Ram Prasad Gupta vs State of U.P. and Others

Heard Learned Counsel for the Petitioner and learned Standing Counsel.

In the instant petition filed as public interest litigation, the Petitioner has alleged that Respondents No. 5 to 11 have encroached upon the plot No. 199, which is recorded as Khalihan, which is a public utility land.

Relying upon the judgment of the Hon''ble Apex Court in the case of Hinch Lal Tiwari Vs. Kamala Devi and Others, Learned Counsel for the Petitioner sought to argue that original nature of the public utility land be restored after dispossessing the unauthorized occupants.

On the other hand, learned Chief Standing Counsel has submitted that there are provisions under the U.P. Zamindari Abolition and Land Reforms Act, which provide for taking action in the event of any such encroachment and the Petitioners ought to have approached the competent authority taking recourse to the provisions contained under the said Act instead of rushing to this Court.

The contention on behalf of the Petitioners based upon the case of Hinch Lal Tiwari (supra) that such unlawful encroachments deserve to be removed, cannot be disputed as a proposition of law. However, from a perusal of the decision in Hinch Lal Tiwari''s case, we do not find that it, in any way, dispenses with the procedure to be followed under some statutory law.

The view taken by us finds support from a Division Bench decision of this Court in the case of Ravindra Nath Pandey v. State of U.P. and Ors. 2010 (1) ADJ 470 (DB) wherein, in identical facts and circumstances, it has been observed as under:

To say the least, the decision in the case of Hinch Lal Tiwari (supra) is a guidance in law to protect encroachment of public property in the shape of ponds and to restore their position, but on a closer scrutiny, we do not find that the said judgment in any way allows dispensation of the procedure prescribed in law to be adopted for removal of an encroachment or restoration of a pond.

It is to be noted that whenever such a mandamus is issued by this Court, the same does not amount to a mandamus for uprooting even a trespasser without following the procedure prescribed by law. Such instances are not unknown to this Court and with experience it has been found that such public interest litigations disclose serious disputed questions of fact which are agitated.

It is well settled that a mandamus cannot be issued to disobey law. If the law prescribes a procedure to be followed then the procedure cannot be obviated by a mere filing of a public interest litigation. Deviation from law by the State would lead to unrestrained action reflecting tyranny. Unguided and unbridled action, without proper investigation on the basis of unfounded allegations, or on the strength of mere pretentious public outcry, should not stir the firm foundations of the tried and tested procedures of law. The State authorities while protecting public property are not to discard claims outright on sheer presumptions without attempting to find out the truth.

We are in respectful agreement with the aforesaid view expressed by the Division Bench.

Considering the facts and circumstances of the case and looking to the submissions made before us and also as agreed to by the Learned Counsel for the parties, we dispose of this writ petition with the direction that in the event the Petitioner approaches the appropriate authority for redressal of his grievances by making a proper application, the same shall be considered and disposed of by the said authority in accordance with law after hearing the necessary parties.