Allahabad High Court
Acharya Ram Chandra Shukla Nagar Kalyan ... vs State Of U.P. And Others on 21 February, 2019
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 19.09.2018 Delivered on 21.02.2019 Court No. - 34 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 17137 of 2002 Petitioner :- Acharya Ram Chandra Shukla Nagar Kalyan Samiti Deoria & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- J.P. Singh, A.Khare Counsel for Respondent :- C.S.C., A.K. Panday, A.K. Srivastava, Aalok Kumar Srivastava, D.P. Singh, H.P.Dube, P.N. Pandey, R.S. Misra, R.S. Singh, Vashist Tiwari Hon'ble Sudhir Agarwal,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Heard Sri J.P. Singh, learned counsel for petitioners, Sri Alok Kumar Srivastava, learned counsel for respondents-4 and 5, Sri C.B. Yadav, learned Senior Counsel assisted by Sri Anil Kumar Pandey, Advocate for respondent-6, Sri H.P. Dube, Advocate for respondent-7 and Sri Prashant Mathur, learned Additional Chief Standing Counsel for State-respondents.
2. This writ petition has been filed as a "Public Interest Litigation" under Article 226 of Constitution of India praying for a writ of certiorari for quashing order dated 25.12.1997 (Annexure-6 to the writ petition) whereby disputed land reserved for Nursery School and Park has been allotted to respondent-6, Shivam Seva Sansthan.
3. Facts in brief, giving rise to this writ petition, are that State Government floated a residential scheme, namely, "Bhujauli Road, Aawasiya Yojana, Aacharya Ramchandra Shukla Nagar, Deoria, pursuant to integrated urban development scheme of Government of India. Scheme was published by District Magistrate, Deoria vide letter dated 26.01.1984. A map of said scheme was also approved by Nagar Palika Parishad, Deoria (hereinafter referred to as "N.P.P., Deoria") wherein in Block-B, a land was marked as Park No. 9 and adjacent thereto, the land was earmarked for Nursery School and both are separately shown in the sanctioned map, copy whereof is filed as Annexure-2 to the writ petition.
4. Residents of aforesaid Scheme constituted a Society, namely, Acharya Ramchandra Shukla Nagar Kalyan Samiti (hereinafter referred to as "Society") registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as "Act, 1860") vide Registrar Society's Certificate dated 22.08.1991. Objectives of said Scheme stated in Memorandum, are as under :
^^1- {ks=h; yksxksa esa vkil esa ,drk] HkkbZpkjk] lg;ksx ,oa lnHkko dks c<+kok nsukA 2- {ks=h; yksxksa esa lkSgknZiw.kZ laca/k rFkk izse Hkkouk fodflr djukA 3- {ks= ds fuokfl;ksa ds lkekftd] vkfFkZd lkaLd`frd ,oa 'kSf{kd mRFkku gsrq iz;kl djukA 4- {ks= esa vkoklh; dfBukbZ;ksa ds fuokj.k gsrq lacaf/kr vf/kdkfj;ksa] foHkkx ,oa lLFkkvksa lslEidZ djuk rFkk ,sls oS/kkfud dk;Z lapkfyr djuk rFkk lEikfnr djuk tks blds fy, vko';d gksA 5- lfefr ds mn~ns';ksa dks izkIr djus ds fy, ,sls dk;Z djuk tks laLFkk dh LFkkiuk izcU/k ,oa lapkyu vkfn ds fy, vko';d gksA 6- lfefr ds izHkkoh dk;Z lapkyu gsrq lnL;rk 'kqYd] vuqnku ;k vU; lzksr vk; izkIr djuk ftlls mn~ns';ksa dh iwfrZ gksA 7- ,sls vU; lHkh dk;Z djuk tks lnL;ksa ds LoPN ,oa lqjf{kr thou rFkk fodkl ds fgr esa gksaA** "1. To promote mutual unity, harmony, cooperation and goodwill among the local people.
2. To develop cordial relations and affection among the local people.
3. To endeavour for social, financial, cultural and educational uplift of the residents of area.
4. To contact concerned officers, departments and institutions for redressal of residential problems of the area and to run and conduct such legal functions as are necessary therefor.
5. To carry on such activities intended to achieve the objectives of the society as are essential for establishment, management and conduct of the society.
6. To procure membership fee, grant and income from other sources for effectively carrying on the affairs of the society.
7. To exercise all such functions as are conducive to clean and safe life as also to development."
(English Translation by Court)
5. Respondent-7, Dr. Shiv Hari Singh was elected as Chairman, N.P.P., Deoria in the year 1995. He is also a resident of aforesaid Scheme. Another Society, namely, Shivam Seva Sansthan, 75 Neta Colony, Deoria, U.P. (hereinafter referred to as "S.S.S. Society") was also got registered vide Registrar Society's Certificate dated 28.10.1996 and objectives of aforesaid Society are as under :
^^1- Hkkjrh; laLd`fr ijEijk ds vk/kkj ij lknk thou] mPp fopkj ij] izkFkfed] mPpre ek/;fed fo|ky; rFkk le;kuqlkj b.VjehfM;V dkyst [ksyuk] ftlesa Hkkjrh;rk] LokyEcu] Lons'k izse lekt lsok vkfn dh Hkkouk mRiUu gksA 2- {ks= esa 'kkjhfjd] ekufld] pkfjf=d 'kfDr;ksa dk fodkl djukA lekt ds nfyr oxZ ds fodkl gsrq gfjtu ,oa vkfnokfl;ksa ds dY;k.k ds fy, ckyd] ckfydk] fo|ky;] vukFkky;] fpfdRlky;] iqLrdky; vkfn pykukA 3- y?kq m|ksx] [kknh xzkeks|ksx] iapk;r m|ksx vkfn dk lapkyu djukA ftles nfyr oxksZa ,oa detksj yksxksa dh thfodk dh O;oLFkk djuk lekfgr jgsxkA 4- laLFkk ds xBu ds fy, le;≤ ij fu;e] mifu;e cukuk] rn~uqdwy lnL; e.My rFkk izca/kdkfj.kh lfefr dk fuekZ.k djukA laLFkk dks mUufr'khy cukus ds fy, lHkh izdkj ds dk;Z djukA 5- laLFkk ds fodkl ds fy, lR; o vfgalk dk fodkl djukA** "1. Intending to uphold the ideal of simple life and high thinking in adherence to Indian cultural tradition, to establish primary, higher secondary schools and, responding to call of the time, intermediate colleges which may help promote the notions of Indianism, self-dependency, patriotism, social service, etc.
2. To develop physical, mental and moral forces in the area. To run boys' and girls' schools, orphanages, hospitals, libraries, etc. for development of Scheduled Castes of the society and for the welfare of the tribals.
3. To run small-scale industries, khadi gramodyog, panchayat industries, etc. promising livelihood to Scheduled Castes and weaker sections.
4. To frame rules and bye-rules for constitution of society from time to time and to form Board of Members and Management Committee accordingly. To exercise all types of functions to make the society progressive.
5. To promote truth and non-violence for the development of society. (English Translation by Court)
6. It is alleged that Sri Ashok Singh son of Sri Jamadar Singh, President of respondent-6 i.e. S.S.S. Society, is real brother-in-law of respondent-7. Similarly, Sri Awadhesh Singh son of Sri Rajdeo Singh who is shown as Manager of said Society, is brother-in-law of respondent-7. One Ram Singh son of Shyam Narain Singh shown as Vice-President, is cousin of respondent-7. Respondent-7 is an active member of Bhartiya Janta Party, a political organization. It is also said that Sudarshan son of Moti Lal shown as member of Society, is a domestic servant of respondent-7 and other promoter members are also close associate of respondent-7.
7. S.S.S. Society (respondent-6) was formed with an oblique motive and to grab land reserved for Nursery School and Park in Scheme. Respondent-7, Dr. Shiv Hari Singh has his house on Plot No. 240 and across the road, land reserved for Nursery School and Park-9 are in front of his plot. By impugned order, disputed land was allocated to S.S.S. Society i.e. respondent-6. Respondent-7 got it allotted under his influence as Chairman, N.P.P., Deoria.
8. The land reserved for park cannot be used for any other purposes and allotment and grabbing of land by respondent-7 through respondent-6 is nothing but a wholly illegal and unlawful exercise and respondents-authorities have also failed to protect public land meant for "Park" in violation of statutory provisions contained in The Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975 (hereinafter referred to as "Act, 1975").
9. Respondents-4 and 5 have filed a joint counter affidavit sworn by Sri Markandey Mishra, Suit Clerk N.P.P., Deoria. It is stated that Aacharya Ram Chandra Shukla Colony was developed under the Scheme of Sangthith Nagar Vikas Yojana launched by State Government; there is no development agency with the limitation of N.P.P., Deoria but Scheme of Master Plan was already established, therefore, road, streets, houses are/were being constructed according to Map sanctioned by Prescribed Authority working under/within the limitation of N.P.P., Deoria; there was a block area of 1800 square meter earmarked as Park No. 9 and for Nursery School. Aforesaid land has been encroached by respondent-6, illegally, since no resolution or allotment has been made by N.P.P., Deoria; land reserved for park cannot be allotted to any Society, unless and until prior approval from State Government is obtained; and, allotment was managed by respondent-7 i.e. Ex-Chairman. It is pointed out that a proposal for maintenance and beautification of park was submitted in September, 1999 seeking approval of estimate of Rs. 2,53,133/-. Prescribed Authority vide letter dated 03.01.2001 informed Chairman, N.P.P., Deoria that Manager of Shivam Sansthan, Deoria has submitted a possession memo and application for sanction of map dated 14.12.2000, hence comments were sought from Chairman, N.P.P., Deoria. It was informed by concerned Official that he has never gone to hand over possession of Park No. 9 and no such file was ever brought to his notice. Thereafter, enquiry was conducted and report was submitted showing encroachment on park land and school by respondents-6 and 7.
10. As the main contestants are respondents-6 and 7, we find that respondent-6 has filed a counter affidavit sworn by Sri Awadhesh Singh on 15.09.2002. It is said that Uttar Pradesh Organized Urban Development Scheme was convened under the Chairmanship of District Magistrate and in the meeting dated 14.02.1994, it was proposed to allot the land reserved for Nursery School, adjacent to land reserved for Park No. 9, which is vacant, and Balika Shiksha Niketan, Deoria's Manager has requested for allotment of said land, hence, proceeding be initiated for allotment of said land to an educational institution. Thereafter, advertisement was published on 16.02.1995 inviting applications for allotment of Nursery School land, Area 22.40 square meter, at lease rent of Rs. 354/- per square meter. Pursuant thereto, respondent-6 through Awadhesh Singh submitted an application dated 25.02.1995. Executive Officer, N.P.P., Deoria wrote a letter dated 24.04.1995 informing Awadhesh Singh, Manager of respondent-6 to make it clear whether he is ready to take aforesaid land for running a school and also ready to accept all conditions to be imposed by N.P.P., Deoria and lease rent would be Rs. 354/- per square meter. Respondent-6 accepted said conditions. Thereafter vide letter dated 25.12.1997, Executive Officer, N.P.P., Deoria allotted land reserved for Nursery School, adjacent to the land of Park No. 9 in the Scheme at the rate of Rs. 75/- per square meter and respondent-6 was directed to deposit Rs. 1,35,000/- within a week. In aforesaid letter, total area of land was shown as 40 X 45 i.e. 1900 square meter which include the land reserved for Park as well as that of Nursery School. Possession of entire land i.e. the land reserved for Nursery School and Park No. 9, was given to respondent-6 on 20.01.1998. Respondent-6 constructed a Nursery School and has started running the same wherein about 300 children are studying. Land of Park No. 9 is being used as playground of children. N.P.P., Deoria threatened respondent-6 to demolish construction raised by it, therefore, an injunction suit i.e. Original Suit No. 115 of 2001 was filed in the Court of Civil Judge, Junior Division, Deoria. An interim injunction has been passed by Civil Judge, Junior Division, Deoria on 03.02.2001 restraining N.P.P., Deoria from evicting respondent-6 from disputed land i.e. Park No. 9, total area 40 X 45 square meter and also not to allot the same to anyone else.
11. Respondent-7 has also filed a counter affidavit stating that present writ petition is not a Public Interest Litigation but is the result of political rivalry and to settle political score; land reserved for Nursery School is occupied by Nursery School running in the name of "Jagriti Smriti Shiksha Niketan" and park land is being used as a playground for students; allegations made against respondent-7 in the entirety are denied; allegations of relations, made in para-11 of writ petition, are also denied; proceeding for allotment of disputed land commenced on 16.12.1994 while respondent-7 entered the office of Chairman, N.P.P., Deoria on 02.12.1995; and, School is being run by Society and not by respondent-7.
12. Two rejoinder affidavits have been filed by petitioners in reply to counter affidavits of respondents-6 and 7 wherein basically the facts stated in the writ petition are reiterated.
13. When this writ petition was entertained on 24.04.2002, this Court expressed surprise as to how land of park could have been allotted for the purpose of running school and prima facie, allotment was collusive and mala fide. Accordingly, an interim order was passed to the following effect :
"Heard the learned counsel for the petitioners.
We are surprised to note that respondent no. 7 has got allotted the land of a nursery school and park no. 9 shown in the map, which is Annexure-II to the writ petition, in the name of Society, respondent no. 6. It is alleged that this order was passed on 25.12.1997 but surfaced in February, 2002. Prima facie, we are of the opinion that it is wholly illegal, collusive and malafide. Nobody can capture the land meant for the nursery school and park in this manner. Hence, prima facie we are of the opinion that respondent no. 7 has misused his office for this purpose.
Until further order, the operation of the impugned order dated 25.12.1997 shall remain stayed and we direct that the land in question shall not be allotted and no construction shall be made on the land in question. The police will ensure the compliance of this order."
(Emphasis Added)
14. The matter thereafter came up before Division Bench and on 12.05.2017 after noticing basic facts of writ petition and also the earlier order dated 24.04.2002, this Court directed District Magistrate to make an enquiry and submit report as to whether person who are shown to be Members of Society and whose names are mentioned in para-11 of writ petition are related to respondent-7, Dr. Shiv Hari Singh, Ex-Chairman of N.P.P., Deoria. The relevant paras of order dated 12.05.2017 read as under :
"Though, it has been stated in paragraph-10 of the counter affidavit filed by respondent no.7 that the land reserved for Nursery School and Park has been occupied in the name of Jagariti Smriti Shiksha Niketan and the children are using the Park but it has been stated by learned counsel appearing for respondent no.7 that in this area of 1800 square meters of land situated in Block B neither a school has been constructed nor the children are using the Park. It has also been stated that the Members of the Society were not related to Ex-Chairman of the Nagar Palika Parishad.
In order to decide the petition, it has become necessary to ascertain whether any constructions have been raised by the Society or any other person on this area of 1800 square meters and whether the Members of the Society are related to Ex-Chairman of the Nagar Palika Parishad.
We, therefore, direct the District Magistrate, Deoria to submit a report to this Court within a period of 10 days from today as to whether any area of this 1800 square meters of land mentioned in the map in Block B reserved for Nursery School and Park has been encroached- upon or utilized by the Society or any other person. The District Magistrate, Deoria shall also submit a report as to whether the persons, who are shown to be Members of the Society and whose names are contained in paragraph-11 of the petition are related to Dr. Shiv Hari Sigh, Ex-Chairman of Nagar Palika Parishad.
Learned Standing Counsel shall intimate this order to the District Magistrate, Deoria with the copy of map enclosed at page no.40 of the petition as also the Memorandum of Association of the Society which would indicate the names of the Members of the Society.
List on 23 May 2017."
15. Respondent-7 filed a supplementary counter affidavit sworn on 22.05.2017 stating that on 16.12.1994, a meeting of U.P. Organized Development Scheme was held under the Chairmanship of District Magistrate, Deoria and vide Resolution No. 8, applications were invited in respect of plot adjacent to Park No. 9, vacant for Nursery School. An advertisement was published on 16.02.1995 and pursuant thereto, two bodies applied, namely, S.S.S. Society (respondent-6) and Balika Shiksha Niketan. However, only S.S.S. Society replied to letter of Executive Officer accepting terms and conditions of N.P.P., Deoria as noted in the Minutes of Meeting dated 14.07.1997 of Nagrik Samanovaya Evam Anushrawan Samiti. Relationship with persons named in para-11 of writ petition is denied in para-9 of supplementary counter affidavit and it is said that plot for Nursery School and Park No.9 is still vacant and no construction or building has been made thereon till date. It is said that there was some error in the earlier counter affidavit filed by respondent-7 and some part of para-10 was wrong.
16. For quite some time, no report was submitted by District Magistrate, hence, this Court passed following order on 12.10.2017:
"1. District Magistrate, Deoria was directed to submit report vide this Court's order dated 12.05.2017 but no such report has been submitted though stop order was passed on 10.07.2017 and thereafter on 21.09.2017 time was granted to seek instructions and file counter affidavit. Nothing has been done so far.
2. Let District Magistrate, Deoria appear in person before this Court on 31.10.2017 to explain as to why he has not complied with this Court's order dated 12.05.2017 and appropriate action be not taken against him for deliberate and intentional disobedience of this Court's order, in accordance with provisions of relevant statute.
3. List on 31.1o.2017.
4. A copy of this order shall be made available to learned Standing Counsel for communication to concerned respondent and compliance."
17. A counter affidavit sworn by Sri Sujeet Kumar, District Magistrate, Deoria was filed on behalf of respondents-1, 2 and 3. He submitted that earlier an enquiry was conducted by Naib Tehsildar on 05.07.2017 but it was not a detailed one, hence, fresh steps were taken. Copy of Enquiry Report dated 05.07.2017 submitted by Naib Tehsildar, Deoria has been placed on record as Annexure-CA-1. Chief Revenue Officer, Deoria vide order dated 24.10.2017 directed Sub-Divisional Magistrate to make an enquiry and submit report whether 1800 square meter land has been encroached and used by Society or anyone else. He also required Executive Officer, N.P.P., Deoria vide letter dated 24.10.2017 to submit his report on following aspects :
^^1- D;k uxj ikfydk ifj"kn dks ikdZ dh Hkwfe ds vkoaVu dk vf/kdkj izkIr gS vFkok ugha] ;fn gS rks fdl izkfo/kku ds vUrxZr\ 2- mijksDr vkoaVu dh izfdz;k ikfydk }kjk tc dh x;h gS rks ml le; dk;Zjr vf/k'kklh vf/kdkjh dk ukeA 3- blh izdkj rRle; ikfydk esa vkbZ0Mh0,l0,e0Vh0 dk dk;Z ns[k jgs fyfid] tks mijksDr ljdkjh vfHkys[kksa dks xk;c djus ds nks"kh gSa] dks vkt gh fuyafcr djrs gq, vkns'k dh izfr vkt gh miyC/k djkosaA** "1. Whether Nagar Palika Parishad is empowered to allot the land of park or not? If so, under what provisions?
2. Name of the Executive Officer posted at the time of aforesaid allotment procedure by the Palika.
3. Placing under suspension the clerk, then looking after the work of I.D.S M.T. in the Palika who is guilty for the aforesaid government records having gone missing, a copy of order be made available today itself."
(English Translation by Court)
18. Executive Officer, N.P.P., Deoria and Naib Tehsildar submitted report dated 25.10.2017 which was forwarded to Chief Revenue Officer by Deputy Collector Sadar, Deoria vide letter dated 25.10.2017 verifying that land of Nursery School and Park is in possession of Sri Shiv Hari Singh who has raised a boundary wall and planted trees thereon. Said report reads as under :
^^vkids dk;kZy; i=kad 1432@,y0ch0lh0&2017 fnukad 24-10-2017 ds vuqikyu esa LFkyh; tkWap dh x;hA tkWap ds nkSjku ik;k x;k fd xzke nsofj;k [kkl ¼vkpk;Z jkepUnz 'kqDy dkyksuh½ rglhy o ftyk nsofj;k esa fLFkr ikdZ uEcj 9 {ks=Qy 1800 oxZehVj tks ekufp= esa Cykd&ch esa ulZjh Ldwy o ikdZ ds ;i esa iznf'kZr gS] ij pkjksa rjQ ls iDdh bZV dh ckm.Mªh pyk;h x;h gS rFkk pkjksa rjQ xsV yxk gS] ftles rkyk yxk gqvk gSA ckm.Mªh oky ds vUnj ulZjh Ldwy o ikdZ dh Hkwfe ij lkxkSu vkfn ds isM+ yxs gSa ,oa >kM&>a[kkM Hkh mlesa mxs gq, gSaA bl ckm.Mªh cky ds pkjksa rjQ lM+d cuh gqbZ gS ftlds fdukjs&fdukjs iDdh edku ds :i esa vkcknh O;ofLFkr gSA ekSds ij mifLFkr Jh fot; flag iq= Lo0 jkecyh flag larks"k iq= Lo0 lqnkek] vuwi oekZ iq= Jh vkse izdk'k oekZ] vk'kqrks"k flag iq= Lo0 jkecyh flag] yYyu izlkn oekZ iq= jketh oekZ us c;ku fn;k fd mDr ulZjh Ldwy ,oa ikdZ dh ckm.Mªh cky dk fuekZ.k Jh f'kogfj flag iwoZ v/;{k] uxjikfydk ifj"kn nsofj;k }kjk cukdj xsV esa rkyk yxk;k x;k gSA mDr ulZjh Ldwy dh Hkwfe ,oa ikdZ esa isM+ Hkh mUgha ds }kjk yxk;s x;s gSaA eqgYys ds fdlh vU; O;fDr }kjk bl ikdZ dk mi;ksx ugha fd;k tkrk gSA c;ku dh ewy izfr ,oa Lfky dk Nk;k fp= ¼QksVk½ layXu gSA mijksDr c;ku ls iq"V gksrk gS fd mDRk ulZjh Ldwy ,oa ikdZ dh Hkwfe ij Hkh f'kogfj flag }kjk ckm.Mªh oky dk fuekZ.k dj isM yxk;k x;k gS vkSj mudk dCtk gSA vk[;k lsok esa vko';d dk;Zokgh gsrq izsf"kr gSA** "In compliance with your office letter no 1432/L.B.C.-2017 dated 24.10.2017, on-the-spot inspection was conducted. During inspection it was found that all around park no 9, area 1800 square meter, located at Village Deoria Khas (Acharya Ram Chandra Shukla Colony), Tehsil and District Deoria, which is shown in the map as Nursery School and Park in Block B, a brick wall has been erected with gates installed on all four sides with locks. Within boundary wall, on the land of nursery school and park, Sangwan trees, etc are standing and shrubs have overgrown. All around this boundary wall there runs a road, along which there exists human settlement with concrete houses. Sh Vijay Singh s/o Late Rambali Singh, Santosh s/o Late Sudama, Anup Verma s/o Sh Om Prakash Verma, Ashutosh Singh s/o Late Rambali Singh and Lallan Prasad Verma s/o Ramji Verma, present on the spot have stated that Sh Shivhari Singh, Ex-Chairman, Nagar Palika Parishad, Deoria has got the aforesaid nursery school and boundary wall of the park constructed and the gates locked. It is nobody other than him who has got the trees planted on the aforesaid school and park land. This park is not used by any other person. Original copy of the statement and photograph of the seal are annexed.
It is substantiated from the aforesaid statement that Sh Shivhari Singh has got the boundary wall erected and the trees planted on the aforesaid school and park land; which is in his possession. The report is submitted for necessary action."
(Emphasis Added) (English Translation by Court)
19. Photographs of aforesaid land are also placed on record along with said affidavit. This affidavit and entire matter came up before Court on 31.10.2017 and after hearing parties, Court passed following order :-
"In compliance of the order, Mr. Sujeet Kumar, the District Magistrate, Deoria appeared in person.
Heard learned counsel for the parties.
It was informed that counter-affidavit was filed within time. In compliance of the order, the enquiry was got conducted and as per joint report submitted by Naib Tehsildar, Bakhara-Deoria and Executive Officer, Nagar Palika Parishad, Deoria dated 25.10.2017, the land of Park No. 9 has wrongly been allotted to a private person. The boundary was got constructed and the door was found locked. Trees have also been planted there. It was found that the boundary was got constructed by respondent no. 7 Dr. Shiv Hari Singh, Former Chairman, Nagar Palika Parishad, Deoria.
It was further informed by counsel for the Nagar Palika Parishad that so-called registered society in the name of Shivam Seva Sansthan belongs to Ex-Chairman, Nagar Palika Parishad, Deoria Dr. Shiv Hari Singh and in fact he has encroached the land of park no. 9 in illegal manner and managed to get an allotment order in favour of so-called registered society for running a school. While the allotment of the land was made in favour of the said registered society, no proper procedure was adopted. No resolution of the Nagar Palika Parishad was passed specially for the allotment of land of park no. 9 situated at Acharya Ram Chandra Shukla Colony, Deoria.
According to counsel for the respondent no. 7, the land in question was allotted by the Nagar Palika Parishad for opening school and the portion of the land of park was allotted to be used by children of the school, hence, there was no illegality in the allotment of the land in favour of the society. It was not used as private land by respondent no. 7.
In view of the enquiry report and information given by the District Magistrate, Deoria as well as counsel for the Nagar Palika Parishad, Deoria, as far as allotment of land of park no. 9 situated at Acharya Ram Chandra Shukla Colony, Deoria is concerned, the alleged allotment order was illegal, without any resolution of the Nagar Palika Parishad and it was unauthorised use and occupation by the alleged society which belongs to respondent no. 7 Ex-Chairman, Nagar Palika Parishad, Deoria. Hence, in view of the fact and in the interest of justice, the part of the impugned order dated 25.12.1997 alleged to have been passed by Nagar Palika Parishad, Deoria for allotment of the said land of park no. 9, is hereby quashed.
Now, the District Magistrate, Deoria and the authorities concerned are free to take appropriate step to get the encroachment cleared and get it vacated from illegal possession. The report has to be submitted by the District Magistrate, Deoria as well as Executive Officer, Nagar Palika Parishad, Deoria by the next date to the effect that whether land of the park no. 9 area 1800 square meter situated at Acharya Ram Chandra Shukla Colony, Deoria, has been got vacated? The Nagar Palika Parishad, Deoria is also expected to take appropriate step for development of the 'park'.
A further report has to be submitted by the District Magistrate, Deoria in respect of the land allotted for school that whether the same was reserved for a Government school or a school run by Nagar Palika Parishad, Deoria or even the same can be allotted for running a private school specially when there was a sanction to open the Govt. school.
List on 15.11.2017, for further report, in compliance of the order. However, if the report is submitted by the next date in compliance of the order, the District Magistrate, Deoria is not required to appear in person."(Emphasis Added)
20. An affidavit was filed by Sri Sujeet Kumar, District Magistrate, Deoria stating that on 03.11.2017, order was issued nominating Sub-Divisional Magistrate Sadar, Deoria, Circle Officer Sadar, Deoria and Executive Officer, N.P.P., Deoria for demolition of unauthorized construction after taking photographs of site in question and to submit a detailed report after taking possession of Park No. 9 and land adjacent thereto, measuring 1800 square meter. Further Executive Officer, Deoria was also directed to submit work plan and a proposal for development and beautification of Park No. 9. Demolition activities were undertaken and report, videography and photographs were submitted by concerned officers nominated by District Magistrate, Deoria. Estimate has also been submitted by Executive Officer, Deoria for beautification. However, in paras-8 and 9, it is said that report was submitted by a Committee headed by Chief Revenue Officer, Deoria stating that land of park was neither reserved for Government School nor it was run by N.P.P., Deoria. He also submitted that park land cannot be allotted to any private school for its management and further that on the spot, no institution in the name of S.S.S. Society was found in existence.
21. A perusal of report shows that not on disputed land but in front thereof, on the other side of the road, a School, namely, Jagriti Shiksha Sansthan was running imparting education from Class I to VIII and it is recognized by Basic Shiksha Parishad, Deoria. There is another School about 50 meters from the Park, namely, Ishara Public School and it is recognized upto Junior High School by Basic Education Board. Court found certain aspects contrary to their stand and, therefore, required a further affidavit to be filed by District Magistrate, Deoria.
22. Again, Sri Sujeet Kumar, District Magistrate, Deoria and Sri Amit Kumar Singh, Executive Officer, N.P.P., Deoria filed their separate affidavits dated 04.12.2017 and 07.12.2017, respectively. They stated that record pertaining to allotment of disputed land of park to school is missing and it appears that same has been taken away by the then Chairperson i.e. respondent-7 and against him, a First Information Report has been lodged in Kotwali, Deoria on 29.11.2017.
23. Earlier a stand was taken that record was available and hence, looking to contradictory stand, this Court required District Magistrate, Deoria and Executive Officer to file further affidavits. They filed affidavits stating certain action taken by them against Officials responsible for maintenance of record.
24. The above facts are self-evident to show how a person who is elevated to a high-post of a public representative can manage a public land for unauthorized possession and his personal use in an illegal manner. At least this is not in dispute that disputed land was reserved for running Nursery School and for a park i.e. Park No. 9. Respondents-6 and 7 earlier had taken a stand that a Nursery School has already been constructed on the disputed land and park land is being used as a playground of children but in subsequent affidavits filed by respondent-7, he stated that land is vacant and no school is running thereon. This clearly shows that a false affidavit was filed by respondent-7 earlier so as to take advantage of unauthorized and illegal possession of disputed land but when he was confronted by subsequent orders passed by this Court taking a serious view in the matter, he immediately changed his stand and submitted another affidavit stating that in earlier affidavit, wrong facts were mentioned. The report submitted by District Magistrate, Deoria and Executive Officer, Deoria along with their affidavits also show that at the time of demolition, they found boundary wall on the disputed land and plantation of large number of trees. There was a gate also which was locked and all this construction was demolished. This land was found in actual possession of respondent-7.
25. We really fail to understand, why despite having found illegal and unauthorized possession of respondent-7 over land in dispute by respondents- 3 and 4, no demand of rent for unauthorized and illegal possession of land in dispute was raised from respondent-7 and no penal action was taken against him for unauthorized possession/ encroachment on public land.
26. Learned counsel for respondents did not dispute that land reserved for park cannot be allocated for any other use except that it should be maintained as a park and it is also stated that presently, aforesaid land has been freed from unauthorized and illegal possession of respondent-7.
27. We may also notice at this stage that in the Report submitted by a Committee headed by Chief Revenue Officer, Deoria, no Institution, like, Shivam Shiksha Sansthan was found running any Educational Institution on the disputed land thus even the stand of respondent-6 is false and shows a clear attempt of misrepresentation before this Court and filing of false affidavits also.
28. In these circumstances, we allow this writ petition, quash impugned order dated 25.12.1997 and further issue following directions:
(i) Respondents-Competent Authority shall take necessary steps for realization of penal rent in respect of land in dispute from respondent-7 for illegal and unauthorized possession of disputed land for entire period till demolition took place and possession of land was restored to respondents- 3 and 4.
(ii) Awadhesh Kumar Singh, alleged Manager of S.S.S., Society and Respondent-7 shall show cause why he/they may not be punished for filing false affidavits before this Court. Further this action of their amounts to criminal contempt of Court hence, why they should not be punished for committing criminal contempt of this Court.
(iii) Respondents-Authorities shall ensure maintenance of land earmarked for park i.e. Park No. 9 and other land which is earmarked as Park and shall maintain the same properly for use by general public which is the purpose for which land is reserved for park.
(iv) We appreciate the gesture of petitioners in bringing their case to this Court, otherwise, public land, in collusion with authorities, would have remained usurped by scrupulous persons like, respondents-6 and 7 and but for the attempt made by petitioners, disputed land may not have been saved. Therefore, petitioners are also entitled to cost which we quantify to Rs. 25,000/- against respondents-6 and 7 who shall pay the same to petitioners within one month failing which on an application made by petitioners to Registrar General, he shall issue a certificate and thereupon Collector, Deoria shall recover the said amount as arrears of land revenue and pay to petitioners.
(v) In this case, since conduct of Respondent-N.P.P. Deoria has also not been fair, therefore, in our view, they are also entitled to be saddled with burden of cost and we impose separately, cost of Rs. 15,000/- upon N.P.P., Deoria who shall pay the same to petitioners within one month.
(vi) The issue of unauthorized possession/encroachment on public land and that land earmarked for park at Deoria has come before this Court by a public spirited person like petitioners but we apprehend that in similar fashion, a large number of parks in the State must be facing similar problem and on account of collusion or apathy shown by responsible persons, those parks must be continuing under encroachment or illegal possession of individual encroachers. We, therefore, direct Principal Secretary/Secretary, Urban Development and also Secretary, Department of Forest, Environment Zoological Garden and Horticulture to find out, how many parks in different cities in the State of U.P. are earmarked and whether there is any encroachment thereon and if so, to take immediate remedial steps and get those Parks free from such encroachment. They shall also ensure maintenance of such parks in an appropriate manner so that public in general may have actual benefit of those parks for which the same are meant.
29. A compliance report shall be submitted by both the aforesaid authorities before Court within 15 days after expiry of six months from today. Registrar General shall ensure to serve a copy of this judgment to both officials forthwith. Only for perusal of compliance report this matter shall be listed on expiry of above period, but for all other purposes it stands disposed of in the manners as above.
Order Date :- 21.02.2019 Siddhant Sahu