- (1.) BY the Court.- Heard Shri Rajeev Mishra, learned counsel for the petitioners Shri C.K. Rai, learned Standing Counsel appearing for the respondent Nos. 1, 2, 3, 6 to 9 and Shri Atul Mehra appearing for respondent No. 10. The petitioners by this writ petition have challenged the survey reports dated 22-6-2009 and 7-6-2009, by which survey report the State authorities have determined that petitioners have encroached on the Varanasi-Ghazipur Road (National Highway No. 29) and the encroached portion which includes the boundary wall has been marked for demolition.
(2.) BRIEF facts necessary to be noted for deciding this writ petition are: The petitioners being husband, wife and son purchased by registered sale deed different portion of land situate in Village Khajuri District Varanasi. The sale deed taken by the petitioners were of Plot No. 64/1 measuring 3261 Sq feet dated 24.2.1998, House No. S-8/460-C situate in Village Khajuri whose Plot No. was 65/1 area 2610 Sq Feet dated 24-2-1998, Plot No. 66/1 measuring 1790 sq feet dated 24.2.1998, Plot No. 64/1 measuring 1803 Sq feet dated 14-7-1999 and House No. S-8/460 Ka-1 area 1360 Sq feet in Plot No. 66/1 dated 12-5-2000. The building plan was submitted by the petitioners before the Varanasi Development Authority (hereinafter referred to as "VDA") which issued permission letters on 2-5-2002 and 17-5-2002. The petitioners claimed to have made construction of their houses. On 30-8-2004, the officials of the PWD visited the house of the petitioners and demolished the boundary wall claiming it to be encroachment on the road. On 27-8-2004, petitioners had filed Original Suit No. 694/2004 in the Court of Civil Judge, Senior Division, Varanasi for permanent injunction. An ad interim injunction was granted on 14-9-2004. The defendants filed written statement in the suit claiming that the petitioner's boundary wall is encroachment on the road land. It was also claimed by the State respondents that earlier the road in front of Plot Nos. 64/2, 65/1 and 66/2 was 8 meters but land was acquired in the year 1956 for widening of the road on the left side where the above plots are situated. It was also submitted that the notification has also been issued under sub-section (1) of Section 3 of the U.P. Roadside Land Control Act, 1945 (hereinafter called the "Act, 1945") notifying 220 feet from the centre line of the road within the controlled area. The trial Court vide its judgment and decree dated 16-1-2008 decreed the suit injuncting the defendants from interfering with the construction of the plaintiffs and further restraining the defendants not to demolish the construction till clear demarcation is made of the acquired land of Plot Nos. 65/1, 66/1 and 66/2. It was further ordered that after the measurement it will be open for the defendants to remove any construction on the acquired land and to include it in the road. Proceedings under the Act, 1945 which were initiated were dropped after the judgment and decree by the Civil Court. Petitioners case further is that on 24-5-2009, opposite parties dug a pit alongwith boundary wall of the petitioner in front of the entrance/exit gate blocking the entrance of the petitioners. Petitioners said to have submitted a representation on 25-5-2009 to the Executive Engineer and thereafter filed Civil Misc. Writ Petition No. 5300 (M/B) of 2009 (Dr. S.N. Sharma and another v. State of U.P. and others) in the Lucknow Bench of this Court on 5.6.2009. The said writ petition was disposed of vide order dated 12-6-2009 on the statement of the learned Chief Standing Counsel that the opposite parties are ready to get the demarcation of the land done in presence of the petitioners by the Revenue Authorities which shall start from 22-6-2009. The Court directed that till then status quo be maintained in the land in dispute. After the order of the Division Bench of this Court dated 12-6-2009, measurement started on 22-6-2009. Petitioners were called in the measurement and participated in the proceedings alongwith their Advocates. The measurement was conducted for about 6 hours and thereafter the report was prepared. Petitioners did not put their signatures on the measurement although revenue officials and Engineers signed the report and the map. In the measurement the portion of road which were encroached by the petitioners including their boundary wall has been marked apart from construction of others. Petitioners after the said measurement having aggrieved has filed this writ petition in this Court praying for following reliefs: "(1) Issue a writ, order or direction in the nature of certiorari quashing the survey report dated 22.6.2009 and the survey report dated 7.6.2006 (Annexure 26 and Annexure 20 to this writ petition). (2) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 8 the DM Varanasi to correct the revenue entry in respect of survey plot No. 65/1 as incorrectly occurring from the Khatauni of 1398 Fasli onwards. (3) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to take any action against the petitioners on the basis of the measurement/demarcation report dated 22.6.2009 and 7.6.2009. (4) Issue a writ, order or direction in the nature of mandamus commanding the respondents not erect the pillar or the flyover in away which obstruction the entry/exit from the gate of the house of the petitioners and further to ensure a moterable service road is available to the petitioners. (5) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to close the pit dug by them in front of he house of the petitioners." Counter affidavit has been filed on behalf of the State respondents to which rejoinder affidavit has also been filed by the petitioners.
(3.) SHRI Rajeev Mishra, learned counsel for the petitioners challenging the measurement dated 22.6.2009 contended that measurement made by the respondents is not in accordance with law. Petitioners were not given any notice before carrying out the measurement. It is contended that the plots in which the petitioners' house and boundary wall is existing were purchased by the petitioners by different sale deeds in the year 1998-99 and 2000. The boundary wall of the house is an old boundary wall which was existing much before the purchase by the petitioners. The boundary wall was illegally demolished on 30.8.2004. Petitioners claim to have put wire net fencing at the same place. The measurement which has been carried out by the respondents has not been carried out in accordance with the judgment and decree of the trial Court dated 16.1.2008 in Suit No. 694/2004. The measurement has not been made as to what is the extent of land acquired by the State in Plot Nos. 65/1 and 66/1, referring to the area acquired by the aforesaid two plots, it is contended that at best the acquired portion of both the plots shall be only 435+435=870 Sq feet and the strip of the land which has been marked in the petitioners plots is much beyond that area. It is submitted by the learned counsel for the petitioners that the stand taken by the State in the written statement filed in the civil Court in Suit No. 694/2004 is not in accordance with the stand now being taken by the respondents in the counter affidavit filed in this writ petition. It is further submitted that the petitioners have purchased Plot No. 65/1 from Gurdev Singh and Gurpreet Singh through sale deed dated 24.2.1998, but mutation of the petitioners name was made on Plot No. 65/2 which plot is shown in the name of Gurdev Singh and Gurpreet Singh. It is submitted that in Khasra No. 1397 to 1402, Plot No. 65/1 was recorded in the name of Gurdev Singh and Gurpreet Singh, but subsequently in Khatauni 1403 to 1408, Plot No. 65/1 was changed into Plot No. 65/2,without there being any order by the competent authority. Learned counsel for the petitioners further contended that although 3 wells were taken as fixed point in the measurement carried on 22.6.2009, but their internal distance were not verified. It is submitted that the plain table survey ought to have been conducted. It is submitted that the building plan having been approved by the VDA where the width of the road was duly mentioned, it is not open to the respondents to say that the width of the road is much more as was mentioned in the plan.;