In a writ petition seeking protection against demolition of a house pending a suit for temporary injunction, the High Court held that the petitioner failed to reply to the encroachment notice or challenge it in the suit and thus refused to exercise discretionary jurisdiction under Article 226.
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Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 2131 of 2022
Petitioner :- Sumitra Devi Respondent :- Sub-Divisinal Magistrate Colonelganj Distt. Gonda And Others Counsel for Petitioner :- Pankaj Verma Counsel for Respondent :- C.S.C.
Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Pankaj Verma, the learned counsel for the petitioner and Sri Gyandeep Singh, learned Standing Counsel for the State-respondents.
2. By means of the instant petition under Article 227 of the Constitution of India, the petitioner has sought a direction to the opposite parties not to demolish the house/constructions of the petitioner standing over Gata No. 36 measuring 0.77 hectares situate in Village Bansgaon, Pargana Paharpur, TehsilColonelganj, District Gonda till the disposal of an application under Order XXXIX Rule 1 and 2 read with Section 151 Code of Civil Procedure filed in Regular Suit No. 1177 of 2022 titled " Smt. Sumita Devi and another Vs. Executive Engineer Saryu Nahar Khand-I Gonda and others " pending in the Court of Civil Judge (Junior Division), Gonda.
3. Briefly stated, the petitioner's case is that the petitioner alongwith one Shiv Gopal son of Bhairav Tiwari had purchased land bearing Gata No. 36 measuring 0.77 hectares situate in Village Bansgaon, Pargana Paharpur, Tehsil-Colonelganj, District Gonda through sale deed dated 30.12.2006 and pursuant there to, the name of the purchasers have been mutated in the revenue record. The petitioner is in possession over the aforesaid land.
4. On 26.04.2022, the Jiledar, Saryu Nahar Khand-I Gonda has
issued notices under Sections 45, 441, 442 of IPC and Sections 70/04 of The Northern India Canal And Drainage Act, 1873 and under Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 alleging that the petitioner has raised illegal constructions on Government land belonging to Saryu Nahar Khand-I Gonda.
5 . The notice directs the petitioner to remove the alleged illegal encroachment failing which, a case will be registered against her under the aforesaid provisions and the cost of proceedings etc. will be recovered from the petitioner.
6 . After receipt of the aforesaid notice, the petitioner has filed a Regular Suit No. 1177 of 2022 in the Court of Civil Judge (Junior Division), Gonda claiming permanent injunction against the authorities concerned restraining them from interfering in the petitioner's possession in respect of the aforesaid land belonging to the petitioner.
7 . On 13.05.2022, the learned Civil Judge (Junior Division) has passed an order stating that it will not be proper to pass any order of temporary injunction in an ex-parte manner and accordingly notice has been ordered to be issued to the defendants in the suit. Learned Civil Judge has also issued a Commission for local inspection of the property in suit. The petitioner has filed the present petition seeking protection of her possession over the land in dispute till disposal of the application for temporary injunction filed in the suit.
8. The petitioner has neither sent any reply to the notice dated 26.04.2022 nor has she assailed the validity of the notice either in the suit or before this Court.
9 . Apparently, the notice has been issued alleging
encroachment made by the petitioner on a Government land and it makes no reference to the land bearing Gata No. 36 measuring 0.77 hectares which is said to have been purchased by the petitioner. In case the petitioner is in possession over the land which had been purchased and which is entered in her name in the revenue record only, it was open to the petitioner to give a reply to the notice placing the correct facts which option has not been exercised by the petitioner.
10 . In case, the allegations made in the notice are correct and the petitioner has in fact made any encroachment on the Government land, the authorities are within their rights to initiate appropriate proceedings for re-claiming the Government land in accordance with law. The petitioner will, obviously have a right to contest and place her version in case any such proceedings are initiated.
11 . In view of the aforesaid discussions, I do not find it to be a fit case warranting interference by this Court in exercise of its discretionary petition jurisdiction under Article 227 of the Constitution of India.
12 . The petition is accordingly, dismissed .
Order Date :- 15.6.2022 Jaswant
Digitally signed by JASWANT KUMAR Date: 2022.06.16 13:04:59 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether this Court should interfere in exercise of discretionary jurisdiction under Article 226 to prevent demolition of the petitioner's house pending disposal of a suit for temporary injunction.
Whether proper reply was placed before the notice issuing authorities regarding encroachment allegations.
3 provisions across 2 enactments
Sumitra Devi
Sub-Divisional Magistrate Colonelganj, District Gonda
Others
Subhash Vidyarthi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
