Hon’ble Amitava Lala, ACJ.—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 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 v. 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 judgment of the Supreme Court in Hinch Lal Tiwari v. Kamala Devi and others, (2001) 6 SCC 496, 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 judgments 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 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 pet