- (1.) We have heard the learned counsel for the petitioner as well as learned standing counsel. The petitioner has approached this Court seeking writ of mandamus commanding the respondents to comply the order of this Court dated 9.4.2013 passed in Civil Misc. Writ Petition No.10815 of 2013 for restoring the pond in such a manner which may not endanger the life and property of the petitioners whose houses are situated adjacent to the pond and in the alternative it has been sought that the petitioner is prepared to give any other plot in place of 116 area which is the plot for pond. The petitioner had earlier approached this Court and this Court vide order dated 9.4.2013 dismissed the writ petition. The Court had taken a very serious view that regarding the conduct of the petitioner in usurping the public utility land of the Gaon Sabha, which was for the habitat of the Village, and directed the District Magistrate to ensure that the constructions over the pond are demolished immediately and the pond is dug out and retored to the Villagers. The order of the Court is as follows:- "1. We have heard learned counsel for the petitioner and learned Standing Counsel for the State.
(2.) On 28.2.2013, this Court has passed the following orders:- "It is submitted that in the proceedings, initiated for removing encroachment and restoration of village pond against Shri Mewa Ram (the petitioner), Shri Sumer Lal and Shri Rameshwar Dayal, all sons of Shri Dwarika Prasad, resident of village Bahadurpur Hukmi, Tehsil Bisalpur, District Pilibhit, were dropped on the report submitted by the Lekhpal, that they are not in unauthorized occupation of the reported area of the pond in question. It is fairly admitted that out of encroachment over 1500 square meters of land recorded as pond on which the petitioner and his two brothers have made constructions, the report of Lekhpal was only in respect of 200 square meters. The petitioner thereafter made an application under Section 161 of UP ZA & LR Act for exchange of the land encroached by him, on which he has raised constructions, with his bhumidhari land in Gata no. 17 area 0.1210 hec. The exchange under Section 161 of the Act is permissible with gaon sabha land or local authority land for time being subject to the approval of the Assistant Collector. In the present case, the Additional District Magistrate has communicated to the petitioner the order of the District Magistrate dated 30.1.2013, by which the permission has been rejected. It is submitted that the petitioner has not been given a copy of the order of the District Magistrate dated 30.1.2013. If the petitioner applies for a copy of the order dated 30.1.2013 from the office of District Magistrate, the same will be provided to him within three days. Learned Standing Counsel will seek instructions and produce a copy of the order of the District Magistrate dated 30.1.2013. He may also address the Court on the question of exchange in such situation, in view of the judgment of Supreme Court in Hinch Lal Tiwari vs Kamala Devi And Ors, 2001 6 JT 88. List on 19.3.2013 in the additional cause list. "
(3.) A report has been submitted by the District Magistrate, Pilibhit, which is also signed by Addl. District Magistrate (Finance and Revenue), Pilibhit and Sub Divisional Magistrate, Beesalpur, Pilibhit, in which it is stated that the petitioner has not only levelled the pond situated on Gata No. 116, area 0.121 hectare, he has also made construction over 395 sq. meter of land and remaining 767 sq meter of land is also being used by him for residential purposes. It is reported that the petitioner ows an ancestral house in village abadi. The District Magistrate further reports that under Section 132 of the UPZA & LR Act, no person can claim bhumidhari rights in respect of the land of Gaon Sabha used for public utility. The Gaon Sabha land used for pond, grazing land and land left for 'khalihan' etc cannot be exchanged with any other land. The land reserved for public purpose under Section 29(c) of the UP Consolidation of Holdings Act also cannot be exchanged by the Gaon Sabha. The provision of Section 161 (5)(3) of the Act are not attracted in the present case.;