Allahabad High Court
Raj Kumar Yadav vs State Of U.P. And 13 Others on 15 July, 2021
Bench: Munishwar Nath Bhandari, Acting Chief Justice, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 297 of 2019
Petitioner :- Raj Kumar Yadav
Respondent :- State Of U.P. And 13 Others
Counsel for Petitioner :- Sushil Kumar Rao,Sri O.P. Singh (Senior Advocate)
Counsel for Respondent :- C.S.C.,Chandra Bhan Gupta,Mohd. Aqueel Khan,Pradeep Kumar Tripathi,Saurabh Srivastava
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
Hon'ble Ajai Tyagi,J.
Writ petition has been filed with the following prayer which is reproduced for ready reference:
1. Issue a writ, order or direction in the nature of Mandamus commanding the respondent no.3 to remove the illegal encroachment made by respondent nos. 6 to 14 over the old Arazi No. 1115/Sa of Khata No. 136 and Khata No. 156, area 3 bigha, 8 biswa, 8330 sq. yd. i.e. 6964 sq. mt., recorded as 'pond land' in Khatauni of Mohal Visheshwar Prasad, Mauza Wazidpur @ Jajmau, Kanpur Nagar and also remove the illegal encroachment made by the respondent nos. 6 to 14 over old Arazi No. 1115/La of Khata No. 143, area 16 biswa, 1960 sq.yd. i.e. 1638 sq. mt. recorded as 'banjar' land in Khatauni of Mohal Devi Charan, Mauza Wazidpur @ Jajmau, Kanpur Nagar, within stipulated period as fixed by this Hon'ble Court.
The writ petition has been filed alleging encroachment on various khatas referred in the prayer clause. The counter to the writ petition is followed by a supplementary affidavit. It is to demonstrate that Khata No. 136 has been recorded in the name of private person and so far as Khata No. 143 is concerned, it is shown to be a 'banjar land'. Litigation in regard to land in question went up to the Board of Revenue followed by judgments. Vice Chairman, Kanpur Development Authority submits that wherever encroachment exists, it would be removed after undertaking process of law.
Learned counsel for the petitioner submits that the documents on record show that a land was recorded as 'talab' and other part to be 'banjar'. Once a land is recorded as 'talab' or 'banjar', the entries cannot be changed rather to be maintained. Despite recording land of Khata No. 136 to be a 'talab', the respondents have allowed encroachment on land by private person. In same manner reference to Khata Nos. 143 and 156 has been given.
Counsel for the respondents has referred to the revenue records to show that land of Khata No. 136 has been recorded in the name of private person though land use has been shown to be of 'talab' but being a private land it cannot be considered to be a 'talab' for public utility but would be a private 'talab'. In the similar manner, a reference has been given to show it to be in the name of many persons thus a minjumla. It is no doubt that some part of Khata No. 143 is 'banjar' but area is yet to be identified for which respondents would send a notice to other land holders to identify demarcate the lawful occupants and banjar land. If any encroachment is found thereupon, it would be removed immediately.
Looking to the facts aforesaid, we dispose of this writ petition with the following directions:
1) So far as the land of Khata No. 136 is concerned, it cannot be said to be a case of encroachment because the land belongs to a private person. If part of it is used as a pond, it is to be considered to be a private pond. Thus, question of encroachment therein does not arise.
2) So far as land of other khatas shown to be 'banjar', respondents are directed to identify their lands and after earmarking the area, to remove the encroachment, if exist. The exercise aforesaid would be initiated within a month and to be completed within a reasonable time.
It goes without saying that while undertaking the exercise, as directed above, care would be taken to the judgment of the Board of Revenue. The exercise should not to offend the directions given therein and accordingly it is clarified that if any part of the land belonging to the government has been encroached, the same would be removed without further delay. The exercise for it would obviously be taken in strict compliance of the process of law.
Order Date :- 15.7.2021
Madhurima
