# Lavkush & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 6 ILRA 42
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-03
- **Bench:** Sudhir Agarwal, Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lavkush-ors-v-state-of-u-p-ors-43994
- **Pages:** 4

## Text

42 INDIAN LAW REPORTS ALLAHABAD SERIES

First Information Report. PW-2 Pawan Kumar is the real nephew of PW-1 Kanhaiya Lal. From a perusal of
the evidence/oral testimony of PW-1 and PW-2 it transpires that accused Jagdish Prasad is living separately
in a house along with his family members in village Madahi, whereas the incident took place in a town of
Mahrajganj and distance between the two places is about 10 kms. In this regard it is important to mention that
PW-1 Kanhaiya Lal who is the author of the FIR and complainant of the case and also the father of the
deceased mentioned two addresses of accused Jagdish Prasad, i.e., Madahi and Mahrajganj and stated that at
the time of the incident, accused Jagdish Prasad resided at the place of the occurrence which under the facts
and circumstances of the case does not inspire confidence of the Court and on this point there is a statement
that at the time of the incident, accused Jagdish Prasad was also present at the scene of the occurrence and
played active role by pouring kerosene oil on the body of deceased Mamta and set her on fire is not
believable. Moreso, from any angle of the case Jagdish Prasad being member of a separate family and being
elder brother of the deceased father of the husband cannot be a beneficiary of the additional dowry. It is also
stated that the dying-declaration recorded prior to the death of the deceased does not show the presence or
involvement of accused Jagdish at the time of the incident or at the place of the occurrence. Since the dying
declaration does not establish the presence or involvement of accused Jagdish, factum of separate living of
accused Jagdish is proved. So far as the involvement of accused Jagdish in commission of the alleged offence
is concerned, he is not the beneficiary of the additional dowry. Hence, the statements of PW-1 and PW-2
recorded during the trial is neither cogent nor credible or trustworthy on this point.

20. Keeping all the facts and circumstances as stated above, the legal proposition as above
mentioned, there is no merit in the arguments raised by the learned counsel for the revisionist. The impugned
order does not suffer from any infirmity or perversity hence does not require any interference.

21. Accordingly, the impugned order rejecting the application of the revisionist under Section 319
Cr.P.C. is confirmed and the revision being devoid of merit is dismissed.

22. Let a certified copy of the judgment be transmitted to the court concerned for compliance.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.06.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Bench No.- 13474 Of 2016

Lavkush & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Mohd. Kashif Rafi, M.A. Siddiqui
6 All. Lavkush & Ors. Vs State Of U.P. & Ors.

43
Counsel for Respondents:
C.S.C., Shailendra Singh Chauhan

In the present writ the main grievance of the petitioners are that there is a public pathway connecting houses
of petitioners to R.D.S.O.- Rajajipuram Road falling in Village/Mohalla Dauda Kheda. Respondents 6 and 7 are
encroaching upon a public pathway by raising construction of a religious structure (Temple) and attempting to
encroach upon the public land. They have already constructed a Chabutara creating obstruction in smooth
passage on the said public pathway and despite several complaints to local and District authorities, none has
paid any heed to said grievance of petitioners. Photographs showing partial construction raised on pathway
and construction material kept on public pathway for raising further constructions have also been filed.
Court observed that There is no fundamental or legal right to encroach upon a public road (including
highway), street etc. and raise construction of any kind thereon. These unauthorised and illegal activities
cause hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen has
a fundamental right of movement and this cannot be allowed to be infringed by a few violators in public and
apathy of State authorities. Court held those who create such obstructions as also those who perpetuate it by
taking care/ managing such structures and also those who fail to take any action in law, all deserve to be
taken to task and make responsible and accountable for their respective misdeeds.

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Rakesh Srivastava, J.)

1. Heard Sri M.A. Siddiqui, Advocate, for petitioners, learned Standing Counsel for Staterespondents and Sri Savitra Vardhan Singh, Advocate for respondent 2-Nagar Nigam.

2. The grievance of petitioners, who are 19 in numbers and all are residents of Dauda
Kheda, Police Station Para, Lucknow is that there is a public pathway connecting houses of
petitioners to R.D.S.O.-Rajajipuram Road falling in Village/Mohalla Dauda Kheda. Respondents 6
and 7 are encroaching upon a public pathway by raising construction of a religious structure
(Temple) and attempting to encroach upon the public land. They have already constructed a
Chabutara creating obstruction in smooth passage on the said public pathway and despite several
complaints to local and District authorities, none has paid any heed to said grievance of petitioners.
Photographs showing partial construction raised on pathway and construction material kept on
public pathway for raising further constructions have also been filed.

3. Sri Siddiqui, learned counsel for petitioners, in a very spirited manner advanced his
arguments that people of this Country are basically simple and have faith in one or the other
religion. They are normally soft whenever any religious activity is undertaken, even if it causes
inconvenience of any kind to them. Taking advantage of such religious sentiments normally shown
by majority of people, some scrupulous people do not hesitate in gross misuse by proceeding to
encroach upon public land causing obstruction in smooth movement of public. Many a times, we
have seen that in the garb of constructing religious structures, like Temple, Mazar, Samadhi,
Mosque, Gurudwara, Church etc., public roads (including highways), streets, pathways etc. are
encroached upon, obstructing or creating hindrance in smooth movement of public including
vehicular traffic and once such structure is raised, due to fear of adverse consequences, people
44 INDIAN LAW REPORTS ALLAHABAD SERIES

normally avoid to complain, and used to adjust such misuse. It is submitted by learned counsel for
petitioners that authorities in power, who under the statute, are responsible to prevent such
encroachment and illegal constructions also play soft and do not take or hesitate in taking action for
preventing such activities and this is causing mushroom growth of such structures by encroaching upon
public roads (including highways), streets, pathways etc. He said that though these activities, one can
find in other places belong to public where such constructions are not permissible like Public parks, play
grounds etc., but for the purpose of present writ petition, he is confining his argument in respect to such
encroachments, made or sought to be made or attempted to be made, on public roads (including
highways), streets, pathways, lanes, bye-lanes etc.

4. When called upon, learned Standing Counsel stated that such encroachment and illegal
constructions, neither in law nor otherwise can be allowed, but fairly stated that looking to religious
sentiments of people, authorities find it difficult to take actual action and, therefore, this Court may issue
appropriate directions which may help the authorities to remove such constructions making
encroachment on public roads (including highways), streets and pathways etc. and also prevent the same
in future.

5. Looking to the aforesaid submissions as also the nature of order we propose to pass, we do
not find any necessity to issue notice to respondents 6 and 7.

6. There is no fundamental or legal right to encroach upon a public road (including highway),
street etc. and raise construction of any kind thereon. These unauthorised and illegal activities cause
hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen
has a fundamental right of movement and this cannot be allowed to be infringed by a few violators in
public and apathy of State authorities. In our view, those who create such obstructions as also those who
perpetuate it by taking care/ managing such structures and also those who fail to take any action in law,
all deserve to be taken to task and make responsible and accountable for their respective misdeeds.

7. Looking to the wider perspective of the issue and widespread tendency of such
encroachment in the name of religion, faith, sect etc., we find that the State Government and Officials
must be asked to act and show response in an effective manner.

8. We, therefore, dispose of this writ petition with the following directions:

(i) State of U.P. through Chief Secretary, U.P. is directed to issue a general direction to
all Collectors and Senior Superintendent of Police/Superintendent of Police including the Officers
responsible for maintenance of roads (including highways) in State of U.P. to ensure that no religious
structure in any form, whatsoever, shall be allowed/ permitted to be raised on public road (including
highways), street, pathway, lane etc. including sideways which is part and parcel of road (including
highways) etc. and belong to State.

(ii) If any such structure is existing and has been raised in the last five years, to be more
precise on and after 01.01.2011, the same shall be removed forthwith and a compliance report shall be
6 All. C/M Babu Baij Nath Singh Mahavidyalaya & Anr. Vs State Of U.P. & Ors.

45
submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned
department, who shall submit a comprehensive report to the Chief Secretary within next two months.

(iii) If any such religious structure has been raised encroaching upon public road
(including highways), street, lane etc., as stated above, before 01.01.2011, a Scheme shall be worked out
and executed to shift the same to a private land offered by beneficiaries of such religious structures or
persons responsible for its management or to remove it, within six months and a compliance report shall
be submitted in the manner as said above in Direction No. (ii).

(iv) On and after 10.06.2016, it shall be the responsibility of all Deputy Collectors/
Collectors in respective Sub-divisions and District as also Circle Officers and Superintendent of
Police/Senior Superintendent of Police of concerned District including the Officers responsible for
maintenance of roads (including highways) that no encroachment is made, by raising religious
structures, by whatever name it is called, belong to any religion, creed, caste, sect, section etc., on public
roads (including highways), streets, pathways, sideways, lanes etc. and if any deviation or disobedience
is found, these Officers shall be personally responsible. This disobedience shall also be treated a
deliberate and intentional disobedience to lower down authority of Court and would amount to criminal
contempt.

(v) State Government is also directed to make out a plan so as to ensure that public roads
(including highways), streets, pathways, sideways, lanes etc. are not obstructed creating hindrance in the
smooth flow of traffic/movement of public on such roads (including highways) due to observance of
religious activities and such activities are performed strictly at the places identified for the same or
belong to concerned religious sections or at private place.

(vi) In the present case, District Magistrate is directed to take immediate steps and take
appropriate action within two weeks.

9. A compliance report of the above directions shall be submitted through Chief Secretary, U.P.
Government after seven months i.e. by 07.01.2017 for perusal of Court.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.06.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ C No.- 28141 Of 2016

C/M Babu Baij Nath Singh Mahavidyalaya & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents