Disposed

Jaiprakash v. State of U.P. and 3 Others

Allahabad HC30 Jan 2023WRIC/21473/2022

Case brief

AI extract

What is this about?

Petitioner challenged illegal encroachment of his private land by Nagar Panchayat for a cremation ground. Court found lack of unanimous consent and arbitrary use of public funds. Directed compensation payment and independent enquiry.

What did the court decide?

Rs.81,536/-> granted as compensation; Rs.50,000/- granted for legal expenses and harassment; independent enquiry directed.

Jaiprakash Vs State of U.P. and 3 Others — Public Procurement and Tenders | Allahabad HC (2023)

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Court No. - 39

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Case :- WRIT - C No. - 21473 of 2022

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Petitioner :- Jaiprakash Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bratendra Singh,Kalyan Sundram Srivastava Counsel for Respondent :- C.S.C.,Saurabh Tiwari

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Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vipin Chandra Dixit,J.

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Two affidavits namely the personal affidavits of District Magistrate, Firozabad and the Executive Officer, Nagar Panchayat Jasrana, District Firozabad filed today, are taken on record.

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This case presents a sorry state of affair in dealing with a private property at the hands of Nagar Panchayat Jasrana, District Firozabad lying within its jurisdiction. The dispute pertains to plot no. 711 in Khatauni No.1094 area 0.065 Hectares situated at Jasrana Dehat, Pargana Mushtafabad, Tehsil Jasrana, District Firozabad. The Khatauni of 1428-1433 Fasli of the said land indicates the names of private persons 11 in numbers recorded therein. The copy of Khatauni 1427 Fasli is also appended at page '16' of the paper book.

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In the present petition, the petitioner has come out with the case that respondent nos.3- Nagar Panchayat Jasrana, District Firozabad and respondent no.4-the Executive Officer, Nagar Panchayat Jasrana, District Firozabad have illegally encroached upon the property of the petitioner and raised constructions on the cremation ground thereon without acquiring or seeking consent of the land owners. When the Nagar Panchayat started raising constructions for cremation ground, the petitioner had approached the District Magistrate, Firozabad through the Sub Divisional Magistrate, Jasrana by moving an application dated 8.7.2021. An enquiry was made thereon and the reports dated 18.8.2021 and 11.11.2021 were submitted by the Revenue authorities. The copies of the said reports are at page '22/25' of the paper book. It was intimated to the Sub Divisional Magistrate, Jasrana that plot no. 711 measuring 0.065 Hectares was recorded in the name of private tenure holders and on the said land, the cremation ground of(Swarnkar Moksh Daan) was being constructed and one room and verandah had already been constructed. It was noted that intimation in that regard had been given to the petitioner and he had been asked to lodge an FIR. In another report dated 11.11.2021 submitted to the Sub Divisional Magistrate, Jasrana it was reported that the Nagar Panchayat President had raised construction of boundary wall, one room and Verandah etc. after taking consent of few co-owners namely, Ramveer son of Murari Lal and Ram Nath son of Vanshidhar and others. Other co-tenure holders, however, did not give any consent. The said fact was also brought to the knowledge of the petitioner herein.

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It further appears that on obtaining these reports, the petitioner had approached the District Magistrate, Firozabad directly by moving an application dated 21.5.2022 requesting him to remove unauthorized construction of 'Marghat'(Cremation ground) over Gata No. 711 area 0.065 Hectare and hand over the possession to the petitioner.

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On the presentation of the writ petition, we have invited personal affidavits of the District Magistrate and the Executing Officer, Nagar Panchayat, Jasrana to bring the correct facts before us. The District Magistrate, Jasrana was directed to make an enquiry to compute compensation having noted that on the reports of Sub Divisional Magistrate, Firozabad dated 20.12.2022, pursuant to the order dated 30.11.2022 passed by this Court, no independent enquiry has been made by the District Magistrate, Firozabad. On filing of the affidavit, it was noted that the enquiry report dated 20.12.2022 submitted by the Sub Divisional Officer, Jasrana, District Firozabad to the District Magistrate, Firozabad had not been disclosed earlier in the personal affidavit of the District Magistrate. It was found that the District Magistrate, Firozabad had failed to comply with the order dated 30.11.2022 and thus, direction was issued to the District Magistrate to make an independent enquiry looking to the record of the Nagar Panchayat with respect to the plot in question, considering the report of the Sub Divisional Magistrate, Firozabad and submit his report. He was also required to make computation of compensation payable to the petitioner at the current circle rate for illegal utilization of his land for construction of the cremation ground.

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In the personal affidavit of the District Magistrate filed today, it is stated that the deponent namely, the District Magistrate, Firozabad himself looked into the revenue records, i.e. CH-41, CH- 45, Khatauni of 1428-1433 Fasli and found that Gata No.711 area 0.065 Hectares was recorded in the name of private tenure holders including the petitioner herein and there was no division by metes and bounds by any Court of law. As per the share certificate issued by the Lekhpal, the petitioner has 1/25th share in the land in question which comes to around 0.0026 Hectare. Looking to the record of the Nagar Panchayat, it was answered by the District Magistrate that the land in question is not recorded as public property in the Property Register. As per the report of the Sub Divisional Magistrate, Jasrana dated 20.12.2022, it was found that out of 0.065 Hectares of Gata No.711, an area of 0.0520 Hectares has been utilized for beautification of the private 'Swarnkar Shamshan Ghat'. A copy of the joint report dated 23.1.2023 has been appended as Annexure '4' to the affidavit.

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In the two members' joint report, it is stated that the plot in question was being utilized as private 'Swarnkar Samaj' and on the personal request of the tenure holders/co-owners/co-tenure holders, beautification work had been done by the Nagar Panchayat, Jasrana. Regarding compensation, it is sought to be submitted that the land in question is situated within the limits of Nagar Panchayat and as per the current circle rate, the compensation for the share of the petitioner which is 1/25th, i.e. 0.0120 Hectare, comes to Rs.81,536/-. Vide order dated 17.1.2023 the

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Executing Officer, Nagar Panchayat had been directed by the District Magistrate to pay compensation to the petitioner before the next date fixed in the Court. It was also noted that the petitioner was also expected to execute the sale deed for the land in question but he refused to do so.

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In the personal affidavit of the Executing Officer, Nagar Panchayat, Jasrana, it is sought to be submitted that an application dated 6.7.2018 was moved by the people of 'swarnkar Samaj' to the then Chairman Avinash Gupta on 7.7.2018 with the request to construct cremation ground over the plot in question. A perusal of the application dated 6.7.2018 received in the office of the Chairman, Nagar Panchayat, Jasrana indicates that nine persons claiming to be members of 'Swarnkar Samaj' moved an application dated 6.7.2018 with their signatures stating therein that an open land belonging to 'Swarnkar Samaj' in Mohalla Arailpura Jasrana, District Firozabad (behind Bankhandehwar Temple near the river) was lying vacant which becomes flooded with rain water during rainy season and there is possibility of spread of infectious decease. The people/members of 'Swarnkar Samaj' wanted that a cremation ground be constructed by the Nagar Panchayat over the said land and all members of 'Swarnkar Samaj" were agreeable to this proposal.

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It is then submitted that in the Board meeting, on the said application, a proposal at item no. 12 was made to construct the boundary wall over the land of 'Shamshan' behind the Bankhandehwar Temple. The details Project Report(DPR) was then prepared by the construction agency and after forwarding necessary papers to the State Government, upon sanction of the project, construction work was completed. The present Executing Officer, Nagar Panchayat, Jasrana who is deponent of this affidavit had only issued work order for the work in question after he had joined the post on 25.9.2020.

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Taking note of above submission, we raised a query as to how and in what manner the Nagar Panchayat, Jasrana on application given by Swarnkar people, (the members of one community), the private property of the petitioner and other cotenure holders(who are 11 in number) could be utilized for construction of the cremation ground that too out of public funds. A perusal of the application dated 6.7.2018 itself indicates that the land in question namely, Gata No.711, as per the statement therein, was lying vacant. The proposal was submitted before the then Chairman, Nagar Panchayat to construct a cremation ground over the said land. The application dated 6.7.2018 has been signed by nine members, who as per the claim of the petitioner, are the co-tenure holders of the plot in question. No objection or consent of the petitioner has been taken on the said proposal.

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In the alternative, it is sought to be submitted by the learned counsel for the respondents that the petitioner's share in the land in question is only 1/25th. i.e. 0.00208 Hectares. Out of total area 0.065 Hectares of Gata No. 711, the Nagar Panchayat has utilized 0.0520 Hectares for construction of the cremation ground. It is also submitted that infact it was construction of a public cremation ground for

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use of public with the consent of the land owners.

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These submissions are not found justified for the simple reason that it is admitted fact of the matter that out of eleven co-tenure holders of the plot in question, only nine had given application that they wanted use of the land in question as 'Shamshan Ghat'. Other two tenure holders having been left out, an enquiry was required to be made at the ends of the Nagar Panchayat, Jasrana before proceeding to deliberate the matter in the meeting of the Board held on 18.8.2018. No such exercise has been made nor any such material has been placed before us. In any case, each and every co-tenure holder of a land has share in each and every inch of the land. The possession of a co-tenure holder is the possession of all other cotenure holders, until a partition is made by metes and bounds through the Court of law or by settlement. The fact is that on the remaining area of 0.0130 Hectares of plot no.711 after construction of the cremation ground, eleven co-sharers will have their right though nine of them have parted with another portion of the joint property. The 1/25th share of the petitioner after construction of the cremation ground has, thus, been reduced substantially.

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All these inconsistencies having been found from the record, we are of the considered view that unless and until consent of each and every co-tenure holder was obtained by the Nagar Panchayat after making an enquiry by giving notice and opportunity to other co-tenure holders, there was no occasion to deliberate the matter in the Board meeting dated 18.8.2018 for construction of the cremation ground on a private property, even if that was for the public purpose. Moreover, the use of the cremation ground is only by the members of the community namely, 'Swarnkar Samaj'.

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As against the contention of the respondent that the land in question was being used as a cremation ground and only beautification work was done, it is relevant to note that from the contents of the application itself it is clear that there existed no cremation ground on the spot. The proposal of the members of the Samaj was to construct a cremation ground.

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The utilization of area 0.0520 Hectare for construction of private 'Swarnkar Shamshan Ghat' on the request of some of the co-tenure holders was without any proper exercise or enquiry.

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Further, no enquiry had been conducted by the Chairman, Nagar Panchayat or the Board of Nagar Panchayat or the Executing Officer, Nagar Panchayat as to whether the plot in question was suitable for making a cremation ground and whether any separate cremation ground only for one community was needed. Without making much needed enquiry, in a casual manner on the request of some private persons, public money was utilized at the ends of the Executing Officer, Nagar Panchayat for construction of the cremation ground that too for a particular community.

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This Court finds this act of the Executing Officer, Nagar Panchayat, Jasrana and the Board of Nagar Panchayat is as against the public interest and public policy besides being arbitrary and whimsical.

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Moving further, we may record that the District Magistrate, Firozabad, on application moved by the petitioner, did not make the necessary enquiry, rather the effort was made to justify the act of the Nagar Panchayat.

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The question would be as to how and in what manner public money could be utilized and whether utilization of public money at the ends of the Nagar Panchayat has resulted in an illegal exercise of power on the part of the then Chairman, Nagar Panchayat.

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It is also sought to be submitted by the learned counsel for the respondents that on the request of private persons beautification work can be made by utilization of public money by the Nagar Panchayat but nothing from the bylaws can be brought before. No provision permitting the Nagar Panchayat to invest public money on a private property, that too, at the behest of few persons, could be placed before us.

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From the material brought before us, we find that the construction of the cremation ground on a portion of 0.065 Hectare of Gata No. 711 which belonged to eleven tenure holders, on the application of few persons, was an illegal exercise of power.

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It goes without saying that action in accordance with law shall be initiated against the guilty officials.

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For the aforesaid, while issuing directions to the respondents to pay compensation to the petitioner herein, who is raising a dispute with regard to the illegal action of the respondents in deprivation of his private property, we provide that the petitioner shall also be entitled to legal expenses in approaching this Court and harassment caused to him. Rs.50,000/- shall be paid by Nagar Panchayat, Jasrana to the petitioner towards legal expenses.

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A cheque bearing No.353702 dated 27.1.2023 amounting to Rs.81,536/- has been placed before us to submit that for the compensation payable to the petitioner for illegal utilization of his land, an amount of Rs.81,536/- has been computed and the same is being paid through cheque. It is further sought to be submitted by the learned counsel for the respondents that the petitioner herein is required to execute the sale deed of the land in favour of Nagar Panchaya, Jasrana, for which compensation has been determined by the District Magistrate, Firozabad.

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We find fallacy in the said submission of the learned counsel for the respondents that the respondent Nagar Panchayat, Jasrana inasmuch as, as per own stand of the Executive Officer, Nagar Panchayat, Jasrana, the public money had been utilized for beautification of a private cremation ground for the people of 'Swarnkar Samaj'. The plot in question namely Gata No. 711 has been shown in the Khatauni

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1425 Fasli appended as Annexure in the personal affidavit of Executing Officer, Nagar Panchayat as 'Niji Marghat'. There is no question of transfer of the property in question namely Gata No. 711 in favour of Nagar Panchayat, Jasrana over which a private cremation ground has been constructed.

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The aforesaid cheque of Rs.81,536/- has been handed over to Sri Kalyan Sundaram Srivastava, learned counsel appearing for the petitioner towards damages.

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The compensation which is being paid to the petitioner to the tune of Rs.81,536/- is for the damages caused to him by illegal deprivation of his property with the construction of private cremation ground without his consent. In any case, the private cremation ground, as per own stand of the respondents, will be utilized for the people of the community known as 'Swarnkar Samaj' and the petitioner is deprived of his right to enjoy his property as per his own wishes to the extent of his share. The damages caused to the petitioner is computed by the District Magistrate to the extent of his share in the property utilized for the construction of private cremation ground. The compensation of Rs.81,536/- is thus, for the aforesaid purpose. The plea of the learned counsel for the respondents that the petitioner is required to execute a sale deed for his 1/25th share in Gata No. 711 which has been utilized for construction of cremation ground for the 'Swarnkar Samaj', is, thus, liable to be turn down.

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Before parting with this judgment, taking note of the aforesaid situation, we direct the concerned Principal Secretary, Nagar Vikas, Government of U.P., Lucknow to make an independent enquiry to ascertain the manner in which public money has been utilized by the Nagar Panchayat, Jasrana, District Firozabad for construction of a private cremation ground on the request of few persons belonging to one community. An enquiry into the illegal act of the Board of Nagar Panchayat, Jasrana, District Firozabad, in passing resolution to make construction is also required. The role of the then Executing Officer, Nagar Panchayat, Jasrana in initiating the proposal and the current Executing Officer, Nagar Panchayat, Jasrana, in issuing the work order for the work in question on joining the post on 25.9.2020, shall also be enquired into. The said enquiry shall be completed within a period of two months from today and the result of the enquiry shall be intimated to the Registrar General, High Court, Allahabad.

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The compensation paid to the petitioner under this order as computed by the District Magistrate, Firozabad, can very well be realized from the guilty officials after the enquiry conducted by the Principal Secretary, Urban Development, Lucknow.

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The writ petition is, accordingly, disposed of.

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Order Date :- 30.1.2023

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P.P.

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Digitally signed by :- POONAM PATEL High Court of Judicature at Allahabad

Jaiprakash v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Jaiprakash v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Statutes considered

Parties & counsel

Coram

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