- (1.) Heard Sri K.K. Tripathi, learned Counsel for the petitioner, learned Standing Counsel for the State and Sri S.M. Shukla, learned Counsel for the Nagar Nigam. The petitioner had earlier come up before this Court contending that his Plot No. 28-cha was wrongly occupied by the Nagar Nigam by fixing pillars in order to establish a cremation ground. The petitioner's Writ Petition No. 19746 of 2014 was disposed of by us on 3.4.2014 by the following judgment: "Heard Sri K.K. Tripathi, learned Counsel for the petitioner and Sri S.M. Shukla for the respondent-Nagar Nigam Gorakhpur and the learned Standing Counsel for the State and its authorities. The petitioner contends that his Plot No. 28-Cha which stands recorded in his name and also in the name of his predecessors in interest is now being encroached by the Nagar Nigam by fixing pillars for the purpose of establishing a cremation ground. Learned Counsel submits that the long standing entries as contained in the Khatauni from 1395 fasli onwards which have been brought on record indicate that the petitioner's predecessors in interest as well as the petitioner's name is recorded over the holding. The dispute had also arisen with the State Government during the construction of one Raj Ghat Bridge and proceedings were undertaken under section 33/39 of the U.P. Land Revenue Act, 1901. During the said proceeding it was unravelled that a previous litigation had also been undertaken upto the High Court in relation to the said status and title of the land as claimed by the petitioner and after taking notice of the said facts the Tehsildar Sadar Gorakhpur passed orders on 27th May, 2003 indicating that the entries of the petitioner deserve to be restored keeping in view the previous litigation as referred to therein. The said order of the Tehsildar was placed for approval as the powers under section 33/39 vest in the Sub-Divisional Magistrate and the same was approved on 16.4.2005. On the strength of these documents, Sri Tripathi submits that the encroachment which is being attempted by the Nagar Nigam should be injuncted. From the impugned direction issued by the Deputy Municipal Commissioner dated 20th March, 2014, we find that the objection taken by the said authority is that since the petitioner has not filed any formal application for demarcation under section 41 of the U.P. Land Revenue Act, 1901, the exercise of an informal demarcation or measurement conducted by the Tehsildar is without authority in law. The request has therefore been made to the District Magistrate, Gorakhpur not to allow the authority to proceed with any such measurement or demarcation. Having heard learned Counsel for the parties and having considered their submissions, we find that the matter can be disposed of at this stage itself. Learned Counsel for the respondents submit that they do not propose to file any counter affidavit at this stage and appropriate directions can be issued to the District Magistrate and the Sub-Divisional Magistrate - respondent Nos. 5 and 6 for conducting such proceedings that may be permissible under law. Section 41 of the U.P. Land Revenue Act, 1901, empowers the authorities mentioned therein to demarcate the land in question. The Deputy Municipal Commissioner has no authority to restrain the revenue authorities from proceeding to do so. Consequently, we hereby direct the District Magistrate, Gorakhpur either to get the demarcation conducted himself or through the respondent No. 6 in exercise of powers under section 41 of the U.P. Land Revenue Act, 1901, within a period of one month from today, and we further direct that the status quo with regard to the Plot No. 28-Cha as claimed by the petitioner in the entries be maintained unless there is any order to the contrary of any authority or higher Court. The writ petition is allowed. No order as to costs."
(2.) Thereafter demarcation proceedings have been carried out which the petitioner alleges is not exactly in accordance with the procedure prescribed and the demarcation also does not appear to be correct.
(3.) However, Sri K.K. Tripathi, learned Counsel, contends that the demarcation does indicate the separate area of Plot No. 28-Cha, but neither possession has been handed over to the petitioner nor any further action has been taken and, therefore, a mandamus has been prayed for to deliver possession of the said plot according to the boundary mentioned in the sale-deed of the petitioner dated 10.6.1993.;