Advocates:
['RAVINDRA KUMAR TRIPATHI', '', 'MUKESH KUMAR PANDEY', 'C S C', '', 'SHIV KUMAR PAL', 'SUSHIL KUMAR PAL']

Court No. - 39

Case :- WRIT - C No. - 8971 of 2017

Petitioner :- Jagdish Chandra Pathak

Respondent :- State Of U.P. And 6 Others

Counsel for Petitioner :- Ravindra Kumar Tripathi,Mukesh Kumar

Pandey

Counsel for Respondent :- C.S.C.,Shiv Kumar Pal,Sushil Kumar Pal

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vipin Chandra Dixit,J.

The petitioner herein seeks to challenge the order dated

28.1.2017 passed by the Sub Divisional Magistrate, Tehsil

Chail, Kaushambi, whereby the representation moved by the

petitioner for restoration of Rasta on the spot in dispute has

been decided. The finding recorded in the order impugned is

that in the Sajra of the disputed plot of the year 1964, a Rasta

(Marg) has been shown by dotted line, however, the width of

the Rasta has not been shown in the Sajra. Further in Sajra

prepared in the year 2002-03, though the disputed place has

been shown as Rasta but its width has not been indicated

therein. On the spot inspection it was found that an open drain

was existing on the spot and in case the same is covered, the

spot in question can be used as Rasta. A direction has been

issued by the Sub Divisional Magistrate, Chail, Kaushambi to

the Executive Officer, Nagar Panchayat, Sarai Akil, Kaushambi

to cover the open drain in such a manner that the same can be

used for drainage of water and the way over it can be used as

Rasta. While passing this order it was directed to the rival

parties not to make any permanent or temporary construction

over the spot in question so as to change the nature of the Rasta

on the spot. This order is being challenged in the present writ

petition with the contention made by the learned counsel for the

petitioner that the existing Rasta on the spot was actually 7 feet

in width but it has been reduced by illegal encroachment raised

by the private respondent nos.5 to 7.

The contention in the writ petition is not supported by any

material document on record so as to call the response of the

respondents at this stage. However, from the averments made in

the writ petition and the contents of the impugned order, it is

evident that the dispute is in factual in nature and enquiry,

therefore, cannot be conducted under Article 226 of the

Constitution of India. It is, however, kept open for the petitioner

to file a civil suit seeking for appropriate relief against the

private respondent nos.5 to 7 by impleading the Nagar

Panchayat, Sarai Akil, Kaushambi, if it is necessary party in the

same. In case such a suit is filed, the same shall be decided

independently without being influenced by any of the

observations made hereinabove.

The writ petition is accordingly, disposed of.

Order Date :- 5.1.2023

Kpy

Digitally signed by :-

KAVLESHWAR PRASAD YADAV

High Court of Judicature at Allahabad