MANISH MATHUR,J. - (1.) Smt. Vidyawati, aged about 81 years, wife of Late Ram Bahadur Singh has preferred this petition for issuance of a writ in the nature of mandamus directing respondents not to construct road in bhumidhari land belonging to the petitioner comprised in Gata Nos.427, 428, 429, 495Kha, 495Ga, 432Ka and 432Kha, Situated in Village Dewarh, Pargana Chanda, Tehsil Lambhuwa, District Sultanpur.
(2.) The Court sought response from the respondents as to in what circumstances possession and ownership right of the petitioner is being disturbed, without compensating the petitioner. In Para-6 of counter affidavit dated 22.04.2019 sworn by Shri Rajesh Kumar Singh, posted as S.D.M., Lambhua, District Sultanpur it has been clarified that road has not been constructed on Gata No.432 eastern side, Gata Nos.428, 426, 495, 497 and 425. Land is being utilised by villagers and owners for ingress and egress. Khatauni has been appended with the counter affidavit as Annexure - CA-1.
(3.) Be that as it may, some of the land was left out in regard to which this Court felt that rights of the petitioner are being violated. In such circumstances, order dated 29.04.2019 was passed in the following terms:- "1. Order dated 22.4.2019 reads as under : "1. Counter Affidavit has been filed on behalf of respondents State in court, which is taken on record. We find that counter affidavit on behalf of respondent Gaon Sabha has not been filed. 2. We hereby direct Pradhan of Gram Sabha Dewarh, Pargana Chanda, Tehsil Lambhuwa, District Sultanpur to remain present in Court, on the next date of listing. 3. Sub-Divisional Magistrate, Lambhuwa, District Sultanpur is directed to ensure that the Pradhan is present in Court with an explanation as to under what circumstances, counter affidavit has not been filed in a case that relates to the year 2015. 4. We are conscious of the fact that the petitioner is 81 year old lady and has approached this Court against violation of her civil rights. Allegedly land owned by her is being encroached upon and utilized for construction of a Path, without payment of compensation. 5. We hereby put Sub-Divisional Magistrate, Lambhuwa, District Sultanpur to take notice. In case such a path is being constructed over the land owned, partly or otherwise by the petitioner, we shall seek personal explanation of the said officer. 6. List on 29.04.2019. 7. No further time would be given and costs in the sum of Rs.10000/- would be imposed, payable to the petitioner. 8. Let a copy of this order be sent to the Sub-Divisional Magistrate, Lambhuwa, District Sultanpur through Senior Registrar of this Court and counsel for respondents State Sri Siddharth Dhaon." 2. In deference to the above extracted order, Mr. Rajesh Pratap Singh, Gram Pradhan, as identified by his counsel Mr. Azad Khan, Advocate, has appeared in court. Counter affidavit filed today on behalf of respondent No.4 is taken on record. 3. The stand taken in para 4 of the counter affidavit filed on behalf of Gram Pradhan is that land comprised in Gata Nos. 427 and 432 is not absolutely owned by the petitioner. There is no partition between the share holders. The Kharanja/road has been constructed with mutual consent of co-sharers, other than the petitioner. The petitioner is also in possession of the land. The right of the petitioner is affected. Thus, compensation is to be made to the petitioner. 4. We have also referred to para 3 of the counter affidavit filed on behalf of Sub Divisional Magistrate, Lambhua, district Sultanpur which is available on record. It is the admitted position by the said officer that land belonging to the petitioner has also been utilised in making the Kharanja/path. It appears to be the admitted position of the respondents that the land is owned by co-sharers. The law is very clear on the issue that every co-sharer is the owner of every inch of such land. As regards the case set up by Gram Pradhan to the effect that by mutual settlement, the co-sharers agreed to give their land for construction of the Kharanja/path cannot be accepted in so much as no such document has been brought on record. Also it is the admitted position that the petitioner did not give her consent. In such circumstances, we are of the view that the right of the petitioner could not have been affected. We also find that the reply of the Sub Divisional magistrate is vague in so much as it has been pleaded that out of Gata No.427, land measuring three metres has been utilised for construction of the road. Likewise, land measuring three metres has been utilised from Gata No.432. The affidavit, however, does not disclose as to what is the total land in square metres utilised for constructing the road. If three metres land all along the line of the land belonging to the petitioner has been utilised, the petitioner is entitled to be compensated for the same. 5. Considering the totality of facts and circumstances of the case, we hereby record that the stand of the respondents is highly vague. It, however, stands established that civil rights of the petitioner have been adversely affected. Land of the petitioner has been utilised in constructing the road and therefore, she would be entitled to compensation. 6. We hereby adjourn the case with a direction to the respondents to demarcate the land in the presence of all concerned and thereafter compensate the petitioner to the extent of her share utilised for constructing the road on or before the next date of listing, or else costs in the sum of Rs.50,000/- would be imposed, to be recovered from the salary of the Sub Divisional Magistrate concerned. This provision is being made because the road was constructed in the year 2013. The writ petition was filed in the year 2015. For the past 6-7 years, the petitioner has been divested of her civil rights in land, however, has not been compensated. The compensation amount would be paid with interest calculated for a period of six years. 7. List on 21.5.2019 showing the name of Mr. Azad Khan, Advocate, on behalf of respondent No.4. Let a copy of this order be conveyed to District Magistrate, Sultanpur and Sub Divisional Magistrate, Lambhua, district Sultanpur, by Senior Registrar of the Court and Mr. Raj Baksh Singh, learned counsel for the State.? ;