- (1.) Let the supplementary affidavit filed today be kept with the record. This writ petition has been filed for the purpose of commanding the respondents not to permit the construction over the pond situated on a particular plot in question at Kunda, District Pratapgarh. He further prayed for commanding the respondent Nos. 1 to 10 to follow the ratio propounded by the Supreme Court in the judgment in Hinch Lal Tiwari v. Kamala Devi and others, 2001 6 SCC 496 and also for commanding the respondent Nos. 5 to 10 to comply with the order dated 22.3.2010 passed by the Commissioner, Allahabad Division Allahabad.
(2.) According to the writ petitioner, he is permanent resident of Nagar Panchayat Kunda and a public spirited person. According to him, a public pond is recorded in the revenue record in plot No. 430 at Kunda, District Pratapgarh for last 200 years, on which the construction is going to be made by the private respondents. Several applications made by the petitioner were forwarded to the concerned Sub Divisional Magistrate by the concerned Commissioner on 22.3.2010 and 24.3.2010, but no step has been taken as yet to protect the interest of the locality.
(3.) So far as the application of the judgment of Hinch Lal Tiwari is concerned, a Division Bench of this Court has passed an order dated 7th October, 2009 in Public Interest Litigation No. 48533 of 2009 Bhartiya Gramin Vikas Evam Prabandh Anusandhan Sansthan v. State of U.P. and others which is as follows: In this Public Interest Litigation, the prayer of the petitioner is to issue a writ in the nature of mandamus commanding the respondent authorities to remove the illegal encroachments over ponds and bhita at Village Baheru in the District Banda. Aforesaid prayer has been founded in the light of the decision of the Supreme Court in the case of Hinch Lal Tiwari v. Kamala Devi and others, 2001 6 SCC 496. Mr. R.C. Uttam appearing on behalf of the petitioner submits that as there has been encroachment over a pond and its bhita, the same is fit to be removed. A Division Bench of this Court had occasion to consider this question in detail in Civil Misc. Writ Petition No. 45164 of 2009, Ravindra Nath Pandey v. State of U.P. and others decided on 4.9.2009 in which it has been held as follows: To say the least, the decision in the case of Hinch Lal Tiwari 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 of 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 question of fact which are agitated. In view of the aforesaid, we are not inclined to interfere in this Public Interest Litigation. However, the writ petitioner, if so advised, may take recourse to any other remedy available to it in law. Application stands dismissed with the observation aforesaid.;