Dismissed

Sukhrani v. Brijendra Kumar Rai, Tehsildar

Allahabad HC9 May 2019CAPL/1954/2019

Case brief

AI extract

What is this about?

In a contempt application concerning the non-compliance of an order to enquire into alleged illegal encroachment on public land, the court recorded instructions from the Tehsildar showing partial compliance and consequential relief, leading to the dismissal of the application without further punishment.

What did the court decide?

The contempt application was disposed of on the record of instructions showing compliance with the previous orders.

Sukhrani Vs Brijendra Kumar Rai, Tehsildar — Public Procurement and Tenders | Allahabad HC (2019)

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Court No. - 10

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Case :- CONTEMPT APPLICATION (CIVIL) No. - 1954 of 2019 Applicant :- Sukhrani Opposite Party :- Brijendra Kumar Rai, Tehsildar Counsel for Applicant :- Syed Mohammad Abbas Abdy,Bal Mukund Kushwaha

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard learned counsel for the applicant.

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By order dated 30.3.2018 passed in Public Interest Litigation (PIL) No.3177 of 2018 filed by the applicant, the Court directed as under:

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"The petitioner in the writ petition is seeking a direction to the respondents to remove the illegal encroachment from plot no. 450 area 0.6280 hectare situated in village Sarai Jaja @ Jhaliha, Pargana Sikandra, Tehsil Phoolpur, District Allahabad which according to her is recorded as Banjar in the revenue record. The relevant extract of the revenue record has been filed as Annexure-1 to the writ petition.

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Reliance has been placed on a Division Bench judgment of this Court in Public Interest Litigation Petition No.63380 of 2012 (Prem Singh Vs. State of U.P. and Others) wherein the Division Bench has directed that if the complaints regarding unauthorised occupation over the public ponds or other similar public lands are received by the District Magistrate of a District, he should take all the required actions in view of the law already settled by the Supreme Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others reported in (2011) 11 SCC 396. Paragraphs 13, 15, 16, 18, 23 and 24 of Jagpal Singh (supra) read as under:

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"13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. 14........

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In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores.

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In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of

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village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

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17........

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The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

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Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

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Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports to this Court from time to time."

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No useful purpose would be served in keeping the petition pending.

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This writ petition is, therefore, disposed of with a direction to the respondent no. 4-Tehsildar, Tehsil Phoolpur, District Allahabad to enquire into the matter and take appropriate action keeping in mind the judgment of the Supreme Court in the case of Jagpal Singh (supra) as well as the judgment of the Division Bench of this Court passed in Public Interest Litigation Petition No.63380 of 2012 (Prem Singh Vs. State of U.P. and Others) within a period of two months

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from the date of receipt of a certified copy of this order in his office. It is made clear that the Court has not adjudicated the claim of the petitioner on merits."

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When the aforesaid order was not complied with, the applicant again approached this Court by preferring Contempt Application (Civil) No.4022 of 2018 and the same was disposed of with following observations:-

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"By the order dated 30.03.2018 passed in Public Interest Litigation (PIL) No. 3177 of 2018 filed by the applicant, a direction was issued to the opposite party to enquire into the allegation of illegal encroachment over public land within a period of two months from the date of receipt of a certified copy of the order in his office.

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Learned counsel for the applicant submitted that certified copy of the order of the Writ Court was sent to the opposite party by registered post on 04.04.2018, but no decision has been taken in the matter so far.

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This Court is of the opinion that before inaction on part of the opposite party in considering the claim of the applicant is treated as wilful disobedience of the order of the Writ Court, one more opportunity be granted to him to ensure compliance of the said order.

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Accordingly, the instant contempt application is disposed of with liberty to the applicant to file a certified copy of this order alongwith fresh representation before the opposite party and in which event, he shall ensure that decision in due compliance of the direction issued by this Court in the aforesaid PIL is taken within next eight weeks. In case the decision is yet not taken, as directed herein, it shall be open to the applicant to initiate fresh contempt proceedings against the opposite party."

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Learned counsel for the applicant submits that certified copy of the aforesaid order was submitted for compliance before the opposite party but the opposite party has wilfully not complied with the order and, thus, has committed civil contempt liable for punishment under Section 12 of the Contempt of Courts Act, 1971.

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The matter was taken up on 9.4.2019 and on the said date the Court had proceeded to pass following order:-

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"Learned counsel for the applicant will serve a copy of the application on Shri B.B. Pandey, learned Chief Standing Counsel appearing on behalf of opposite party forthwith.

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Shri B.B. Pandey, learned Chief Standing Counsel prays for and is accorded three weeks' time to seek instructions in the matter.

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Put up this matter as fresh on 08.5.2019.

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In case the order dated 30.3.2018 passed in PIL No.3177 of 2018 as well as the order dated 14.8.2018 passed in Contempt Application (Civil) No.4022 of 2018 filed by the applicant are not complied with

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before the next date fixed in the Court, the Court has no option except to summon the officer concerned for punishment for wilful disobedience of the orders of this Court."

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On the matter being taken up today, Shri K.R. Singh, learned Additional Chief Standing Counsel apprises to the Court that in compliance of the order of this Court dated 9.4.2019 he has received the instructions dated 26.4.2019 sent by the Tehsildar, Phoolpur, District Allahabad wherein it has been stated that one Dinesh Pratap Singh constructed his house on his ancestral property and some portion of his house falls in Arazi No.450, which is recorded as Banjar Land in the revenue record. The adjacent Arazi No.451 belongs to Dinesh Pratap Singh. He moved an application for exchange of 3 Biswa land from Arazi No.451. In pursuance of the order dated 5.11.2018 passed by the Sub Divisional Magistrate, Phoolpur, Allahabad as well as the order dated 5.1.2019 passed by the Tehsildar, Phoolpur, Allahabad, the name of Banjar from Arazi No.450 area 0.034 hectares has been cancelled and name of Dinesh Pratap Singh has been entered and in the same manner the Banjar land has been recorded in the revenue record in Arazi No.451 area 0.034 hectares. The instruction is taken on record.

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Consequently nothing further survives and the contempt application is disposed of.

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Order Date :- 9.5.2019 RKP

Sukhrani v. Brijendra Kumar Rai, Tehsildar

Case brief

What is this about?

What did the court decide?

Sukhrani v. Brijendra Kumar Rai, Tehsildar

Case brief

What is this about?

What did the court decide?

What the court decided

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