Allahabad High Court
Asheesh Kumar vs State Of U.P. And 4 Others on 13 November 2019
Bench: Pradeep Kumar Baghel, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 21
Case:- PUBLIC INTEREST LITIGATION
(PIL) No. - 77 of 2019
Petitioner:- Asheesh Kumar
Respondent:- State Of U.P. And 4
Others
Counsel for Petitioner:- Ajay Sengar
Counsel for Respondent :- C.S.C.
Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Piyush Agrawal,J.
The petitioner has preferred this
P.I.L. for non-compliance of the communications dated 26.10.2017 &
16.11.2017 made by Executive Engineer-respondent no.5 addressing to District
Magistrate-respondent no.3 whereby a request has been made to provide adequate
aid for removal of encroachments made on pond land of Gata No. 113 and 115,
Mohalla- Baghakatra, Kasba-Auriaya, District Auraiya.
We had granted time to learned Standing
Counsel to seek instructions in the matter. He has passed on a copy of
instructions dated 9.4.2019 to us. In the instructions, it has been admitted
that 2.44 acre land of Gata No. 113 is recorded as pond in revenue papers. Over
pond land, Mahesh and Naresh sons of Nawab Singh and Govind son of Kamal Singh
have constructed two shops and permanent structures. Further on pond land of
Gata No. 115, Sri Narayan Guest House has also been raised unauthorisedly. It
has further been mentioned that notices have been issued to encroachers for
removal of unauthorised constructions made over pond land. It has also been
mentioned that in respect of Plot No. 115 a Civil Suit No.133 of 2017,
Anuruddha Kumar and others Vs. State of U.P. and others, has been filed in
which no interim order has been granted to the plaintiff.
We have heard learned counsel for the
petitioner, learned Standing Counsel and perused the material on record
including the instructions passed on us, which has been taken as part of
record.
From the materials on record, we find
that the Nagar Palika Parishad, Auraiya has issued notices to the persons who
are illegally in occupation of the pond land but no effective steps have been
taken for the removal of the encroachment. It is also mentioned in the writ
petition that one of the person who has encroached the land of the pond has
filed a Civil Suit but no interim order has been passed in the said Civil Suit .
The Supreme Court in the case of Hinch
Lal Tiwari Vs. Kamla Devi and others, (2001) 6 SCC 496 has held that all ponds
should be restored to their original position. The said judgment has been
consistently followed in the case of Jagpal Singh and others Vs. State of
Punjab and others, AIR 2011 SC 1123, and by a Division Bench of this Court in
the case of Support India Welfare Society Vs. State of U.P. and 7 others in
Public Interest Litigation (PIL) No. 1474 of 2019. The direction issued by this
Court in the case of Support India Welfare Society (supra) to the Principal
Secretary, Revenue, Government of Uttar Pradesh (supra) reads as under:-
"(i) The Chief Secretary of the
State of Uttar Pradesh shall constitute a Committee in consultation with the
Chairman, Board of Revenue, which shall monitor the compliance of the
judgements of the Supreme Court and this Court. The said Committee shall also
invite Justice Ram Surat Ram (Maurya) (Former Judge of this Court) as a special
invitee in its meeting. Justice Maurya shall be paid Rs. 10,000/- (Rupees Ten
Thousand) remuneration for attending each such meeting in addition to his
conveyance and other charges;
(ii) the Collectors of each District of
the State shall entrust the the Additional District Magistrate (Finance &
Revenue) to make a list of ponds which are recorded in the revenue records in
the year 1951-52. He shall also prepare a list of the ponds which are under the
encroachment or in respect of which the lease has been granted;
(iii) we charge the Additional District
Magistrates (Finance & Revenue) of each District of the State to comply
these directions;
(iv) the Collectors shall proceed to
cancel the lease of the ponds and restore the ponds in accordance with law and
directions issued by the Supreme Court. The Collectors shall send a progress
report in every six month to the Committee constituted by the Chief Secretary;
(v) the Committee shall hold its
meeting, at least, after every three to four months and monitor the progress of
restoration of ponds in the State. In case any legal impediment arises, the
Collector shall apprise the monitoring Committee, which shall issue appropriate
guidance to the Collector concerned in accordance with law; and
(vi) the other Committees, which were
constituted earlier at State level and District level, shall also send their
report to the Monitoring Committee.
We make it clear that any negligence in
compliance of the orders of the Supreme Court and this order shall be treated
as a negligence of duty and appropriate action shall be taken against the
concerned Officer(s) under the relevant Service Rules."
In view of the admitted fact that there
is encroachment at the pond land we dispose of this writ petition with the
direction upon District Magistrate Auriaya to take appropriate action strictly
as per aforesaid settled legal position enunciated by the Hon'ble Supreme Court
as well as this Court and fix the responsibility of the authority concerned for
compliance of the said judgement.
We leave it open to the petitioner to
file a fresh representation along with certified copy of the judgement within
three weeks.
Office shall furnish xerox copy of this
order without payment of usual charges to Mr. Satyendra Pratap Singh, learned
Standing Counsel for communication of this order to District Magistrate.
Order Date :- 13.11.2019 SY
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