010 hectare, (iv) Case No. T2014142902705 Gaon Sabha v. Vijai Shankar and others with respect to plot No. 728 ka/ 0.025 hectare, (v) Case No. T2014142902706 Gaon Sabha v. Prabhu Nath and others with respect to plot No. 728 ka/ 0.013 hectare, (vi) Case No. T2014142902709 Gaon Sabha v. Jamuna and others with respect to plot No. 780 Sa/ 0.019 hectare expeditiously preferably within period of three months after affording opportunity of hearing to both parties in accordance with law. District Magistrate is also directed to decide the appeal pending before him against the order of ejectment and damages dated 19.5.2016 in respect to plot No. 780 Sa expeditiously preferably within period of three months after affording opportunity of hearing to both parties in accordance with law.