# Satish Chandra Pandey v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-19
- **Case number:** Civil Misc. Writ Petition No. 13424 of 2010
- **Bench:** Amitava Lala, Acj Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-chandra-pandey-v-state-of-u-p-and-others-41488
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Public
Interest Litigation U.P. Punchayat Raj
Act 1947-Section 95(g)-suspension of
Gaon
Pradhan-on
allegation
of
construction of Punchayat Bhawan and
Jachcha Bachcha Hospital digging of
pond land on another Gaon Sabha land
already
in
progress-No
financial
irregularity
found-nor
the
village
Pradhan mis appropriated Gaon Sabha
and for his personal benefits-suggestion
given by Chief Development Officer
approved-petitioner
highlighting
irregularities in shape of PIL-held-liable
to be dismissed.

Held: Para 12

Therefore, the suggestion in the form of
letter, as given by the Chief Development
Officer,
seems
to
be
appropriate.
Therefore,
on
the
basis
of
that
suggestion of Chief Development Officer,
if the pond is being made, that can be
done
as
expeditiously
as
possible.
However, even having such suggestion
for construction of pond in a place other
than the place of pond which has been
converted for the public purpose, if the
writ petitioners feel aggrieved then it
clearly indicates that in the back of
making this writ petition, the public
interest is not there but some sort of
private interest is there, which cannot be
encouraged by the Court. It is well
settled that complainant cannot make
such petitions and hence on both the
accounts, we dismiss the writ petition
filed in the form of Public Interest
Litigation, however, without imposing
any cost considering the facts and
circumstances of the case.
Case law discussed:
(2001) 6 SCC 496, 2009 (3) UPLBEC 2868.

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the State Government to withdraw from
the acquisition but the Government
cannot be compelled or enforced to accept
the return amount of the compensation
received by the petitioner and to consider
and withdraw from the acquisition. No
judicial intervention can be made in the
domain of the State to apply its discretion
or exercise its powers of liberty to
withdraw its acquisition.

14. Considering the entirety of the
circumstances when already 80% of the
compensation has been received by the
petitioner and the discretion of the State
cannot be compelled in any way, there is
no force in the contention of the
petitioner.

15. The writ petition appears to be
not maintainable and therefore dismissed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2010

BEFORE
THE HON'BLE AMITAVA LALA, ACJ
THE HON'BLE ASHOK SRIVASTAVA, J.

Civil Misc. Writ Petition No. 13424 of 2010

Satish Chandra Pandey
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaubey

Counsel for the Respondents:
Sri Anuj Kumar
Sri H.N. Shukla
Sri R.K. Shukla on behalf of Gaon Sabha
C.S.C.

Constitution of India Art. 226-Public
Interest Litigation U.P. Punchayat Raj
Act 1947-Section 95(g)-suspension of
Gaon
Pradhan-on
allegation
of
construction of Punchayat Bhawan and
Jachcha Bachcha Hospital digging of
pond land on another Gaon Sabha land
already
in
progress-No
financial
irregularity
found-nor
the
village
Pradhan mis appropriated Gaon Sabha
and for his personal benefits-suggestion
given by Chief Development Officer
approved-petitioner
highlighting
irregularities in shape of PIL-held-liable
to be dismissed.

Held: Para 12

Therefore, the suggestion in the form of
letter, as given by the Chief Development
Officer,
seems
to
be
appropriate.
Therefore,
on
the
basis
of
that
suggestion of Chief Development Officer,
if the pond is being made, that can be
done
as
expeditiously
as
possible.
However, even having such suggestion
for construction of pond in a place other
than the place of pond which has been
converted for the public purpose, if the
writ petitioners feel aggrieved then it
clearly indicates that in the back of
making this writ petition, the public
interest is not there but some sort of
private interest is there, which cannot be
encouraged by the Court. It is well
settled that complainant cannot make
such petitions and hence on both the
accounts, we dismiss the writ petition
filed in the form of Public Interest
Litigation, however, without imposing
any cost considering the facts and
circumstances of the case.
Case law discussed:
(2001) 6 SCC 496, 2009 (3) UPLBEC 2868.

(Delivered by Hon'ble Amitava Lala, ACJ)

1. The petitioner is a complainant.
He filed a complaint satisfying the
provisions of Section 95 (g) of the U.P.
Panchayat Raj Act, 1947 (hereinafter
1 All] Satish Chandra Pandey V. State of U.P. and others
379
called the 'Act') read with the relevant
Rules framed thereunder. The main
allegation was that the elected Pradhan
has encroached a pond and illegally
constructed over it the Panchayat Bhawan
and Jachcha Bachcha Kendra. However,
the Pradhan of the Gram Panchayat
through his counsel has contended before
us that he has already been suspended and
challenging such order of suspension, a
writ petition being Civil Misc. Writ
Petition No. 16083 of 2009 has been filed
before
this
High
Court.
The
writ
petitioner herein is also a party to the said
writ petition.

2. So far as the pond is concerned, it
has been stated that no water is there in
the pond for a considerable long period
and in the record of consolidation the land
is recorded as such and not as a pond. The
concerned
Tehsildar
has
made
a
complaint to that extent. However,
learned
counsel
appearing
for
the
petitioner has contended before us that by
an order of the Division Bench dated
26.8.2008 passed in Civil Misc. Writ
Petition No. 43652 of 2008 (Vijmauti Vs.
Commissioner
Vindhyachal
Division
Mirzapur and others), an inquiry was
allowed to continue against the petitioner
of said writ petition. It is further recorded
that if it is found that construction was
illegal, appropriate amount be recovered
from the Gram Pradhan and Gram
Panchayat Adhikari. Demolition of Gram
Panchayat was also urged but the Court
held that the same is not warranted at this
stage and that will depend upon the result
of the inquiry.

3. However, by a letter dated 16th
February, 2010, the concerned Chief
Development Officer has directed that
there should be a digging for making a
pond upon some other land of Gram
Panchayat in the village in view of the
construction of Panchayat Bhawan and
the Maternity Home, as above. By filing
this writ petition, the writ petitioner
contended that whatever action is required
to be taken against the Pradhan that will
be under Section 95(g) of the Act and
rules. The writ petition has been filed only
for the purpose of having a pond which
has been illegally filled up. He has cited
before us a judgement of the Supreme
Court reported in (2001) 6 SCC 496
Hinch Lal Tiwari Vs. Kamala Devi and
others, relying upon the penultimate
paragraph, wherein it has been held that
"the person who has constructed a house
over and above a pond was directed to
take away materials of the house which
has been constructed on the said land. It
was further directed that if they do not
vacate the land, the official respondents
will demolish the construction and get the
possession of the land in accordance with
law. State respondents were directed to
restore the pond, develop and maintain
the same as a recreational spot which will
undoubtedly be in the best interest of the
villagers. Further it will also help in
maintaining
ecological
balance
and
protecting the environment in regard to
which the Supreme Court has repeatedly
expressed its concern. Such measures
must begin at the grass-root level if they
were to become the nation's pride".

4. Learned standing counsel has
cited two Division Bench judgements of
this Court wherein it was considered and
held that the import of the Hinch Lal
Tiwari's case (Supra) does not necessarily
mean that removal of a person, even a
trespasser,
can
be
made,
without
following the procedure. The reference of
these two judgements are dated 4th
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
September, 2009 and 24th November,
2009 passed in Civil Misc. Writ Petition
No. 45164 of 2009 and Writ Petition No.
61403 of 2009.

5. Learned standing counsel further
said on the basis of the report of A.D.M.
dated 30th September, 2009 that though
the land was recorded as pond but on an
inquiry he found that it is a land and the
developments are there from before
inclusive of Maternity Home which was
built up earlier.

6.

However,
learned
counsel
appearing for the petitioner has contended
that on the other hand, the A.D.M.
(Finance) by its report, Annexure No. 5 to
the
writ
petition,
has
stated
that
construction was wrongly made over the
land which is recorded as pond.

7. Against these backgrounds, it is
crystal clear before us that dispute with
regard to the land in question is still
existing and has not been finalized.
Moreover, the construction, which is now
available over the land, is not made for
any private purpose and by any private
party. A public office i.e. Panchayat
Bhawan and a Maternity Home have
already been constructed and if it is
demolished
without
proper
inquiry,
scrutiny and hearing to the parties in this
respect, it will also go against the public
interest. Therefore, both the Panchayat
Bhawan and the Maternity Home will also
be available not only for ecological
balance but also for public purposes.

8. Learned counsel appearing for the
Gaon Sabha has cited a judgement of
single Judge reported in 2009 (3)
UPLBEC 2868 Mohan Singh Vs. State
of U.P. and others to satisfy the Court. In
paragraph 5 of the said judgement, it has
been held that "complainant cannot be a
litigant he could be, at the most examined
as a witness in the inquiry but cannot be
permitted to become a party in the lis'. In
paragraph 6 of the judgement, it has been
further held that "A member of the Gaon
Sabha has been given a right to make a
complaint
along
with
the
affidavit
bringing to the notice that the allegations
of misuse of powers and irregularities.
The complaint, however, is not a
prosecutor. The matter thereafter rests
between the District Magistrate and the
Pradhan.

9. It is true to say that in this context
the District Magistrate is the proper
person to hold an inquiry and pass an
appropriate order. It is open for all the
parties to approach him. But, so far as the
ecological balance is concerned, the
suggestion which has been given by the
Chief Development Officer under its
order dated 16th February, 2010 will
serve the purpose.

10. According to the letter of Chief
Development Officer, a pond is required
to be dug immediately at a particular
place within the Gram Panchayat to avoid
the controversy. This can be done to
maintain the ecological balance as per the
said letter, which appears to be backed by
sound principles of law of ecological
balance.

11.

Now
a
days,
various
developments are being caused in the
urban and rural areas and for the sake of
constructions certain steps are being taken
by the authorities even for removing trees
and plants but the authorities or the court
of law are always directing to maintain
the ecological balance by placing plants at
1 All] Shiv Ram V. State of U.P. and others
381
appropriate places, which will maintain
the ecological balance so that both the
development as well as ecological balance
cannot be suffered.

12. Therefore, the suggestion in the
form of letter, as given by the Chief
Development
Officer,
seems
to
be
appropriate. Therefore, on the basis of
that suggestion of Chief Development
Officer, if the pond is being made, that
can be done as expeditiously as possible.
However, even having such suggestion
for construction of pond in a place other
than the place of pond which has been
converted for the public purpose, if the
writ petitioners feel aggrieved then it
clearly indicates that in the back of
making this writ petition, the public
interest is not there but some sort of
private interest is there, which cannot be
encouraged by the Court. It is well settled
that complainant cannot make such
petitions and hence on both the accounts,
we dismiss the writ petition filed in the
form
of
Public
Interest
Litigation,
however, without imposing any cost
considering the facts and circumstances of
the case.

13. In any event, passing of this
order will in no way affect the right of the
parties to approach the concerned District
Magistrate for a decision in this respect, at
the earliest.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 37681 of 2005

Shiv Ram

...Petitioner
Versus
State of U.P. Secy' Revenue U.P. and
others

 ...Respondent

Counsel for the Petitioner:
Sri R.S. Parihar
Sri B.D. Mishra
Sri D.K. Jaiswal
Sri Santosh Shukla

Counsel for the Respondents:
C.S.C.
Sri V.K. Chandel
Sri V.K.S. Chandel

Constitution of India-Art. 226-Recovery
of Salary-petitioner working as peon-by
impugned order dated 4.9.04-allowed to
work upto 31.08.2004 treating notionally
retire w.e.f. 01.07.1998 itself goes to
show
continuous
working
w.e.f.01.07.1998
to
31.08.04-No
allegation of concealment of fact or
fraud
by
petitioner-No
question
of
recovery of Salary given during those
period-direction for release of retirement
benefits within 3 months on basis of
impugned order itself-given.

Held: Para 6

From
the
impugned
order
dated
4.9.2004, it is evident that the petitioner
has been made to retire in fact on
31.8.2004 and notionally w.e.f. 1.7.1998.
It
is,
therefore,
evident
that
the
petitioner was allowed to continue in
service by the respondents between
1.7.1998 and 31.8.2004 during which
period he has performed his duty. There