The Court dismissed a writ petition as not pressed. The dispute involved alleged encroachment on public land and shops. Prior orders directed demarcation of the disputed plot and maintained status quo pending a civil suit. The petitioner voluntarily withdrew the petition.
The writ petition is dismissed as not pressed.
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Court No. - 40
Case :- WRIT - C No. - 38112 of 2022
Petitioner :- Pramod Kumar Respondent :- State Of Up. And 5 Others Counsel for Petitioner :- Ashok Kumar Singh Bais,Mashaluddin Shah Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the petitioner and learned Standing counsel for the State respondents.
The present writ petition has been preferred for the following relief:-
"i. Issue a writ, order or direction in the nature of mandamus directing the respondent concerned to enforce and comply with the notice dated 16.04.2022 issued by the respondent no. 3 with immediate effect. So that justice may be done.
ii. Issue a writ, order or direction in the nature of mandamus directing the authorities concerned to remove the illegal encroachment over the land of Road Khasra No. 293 situated at Chilkana Bahar Hadood, Tahsil Sadar Saharanpur. So that justice may be done."
Factual aspect of the matter in questioin is that alleged dispute arises in respect of Khasra No. 295 measuring 0.543 hectare and adjacent plot no. 293, upon which some shops in dispute are located. It appears that the status of the petitioner is complainant and on whose complaint dated 13.04.2022, S.D.M. (Administration), Saharanpur took cognizance on 16.04.2022 and issued direction to Executive Engineer, P.W.D, Section-3, Saharanpur and Executive Officer, Nagar Panchayat, Sultanpur, Chilkana to the effect that encroachment
from Khasra No. 293 be removed. Apprehended with the order dated 16.04.2022, Ali Imam and 7 others have approached this Court by preferring Writ-C No. 11587 of 2022 (Ali Imam and 7 others vs. State of U.P. and 4 others, wherein they claimed that without any demarcation of the plot in question, the demolition proceedings cannot be carried out.
In this back ground, the coordinate Bench of this Court vide order dated 26.04.2022 has proceeded to pass the following order which is extracted herein below:-
"Heard learned counsel for the petitioners, learned Standing Counsel for the State and Sri Sanjay Mishra learned counsel who has put in appearance on behalf of the opposite party no. 4.
The dispute pertains to khasra no. 295 measuring 0.543 hectares upon which the shops in dispute which are said to have been constructed on the basis of a duly sanctioned plan and were purchased by the petitioners. The road is situated on khasra plot no. 293 and the same is adjacent to plot no. 295.
It is averred in paragraph 21 of the writ petition that the shops in dispute are constructed on plot no. 295 and no part of it is constructed on plot no. 293.
It is on this premise that the petitioners apprehending the demolition of the shops in furtherance of the order dated 16.4.2022 have approached this Court. The petitioners have informed that a further notice has been issued on 16.4.2022.
Looking to the revenue map as well as the averments made in para 21 of the writ petition, it is gathered that the entire claim of the petitioners rests on the premise that the shops stated to have been unauthorized constructed are as a matter of fact situated on plot no. 295. Thus, there is a dispute with respect to the demarcation of plot no. 295 so as to locate the exact situation of the disputed shops.
Learned counsel for the petitioners has argued that the shops in question cannot be demolished unless the demarcation of plot no. 295 measuring 0.543 hectares is finalized by the opposite parties.
Accordingly, we hereby direct the Sub-divisional Magistrate(Administration), Saharanpur to ensure demarcation of plot no. 295 measuring 0.543 hectares before resorting to demolition of the shops in question and in case any of the shops is situated on plot no. 293 as has been mentioned in the impugned notice, the notices issued to the petitioners may be proceeded with and necessary action be finalized in accordance with law.
The demarcation shall be ensured in presence of the petitioners and the other legitimate owners of the khasra plot no. 295 after due notice to them.
This exercise shall be completed within a period of one month within which the demolition proceedings shall remain in abeyance.
The writ petition is accordingly disposed of."
It appears from the record that on the other hand Mohammad Ahsan and Another have also approached this Court relating to the same Khasra /plot and preferred the matter under Article 227 of the Constitution of India in Matters Under Article 227 No. 2982 of 2022 (Mohammad Ahsan and another vs. State of U.P.), on the ground that the applicants have already filed the injunction suit along with injunction application Paper No. 6-C-2 under Order 39 Rule 1 & 2 CPC in Original Suit No. 440 of 2021 and till the decision on the interim injunction application, the status quo should be maintained otherwise they would suffer irreparable loss and injury.
Learned Single Judge vide order dated 25.04.2022 has proceeded to disposed of the writ petition with following direction : -
"In the facts and circumstances of the case, the present petition is disposed of with direction to the Civil Judge (Junior Division), Hawali, Saharanpur to decide the application Paper No. 83Ga2 dated 27.02.2020 in accordance with law, expeditiously, maximum within a period of three months from the date of production of certified copy of this order after providing opportunity of hearing to all concerned and without granting any unnecessary adjournment to either of the parties. In case, application is not decided within the aforesaid time, Court shall record the reason for the same.
For a period of three months or till the disposal of 6C application, whichever is earlier, status quo shall be maintained between the parties."
In this backdrop, learned counsel for the petitioner has approached to this Court, precisely on the ground that
illegal encroachment over the land of Road Khasra No. 293 situated at Chilkana Bahar Hadood, Tahsil Sadar Saharanpur be removed and consequently the notice dated 16.04.2022 which has been issued by the respondent no. 3 be enforced.
Once the Court has proceeded to peruse the record in question, it transpire that admittedly the original suit is pending consideration and learned Single Judge under Article 227 of the Constitution of India has already accorded time to the Civil Court to decide the matter without granting unnecessary adjournment to either of the parties. The relief that has been sought for by the petitioner has already been addressed by this Court in aforesaid petitions.
In view of above, once the Court has declined to entertain the writ petition and expressed it's views in negative, confronted with the situation, learned counsel for the petitioner states that he is not inclined to press the present writ petition and the same may be dismissed as not pressed.
Accordingly, the writ petition is dismissed as not pressed.
Needless to say that it is always open to the petitioner to agitate the grievance before the appropriate forum / court.
Order Date :- 10.2.2023 Bhanu
Digitally signed by :- BHANU PRATAP KUSHWAHA High Court of Judicature at Allahabad
1 issue framed by the court
Whether the writ petition seeking enforcement of a notice and removal of encroachment should be allowed or dismissed.
Pramod Kumar
State Of Up
Bhanu Pratap Kushwaha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
