Gram Sabha Tarapur v. State of U.P. and 3 Others

Court No. - 51 Case :- WRIT - C No. - 13522 of 2023 Petitioner :- Gram Sabha Tarapur Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bhupendra Kumar Tripathi Counsel for Respondent :- C.S.C Hon'ble Chandra Kumar Rai,J.

1.Heard Mr. Bhupendra Kumar Tripathi, learned counsel for the petitioner/ Gram Sabha and Mr. R.C. Srivastava, learned Additional Chief Standing Counsel for State-respondents.

2.The instant writ petition has been filed praying for a mandamus commanding the respondents to grant Financial and Administrative Approval for construction of Gram Panchayat Bhawan on Arazi No.128(M) area 0.049 hectare as per proposal of Gram Sabha dated

09.10.2022 within stipulated period.

¶3This Court has passed following orders on 21.08.2023, 03.10.2023 and 17.10.2023:

21.08.2023 "1. In compliance of the earlier orders of this Court dated

23.5.2023/25.7.2023, Sri Anand Bhaskar Srivastava, learned standing counsel has placed the instruction dated 17.8.2023 before the Court which is taken on record wherein it is mentioned that plot no.128, area 0.040 hect. has been demarcated for the construction of gram panchayat bhawan and the land is vacant but there is no mention regarding the status of financial and administrative approval for the construction of the same over the plot in dispute which is the only prayer made in the writ petition.

¶2On the other hand, learned counsel for the petitioner submitted that area 0.049 hect. has been demarcated for construction of the gram panchayat bhawan in respect to plot no.128. He further placed the resolution of the gram sabha which has been annexed along with the writ petition.

¶3In view of the arguments advanced by learned counsel for the petitioner, learned standing counsel is granted two weeks' further time to obtain fresh instruction regarding the status of financial and administrative approval for the construction of the gram panchayat bhawan over the plot in dispute as well as instruction be also obtained regarding the area of plot no.128 which has been approved for the construction of the gram panchayat bhawan.

¶4Put up this matter as fresh on 12.9.2023."

03.10.2023 "1.This Court has directed to learned Standing Counsel to obtain instruction in the matter vide order dated 23.05.2023. On

25.07.2023 and 21.08.2023 again time was granted to learned Standing Counsel to obtain instruction in the matter.

¶2Today, Mr. R.C. Srivastava, learned Additional Chief Standing Counsel for the State-respondents further prayed for time to obtain instruction in the matter.

¶3Respondent No.3/ Sub Divisional Magistrate, Machhalishahr, Jaunpur is directed to file personal affidavit in the matter as to why instruction has not been filed in spite of the repeated orders passed by this Court as well as letter dated

08.07.2023 sent by the Sub Divisional Magistrate Machhalishahr, Jaunpur himself seeking time to send instruction. The personal affidvit shall be filed by next date fixed in the matter.

¶4Put up this matter as fresh on 17th October, 2023.

¶5Registrar (compliance) is directed to communicate this order to respondent No.3/ Sub Divisional Magistrate, Machhalishahr, Jaunpur within two days."

17.10.2023 "1.Personal affidavit datd 16.10.2023 sworn by Sub Divisional Magistrate, Machhalishahr, Jaunpur has been filed by Mr. R.C Srivastava, learned Additional Chief Standing Counsel for the State-respondents before this Court today, which is taken on record.

¶2Mr. R.C. Srivastava, learned Additional Chief Standing Counsel for the State-respondents on the basis of the aforementioned affidavit submitted that area of plot no.128 is not free from encroachment, as such the relief claimed in the writ petition cannot be granted at this stage.

¶3Mr. Bhupendra Kumar Tripathi learned counsel for the petitioner/ Gaon Sabha submitted that area, which was proposed for construction of the Panchayat Bhawan is very much vacant. He further submitted that plot No.128 M is very big plot as such, the initiation of the proceeding against the persons, who are in possession of the rest area will not come in the way of the petitioner to claim the relief in the matter.

¶4In view of the facts mentioned above, learned counsel for the petitioner shall file specific reply to the averment made in the personal affidavit dated 16.10.2023 within ten days.

¶5Put up this matter as fresh on 01.11.2023."

¶4In compliance of the orders of this Court, parties have exchanged their affidavit.

¶5Learned counsel for the petitioner submitted that plot No.128 M area 1.1830 hectare is recorded as naveen parti in the revenue record. He further submitted that resolution dated 09.10.2022 has been passed for construction of Panchayat Bhawan on Arazi No.128 M area 0.049 hectare out of total area 1.1830 hectare. He further submitted that prior to the proposal of Gram Sabha, spot inspection was made by the Revenue Inspector, who submitted his report dated 07.10.2022 in which it is mentioned that plot is suitable for the construction of Panchayat Bhawan. He next submitted that in spite of the completion of all formalities, the Financial and Administrative approval has not been given by respondent No.4/ Block Development Officer, Sujanganj, Jaunpur. He submitted that petitioner/ Gram Sabha filed an application before respondent Nos.2 and 3 on 15.12.2022 for granting approval for construction of Panchayat Bhawan, but no positive steps have been taken by the authorities, hence this writ petition.

¶6Mr. R. C. Srivastava, learned Additional Chief Standing Counsel for the State-respondents submitted that total area of plot No.128 M is 1.1830 hectare and the part area of plot No.128M is under encroachment of private person as such unless encroachment is removed it will not be proper to grant Financial and Administrative approval for the construction of the Panchayat Bhawan over plot No.128 M. He further submitted that no interference is required at this stage.

¶7In reply, learned counsel for the petitioner submitted that fact mentioned in paragraph No.7 of the personal affidavit filed by Sub Divisional Magistrate is not correct as the inspection conducted by the revenue team demarcated the plot No.128 in which it is mentioned that the area of Plot No.128 (M) is very much vacant on spot for the construction of Panchayat Bhawan and the encroachment which has been made by the encroachers that area comes about 89 Ayer while the total area of plot No.128 M is 1.1830 hectare and Panchayat Bhawan has been proposed for 0.049 hectare. He further placed the particulars of 22 cases which are pending in respect to the 89 Ayer area of plot No.128 M which is mentioned in paragraph No.4 of the rejoinder affidavit filed on behalf of the petitioner/ Gram Sabha. He finally submitted that area over which the Panchayat Bhawan is to be constructed is very much vacant on spot, as such the encroachment made on the remaining area will not come in the way of the petitioner for construction of Panchaya Bhawan on plot No.128 M area 0.049 hectare.

¶8I have considered the arguments advanced by the counsel for the parties and perused the record.

¶9There is no dispute bout the fact that plot No.128 M area 1.1830 hectare is recorded as naveen parti in the revenue record and there is no dispute about the fact that resolution dated 09.10.2022 has been made for the construction of the Panchayat Bhawan over the area

0.049 hectare of plot No.128 M. There is also no dispute about the fact that encroachment has been made over 89 Ayer of plot No.128 M regarding which the proceeding under Section 67 of U.P. Revenue Code, 2006 is pending before the Tehsildar.

¶10In order to appreciate the controversy, the proposal of the gaon sabha dated 09.10.2022 will be relevant, which is as under: "

कार्यवाही रजिस्टररजि स्टर

रूप पत्र संख्या प पत्र संख्या त्र संख्या संख्र्या8 दिनां क

उप पत्र संख्या स्थिस्त पंचो प पत्र संख्या ंचो/

सस्र्योकानाम प्रस्त पंचोा व नं०

की गई कार्यवाहीगई कार्यवाहीकार्यवाही रजिस्टर

प पत्र संख्या ंचसस्र्योका

ह०र्याअंगूठा दिनशान

श्री रजिस्टरमत पंचोी रजिस्टरशान्त पंचोी रजिस्टरेवी रजिस्टर

प्रधान

प पत्र संख्या ूव सूचनानुसारआ दिनांक

9.10.2022

को भूदिम शान्त पंचोी रजिस्टर

प्रबन्धक सदिमति तारापुरत पंचो त पंचोाराप पत्र संख्या ुर

बहाउद्दी रजिस्टरनप पत्र संख्या ुररा गढ़ की एककी गई कार्यवाहीएक

आवश्र्यक बैठक प्रा०दिव०

त पंचोाराप पत्र संख्या ुरमें ग्राम प्रधान अध्यक्षग्रामप्रधानअध्र्यक्ष

भूदिम प्रबन्धक सदिमति तारापुरत पंचो की गई कार्यवाही

अध्र्यक्षत पंचोामें ग्राम प्रधान अध्यक्षप्रारम्भकी गई कार्यवाहीगर्यी रजिस्टर

बैठककाकोरमप पत्र संख्या ूरारहा

अत पंचोः कार्यवाही प्रारम्भ करतेकार्यवाही रजिस्टरप्रारम्भकरत पंचोे

हुएअदिनल कुमार सदस्य नेकुमारसस्र्यने

प्रस्त पंचोावरखाकी गई कार्यवाहीशासनद्वारा

ग्रामसभामें ग्राम प्रधान अध्यक्षप पत्र संख्या ंचार्यत पंचोभवन

दिनमाण हेतु भूमि राजस्व हेत पंचोु भूदिम रा स्व

दिवभाग द्वारा दिनांक 07/10/2022

कोति तारापुरचस्थिन्हत पंचो

की गई कार्यवाहीगर्यी रजिस्टरउक्त के क्रम में गाटाकेक्रममें ग्राम प्रधान अध्यक्षगाटा सं. 128/0.049 हेक्टेर्यर

प पत्र संख्या ंचार्यत पंचोभवन1.263

हे०में ग्राम प्रधान अध्यक्ष

सेदिनमाण हेतु भूमि राजस्वहेत पंचोुसव सम्मत पंचोसे

प्रस्त पंचोाव प पत्र संख्या ारिरत पंचो दिकर्या गर्या

जि स प पत्र संख्या र उप पत्र संख्या स्थिस्त पंचो सभी रजिस्टर

सस्र्योद्वाराहस्त पंचोाक्षरबनार्या गर्या

उप पत्र संख्या रोक्त के क्रम में गाटाप्रस्त पंचोावप पत्र संख्या ारिरत पंचोकरने

केप पत्र संख्या श्चात पंचोअध्र्यक्षकी गई कार्यवाहीअनुमति तारापुरत पंचो

सेबैठककी गई कार्यवाहीकार्यवाही रजिस्टरसमाप्त

की गई कार्यवाहीगर्यी रजिस्टर।

अदिनल कुमार सदस्य ने कुमार (सस्र्य)

अदिनल कुमार सदस्य नेकुमार

राधेश्र्याम(सस्र्य) राधेश्र्याम

मुदिनरा (सस्र्य) मुनी रजिस्टररा

चन्द्रेशेखर(सस्र्य) चन्द्रेशेखर

रेशमाेवी रजिस्टर(सस्र्य)

रेशमाेवी रजिस्टर

सी रजिस्टरत पंचोाेवी रजिस्टर(सस्र्य)

सी रजिस्टरत पंचोाेवी रजिस्टर

रमाशंकर(सस्र्य)

ग्रामरा मढ

वी रजिस्टररेन्द्र(सस्र्य) वी रजिस्टररेन्द्र

रामसहारे(सस्र्य)

रामसहारे

सुमनेवी रजिस्टर(सस्र्य) सुमन

राधाेवी रजिस्टर(सस्र्य)

दिववेक रं न (सस्र्य)

फूल कुमार सदस्य ने कुमारी रजिस्टर (सस्र्य)

हस्त पंचोाक्षरशान्त पंचोी रजिस्टरेवी रजिस्टर

भू०प्र०सदिमति तारापुरत पंचो अध्र्यक्ष"

¶11The averment made in paragraph No.7 of the personal affidavit filed by the Sub Divisional Magistrate as well as averment made in paragraph No.4 of the rejoinder affidavit filed on behalf of the petitioner/ Gaon Sabha will be relevant for perusal, which is as under: Paragraph no.7 of personal affidavit: "7. That, it is further most respectfully submitted that now, there is some new facts with regards to the land in question as there is encroachment over the land of Gata No.128 area `.2630 hectare by the Geeta devi wife of Sri Jeet Lal and Sangeeta Devi wife of Sri Shiv Shanker by making Chhappar. For kind perusal of this Hon'ble Court, the copy of the amended instruction dated 16.10.2023 is being filed herewith and marked as Annexure No.2 to this affidavit." Paragraph No.4 of rejoinder affidavit to the personal affidavit: "4. That the contents of paragraph no.7 of the said affidavit are not admitted as stated and it is further submitted that Arazi No.128 area 1.183 hectare is recorded as Navin Parti and on the basis of Proposal of Gram Sahba the Revenue Team demarcated the said land for construction of Panchayat Bhawan on07.10.202 and in respect to the encroachment over the land in question it is stated in para under reply that the proceeding under Section 67 of U.P. Revenue Code, 2006 is pending before the Tehsildar against 22 encroachers and again on

01.11.2022 the remaining vacant land demarcated as area 0.040 hectare for construction of Panchayat Bhawan. It is relevant to submit here that it is wrong to say that only

0.040 hectare land remain vacant out of 1.183 hectare in fact from the perusal of report of Lekhpal it is crystal clear that total 89 Ayer land of the said Arazi has been ecroached by the 22 persons and 1.094 hectare land remain vacant but the revenue authority has submitted wrong report before this Hon'ble Court and with collusion of revenue authority some persons encroach the said land after 07.10.2023 in intention to not construct the Panchayat Bhawan, the detail of encroachers as well as encroached land as under: Arazi No. 128 area 1.183 Hectare No. Party Name Case No. Area

of encroached land

¶1Lekhpal Report Vs. Shatughan 202314360300634 4 Ayer

¶2Lekhpal

Report Vs.Radhey shyam 202314360300635 8 Ayer

¶3Lekhpal Report Vs. Devsaran 202314360300635 4 Ayer

¶4Lekhpal Report Vs. Dharamraj 202314360300636 8 Ayer

¶5Lekhpal Report Vs. Abhayraj 202314360300637 8 Ayer

¶6Lekhpal Report Vs. Sriram 202314360304463 4 Ayer

¶7Lekhpal Report Vs. Lalji 202314360304464 4 Ayer

¶8Lekhpal Report Vs. Multan 202314360304465 4 Ayer

¶9Lekhpal Report Vs. Chandrabali 202314360304466 4 Ayer

¶10Lekhpal Report Vs. Sitaram 202314360304467 4 Ayer

¶11Lekhpal Report Vs. Amarnath 202314360304468 4 Ayer

¶12Lekhpal Report Vs. Bhagauti 202314360304469 4 Ayer

¶13Lekhpal Report Vs. Meena Devi 202314360304470 4 Ayer

¶14Lekhpal Report Vs. Vakeel 202314360304471 3 Ayer

¶15Lekhpal Report Vs. Munnilal 202314360304472 3 Ayer

¶16Lekhpal Report Vs. Munnalal 202314360304473 2 Ayer

¶17Lekhpal Report Vs. Nandlal 202314360304474 3 Ayer

¶18Lekhpal Report Vs. Khedu 202314360304475 3 Ayer

¶19Lekhpal Report Vs. Usha Devi 202314360304476 3 Ayer

¶20Lekhpal Report Vs. Ashok 202314360304476 3 Ayer

¶21Geeta Devi wife of Late Jeetal 202314360306429 3 Ayer

¶22Sangeeta Devi w/f Late Shivshankar 202314360306430 3 Ayer

¶23Total Encroached Area 89 Ayer

¶24Remaining Area

1.094 Hectare From the perusal of aforesaid detail it is clear that in Arazi No. 128 only 89 Ayer land have been encroached and at present

1.091 hectare land remain vacant on spot and as such in area

0.0490 hectare the Panchayat Bhawan will be constructed but due to malafide intention of authority concern the Panchayat Bhawan has not been constructed till date."

¶12Since the total area of the plot No.128 M is 1.1830 hectare and the resolution of the gram sabha has been passed with respect to the area

0.049 hectare for the construction of Panchayat Bhawan, as such there is no hindrance for granting Financial and Administrative approval in accordance with law for the construction of Panchayat Bhawan in plot No.128 area 0.049 hectare which is recorded as naveen parti in the revenue record and the same is very much vacant on spot. So far as encroachment over 89 ayer area of plot No.128M is concern, that is different area to the area over which panchayat bahawan is to be constructed.

¶13Considering the entire facts and circumstances of the case, writ petition is allowed and mandamus is issued to respondent No.2/ District Magistrate, Jaunpur to grant Financial and Administrative approval in accordance with law for construction of Panchayat Bhawan in arazi No. 128 M area 0.049 hectare within a period of two months from the date of production of certified copy of this order before respondent No.2. Order Date :- 29.11.2023 PS* High Court of Judicature at Allahabad