Kamla Prasad v. State of U.P. and Another

Court No. - 51 Case :- WRIT - C No. - 23223 of 2023 Petitioner :- Kamla Prasad Respondent :- State of U.P. and Another Counsel for Petitioner :- Virendra Kumar Yadav Counsel for Respondent :- C.S.C. Hon'ble Chandra Kumar Rai,J.

¶1Heard Sri Virendra Kumar Yadav, learned counsel for the petitioner and Sri Abhishek Shukla, learned Addl. C.S.C. for the state-respondents.

¶2Rejoinder affidavit filed on behalf of the petitioner is taken on record.

3.The instant petition has been filed for following relief:- "1. Issue a writ, order or direction in the nature of mandamus commanding and directing the District Magistrate/Collector, District-Varanasi/respondent no.2 to decide the representation/application of petitioner dated 18.04.2023 which is pending before him within stipulated period or so fix by this Hon'ble Court.

¶2Issue any other suitable writ, order or direction and/or further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

¶3Award the cost of this writ petition to the petitioner."

¶4This court has directed the learned standing counsel to obtain instruction in the matter and after filing of instruction this Court vide order dated

10.10.2023 directed the learned standing counsel to file counter affidavit within two week and petitioner was directed to file rejoinder affidavit.

¶5In compliance of the order of this Court dated 30.10.2023 parties have exchanged their affidavit.

¶6Counsel for the petitioner submitted that the petitioner is recorded owner of plot no.1115, area 0.071 hect. but the authorities have interferred with the right as well as possession of the petitioner, as such, an application was filed before the District Magistrate with the prayer that the statue of Dr. Bheem Rao Ambedkar and that of Sant Ravidas be removed from plot no.1115, belonging to the petitioner.

¶7Mr. Abhishek Shukla, learned Addl. C.S.C. submitted that specific averment has been made in paragraph no.8 of the counter affidavit that the petitioner has admitted that the statue of Dr. Bauthority concernedheem Rao Ambedkar and that of Sant Ravidas were set up in August, 2003 and the application has been filed after 20 years before the District Magistrate for removal of the statue which cannot be entertained by way of miscellaneous application. He further submitted that an enquiry was conducted with regard to the alleged allotment made in favour of the petitioner but no document of allotment has been found. He further submitted that on the basis of the application dated 18.4.2023 filed by the petitioner, a revenue team made spot inspection on 6.10.2023. It is also submitted that the Land Management Committee has given a proposal to the petitioner to exchange the land over which the statue has been set up but the petitioner has not filed any reply to the proposal of the Land Management Committee. He also submitted that no specific reply has been given by the petitioner to the averment made in paragraph nos. 8 & 10 of the counter affidavit.

8.I have considered the argument advanced by learned counsel for the parties and perused the records.

¶9There is no dispute about the fact that petitioner is recorded tenure holder of Plot No.1115 area 0.0770 hectare and copy of Khatauni of 1429-1434 fasli has been annexed as Annexure No.5 to the writ petition. There is also no dispute about the fact that statue of Dr. Bhim Rao Ambedkar and Sant Ravidas have been fixed long back in Plot No.1115.

¶10In order to appreciate the controversy, the perusal of averment made in Paragraph No.12 of the writ petition, Paragraph Nos. 8 &12 of the Counter Affidavit and Paragraph No.9 &13 of the rejoinder affidavit will be relevant for perusal which are as under:-"Paragraph No.12 of the writ petition:-

¶12That when failed all effort by the muscle power person belong to the village then a new process was started and establishing Sant Ravidas and Dr. Bheem Rao Ambeđkar Statue and when the knowledge, on

22.08.2003 then the petitioner approached before the concerned Police Station-Jansa, Varanasi but all are vain and thereafter the petitioner approached before the higher authorities and thereafter, Concerned tehsil authorities has tried to resolve the dispute but being a muscle power person/miscreant person, proceeding of non-establishment of statue can be done and same is still existence. Paragraph Nos. 8 &12 of the Counter Affidavit:-

¶8That the contents of paragraph no.12 of the Writ Petition are not admitted hence denied. There is no material evidence on record with regard to the averments made by the petitioner in paragraph under reply. It is further submitted that the petitioner admitted that in the month of August, 2003 on the disputed land, other musclemen have taken possession over the land and established the statue of Sant Ravidas and Dr. Bhim Rao Ambedkar, which on the spot is still found. In the year 2023, in spite of dispossession, the petitioner has not filed any case before the Civil Court and after 20 years only on administrative application, possession cannot be transferred, which is against the law.

12.That the contents of Paragraph Nos. 19,20,21,22,23 and 24 of the Writ Petition are not admitted hence denied. In reply , it is submitted that the proceeding upon the application is being initiated s per rules. Paragraph No.9 &13 of the rejoinder affidavit:-

¶9That the contents of Paragraph No.8 of the Counter Affidavit as stated are not admitted. In reply to it is submitted that some facts mentioned in answering paragraph are agree but. However, the averment made in Paragraph No.12 of the affidavit are reiterated and reaffirmed.

¶13That the contents of Paragraph no.12 of the Counter Affidavit as stated are not admitted. However, the averment made in Paragraph Nos. 19,20,21,22,23 and 24 of the affidavit are reiterated and reaffirmed."

¶11Perusal of spot inspection report dated 6.10.2023 annexed as Annexure No.C.A.1 to the counter affidavit of state will be also relevant for perusal which is as under:- ककी गययी ककायरवकाहयी मकाननयीय उच्च न्यकायकालय, इलकाहकाबकाद मम ययोजजित यकाचचकका ससंख्यका 23223 सनन् 2023 मम कमलका्ቚ सकाद पपु्ቔ चनचቍኌ उरर चनसकारयी वगगैरह बनकाम उ०्ቚ० सरककार बजिररयये सचचव व जजिलका अजधिककारयी, वकारकाणसयी मम इन्स्टटक्शन कये बकाबत आजि चदनकासंक 06.10.23 ई० कयो गकाम भतसकार मम सस्ቝኌत चववकाचदत आरकाजियी ससं०1115 रकबका 0.77 हये० व 1116 रकबका 0.024 मम यकाचयी कमलका ्ቚसकाद सचहत गकामयीणण कये सम्ቌ तहसयीलदकार महयोदय, रकाजिकातकालकाब वकारकाणसयी व रकाजिस्व टयीम सचहत ममौकये पर उपसस्ቝኌत हहआ ममौकये पर यकाचयी कमलका ्ቚसकाद पपु्ቔ चनचቍኌ व ्ቚयेम पपु्ቔ मटरू सचहत गकामयीण कये बयीच यह चनश्चय हहआ चक चदनकासंक 15.10.23 ई० कयो यकाचयी अपनका असन्तम चनणरय लयेगका तቝኌका गकामयीण भयी इस तथ्य सये सहमचत जितकाययी गययी। ममौकये पर गकाम ्ቚधिकान-भतसकार भयी उपसस्ቝኌत ቝኌये। सकाቌኚय स्वरूप ममौकये पर उपसस्ቝኌत लयोगण कका हस्तका्ቌर करका जलयका गयका। तቝኌका यकाचयी कये पपु्ቔ दकारका भयी हस्तका्ቌर चकयका गयका।

¶12Considering the facts and circumstances of the case specially the averment made in Paragraph No.8&10 of the counter affidavit, petitioner is directed to file reply to the proposal of the respondent in pursuance of Annexure No.C.A.1 of the counter affidavit, before the respondent no.2 within a period of two weeks from today and the respondent no.2 shall consider the reply of the petitioner and proceed with the matter, in accordance with law, expeditiously. Respondent no.2 shall conclude the matter within 3 months from date of production of certified copy of this order before him.

¶13With the aforesaid observations, the instant writ petition is finally disposed of. Order Date :- 30.11.2023 C.Prakash High Court of Judicature at Allahabad