Allahabad High Court
Uma Shankar Kushwaha vs State Of U.P. And 6 Others on 11 January, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 1997 of 2022
Petitioner :- Uma Shankar Kushwaha
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Anil Kumar Mishra,Om Prakash Pathak
Counsel for Respondent :- C.S.C.,Azad Rai,Vishwa Pratap Singh
Hon'ble Chandra Kumar Rai,J.
Heard Sri Anil Kumar Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Sri Azad Rai, learned counsel for the respondent- Gaon Sabha and Sri Vishwa Pratap Singh, learned counsel for respondent nos.6 & 7.
The instant petition has been filed for mandamus to take appropriate action for the removal of encroachment of respondent nos.6 & 7 over the Arazi No.502 (old no.878) area 4 bigha 15 biswa, situated in Village- Chilauda, Pargana-Jhunshi, Tahsil- Phoolpur, District- Prayagraj within stipulated period.
In pursuance of the order dated 18.10.2022, instruction has been placed by learned Standing Counsel before this Court in which it is mentioned that vide order dated 31.10.2022 in Case No.T202202030210871, under Section 38 (2) of U.P. Revenue Code, 2006, the entry of Plot No.502M area 0.2850 hectare has been corrected and it has been ordered to be recorded as Pond in the revenue records. It is also mentioned in the instruction that proceeding under Section 67 (1) of U.P. Revenue Code, 2006 has been initiated against Kamal Singh, Arvind, Hariom, Vijay Singh and others, which has been registered as Case Nos.T202202030212205, T202202030212201, T202202030212202 & T202202030212203. The copy of the Khatauni of 1426-1431 fasli has been annexed in which it is mentioned that the Plot No.502M be recorded as 0.8000 hectare as Pond.
Learned counsel for respondent nos.6 & 7 submitted that the petitioner himself has encroached the public utility land and, as such, he is not entitled to maintain the writ petition. He further submitted that the writ petition in the public interest is not maintainable and the same is liable to be dismissed. He next submitted that the petitioner is not come with clean hands. Learned counsel further placed reliance reliance upon the judgment of this Court rendered in Special Appeal Defective No.887 of 2018, Kishan Kumar Tyagi & 2 Others Vs. Suresh Chandra Sharma & 12 others decided on 3.12.2018 on the scope of public interest litigation.
I have considered the argument advanced by learned counsel for the parties and perused the record.
There is no dispute about the fact that instant petition has been filed for the following relief:
"i. issue a writ, order or direction in the nature of mandamus directing the respondent authorities to take appropriate action in the matter in accordance with law and remove the illegal encroachment of the respondent no.6 to 7 over the Arazi No.502 (which is old number 878) area about 4 bigha 15 biswa situated in Village Chilauda, Paragana Jhunshi, Tahsil- Phoolpur, District- Prayagraj within stipulated period.
ii. Issue any other writ, order or direction in the nature as this Hon'ble Court may deem fit and proper in the circumstances of the case.
iii. Allow the writ petition with costs in favour of the petition."
There is also no dispute about the fact that Up-Ziladhikari, Phoolpur, Prayagraj in case under Section 38(2) of U.P. Revenue Code, 2006 vide order dated 31.10.2022 has ordered to expunge the entry of recorded tenure holder (Suresh Chandra and Jagdish Kumar) in respect to Plot No.502M area 0.2850 hectare and the same was ordered to be recorded as pond. The order dated 31.10.2022 has been incarporated in the remark column of khatauni of 1426-1431 fasli, the aforementioned documents have been brought on record by learned Standing Counsel through instruction / report of Up-Ziladhikari, Phoolpur, Prayagraj.
Since Plot No.502M has been recorded as pond, as such, the persons who are in illegal possession of the same will be evicted in accordance with law, as such, the proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against illegal occupant of the pond land.
So far as argument of learned counsel for the respondent nos.6 & 7 is concerned that petitioner himself encroached the public utility land, as such, P.I.L. petition through petitioner is not maintainable cannot be accepted as if proper proceeding is initiated in respect to encroachment of public utility land by petitioner or anybody that will be examined in accordance with law but the present proceeding cannot be dropped as it has been held by respondent no.3 that Plot No.502M area 0.2850 hectare is pond.
Considering the entire facts and circumstances as well as the instruction placed before this Court to the effect that the Plot No.502M has been ordered to be recorded as Pond in the proceeding under Section 38 of U.P. Revenue Code, 2006 and the proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against the illegal occupants, it is directed that respondent no.4 i.e. Tahsildar / Assistant Collector, Tahsil- Phoolpur, District- Prayagraj shall conclude the pending proceeding under Section 67 of U.P. Revenue Code, 2006 against the illegal occupants in accordance with law expeditiously preferably within a period of three months from the date of production of certified copy of this order before him. It is also made clear that if it is found by authorities during course of the proceeding that any other person has also encroached the Plot No.502M (pond area) then appropriate proceeding will be initiated against the illegal occupants of Plot No.502M area 0.2850 hectare (pond area)
Accordingly, the writ petition is finally disposed of.
Order Date :- 11.1.2023
Rameez
