Allahabad High Court
Nagendra Kumar Gupta And 3 Others vs State Of U.P. And 4 Others on 18 November, 2019
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- WRIT - C No. - 35818 of 2019 Petitioner :- Nagendra Kumar Gupta And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ashok Kumar Pandey Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay Hon'ble Mrs. Sangeeta Chandra,J.
Heard learned counsel for the petitioners, learned counsel appearing for the Gaon Sabha and learned Standing Counsel for the State respondents.
The petitioners are aggrieved by the order dated 21.10.2019 passed by the Sub Divisional Magistrate, Bairiya, District-Ballia and the endorsement of the District Magistrate, Ballia dated 16.08.2019, by which a direction has been issued to the Sub Divisional Magistrate Bairiya, Ballia to use the JCB for removal of encroachment on public utility land recorded in the name of Gaon Sabha.
It has been submitted by learned counsel for the petitioners that the petitioners' ancestors were in possession of plot no. 888 old no. 999 since before zamindari abolition should have built the house thereon. The said land was purchased by the father of the petitioners through sale deed dated 15.02.1963 from then zamindar. Initially the Tehsildar Bairiya has issued notices under Section 115 Rules of 1952 that the petitioners are in illegal occupation. The petitioner submitted a reply and the Tehsildar made on the spot inspection and by an order dated 02.06.2017 cancelled the notices under Rules 115-C of the said rules by making an observation that the petitioners' ancestors have in possession over the plot in question, since before zamindari abolition.
The order was passed on 02.06.2017. Later on, an another notice was issued to the petitioners and on the report of the Lekhpal that the petitioners construction on the plot in question has been in question for the past 50 years, the Sub Divisional Magistrate Bairiya, Ballia had also concluded the proceedings on 02.03.2019.
Against the order dated 02.03.2019, one Shri Ram Awadh filed an appeal before the District Magistrate, Ballia under Section 67(5) of the U.P. Revenue Code, 2006. In appeal no order has been passed by the District Magistrate, Ballia. Without disclosing the fact of pending appeal another application has been moved before the District Magistrate, Ballia by Smt. Nirmala on which the District Magistrate on 16.08.2019 has directed the Sub Divisional Magistrate to use JCB to remove alleged illegal constructin.
In pursuance of such order/endorsement made on the application by the District Magistrate, the Sub Divisional Magistrate has passed the order dated 21.10.2017 directing the Gram Pradhan of the village concerned, to use JCB for removal of alleged encroachment.
It has been submitted by learned counsel for the petitioners that before the endorsement was made on application by the District Magistrate or the order dated 21.10.2019 was passed by the Sub Divisional Magistrate, no notices were issued to the petitioners and they were not heard.
The learned counsel appearing for the Gaon Sabha on the other hand states that once the land recorded as pond, rasta and banjar, there cannot be Bhoomidhari rights created even by adverse possession and there can be no adverse possession of public utility land belonging to the Gaon Sabha.
The learned counsel appearing for the State respondents has referred to a copy of the field book i.e. Khasra which shows that plot no. 888 as Rachwar or rasta. The field book, a copy of which has been filed as Annexure No. 10 to the writ petition clearly shows that the petitioners have encroached at least 0.042 hectares of such land.
It is specific case of the petitioners that they have not been given any notice under Section 67 of the said Act.
The order impugned is quashed with liberty to the State respondents to initiate and conclude action under Section 67 of the U.P. Revenue Code, as expeditiously as possible for a period of three months or till the order is passed under Section 67 of the said Act, by the competent authority, whichever, is earlier, the petitioners construction shall not be demolished.
Order Date :- 18.11.2019 sweta