The court emphasized that matters involving factual disputes and ownership rights over land are not suitable for resolution through a writ petition under Article 226 of the Constitution of India.

JUDGMENT :

Ravindra Maithani, J.

By means of the instant petition, the petitioner seeks the following reliefs:-

I. To issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 herein/District Magistrate Haridwar to consider the representation/application dated 13.3.2023 (Annexure no.6) filed by the petitioner herein within a stipulated period of time and further to remove the encroachment from the land Khasra no.16 area 0.2150 hectare of village Rajpur, Pargana Roorkee Tehsil & Distt: Haridwar which is being used for public purposes only.

II. To issue any other writ, order or direction or grant such other further relief in favor of the petitioner which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

III. Award the cost of the petition to the petitioner.

2. Heard learned counsel for the parties and perused the record.

3. It is the case of the petitioner that there is a mosque in Village Rajpur, Pargana Roorkee, Tehsil and District Haridwar. Adjacent to the mosque, there is a land bearing Khasra No. 16, area 0.2150 Hectare (for short, “the land”), which was recorded in the name of Mafi Khidmari Banam Masjid/Ahtam Chotan/Hussain Baksh/Niwasi Gram before 1360 Fasli. One Chotan was Bhumidhar with transferable rights of this land. He was devotee of the mosque and madarsa and the land was being used for namaz and other public purposes. Chotan died sometimes in the year 1973-74. The village Pradhan of village Rajpura manages the land, but according to the petitioner, some musclemen and goons are trying to encroach upon the land; they had made a road on it. The petitioner made representation for demarcation of the land, but no action was taken. Therefore, the petitioner seeks directions to the District Magistrate that he should consider the representation and remove the encroachment.

4. Learned counsel for the petitioner would submit that it is the land of public utility which is managed by the village Pradhan of village Rajpura. When encroachment was made, an application was given to the Sub Division Magistrate (for short, “SDM”) concerned, who forwarded it to the police to look into the matter. No action was taken on it, thereafter, the petitioner approached the District Magistrate, but nothing had happened.

5. It is a writ petition under Article 226 of the Constitution of India. What the petitioner seeks is, removal of encroachment from a private land; rights over land; rights to ownership; possession; the use of the land. What is being argued is that, an application was given to the SDM for demarcation. In fact, for that purpose, an application under Section 41 of the U.P. Land Revenue Act, 1901 may be filed which may be registered as a suit and decided accordingly. It is not a kind of executive action; it is a judicial action of the Assistant Collector 1st Class. The petitioner seeks that the encroachment may be removed. If some property belongs to some Gram Samaj or if the property is in the management of Gram Samaj and some person encroaches upon it, Gram Samaj itself is capable to institute a suit for dispossession or removal or encroachment. These all are much factual disputes. It cannot be decided in the writ petitions like the instant one. Therefore, this Court is of the view that the writ petition is not entertainable. Accordingly, the petition deserves to be dismissed at the stage of admission itself.

6. The petition is dismissed in limine.