Neutral Citation No. - 2025:AHC-LKO:8796-DB Court No. - 2 Case :- WRIT - C No. - 111 of 2025 Petitioner :- Dinesh Kumar Tiwari Respondent :- State Of U.P. Thru. Its Addl. Chief Secy. Deptt. Lko. And 5 Others Counsel for Petitioner :- Satyendra Kumar Tiwari Counsel for Respondent :- C.S.C.,Jaganniwas Mishra,Mohan Singh Hon'ble Rajan Roy,J. Hon'ble Om Prakash Shukla,J. 1. Application for impleadment filed today is taken on record. 2. Heard. 3. This is a writ petition by the petitioner, Dinesh Kumar Tiwari, seeking a writ of mandamus commanding the opposite parties to ensure completion of the construction work of drainage as per work plan sanctioned by the Kshetra Panchayat Amethi in respect of Village Panchayat Purabgaon, Amethi from the house of the petitioner to the outside of village in the interest of public at large/villagers. 4. The contention of the petitioner is that for the outlet of water and waste from houses of villagers, a drain was required and construction of which was sanctioned, however, on account of opposition of some of the persons after the tender process had been floated and the work had been commenced, the same was stopped. This led to water logging in front of the house of the petitioner as also gathering of waste, hence this petition. 5. On 08.01.2025, we had passed the following order:- "1. Heard. 2. The construction of a drain was initiated and it was also undertaken substantially, however, thereafter the construction has been stopped and has not been completed. 3. The standing counsel says that a complaint was made by villagers that if the drain is constructed at the existing place where it is being undertaken, then, there will be water logging in front of a very old temple and this will create hindrances for the worshipers in organizing festivals, etc. at the temple. The standing counsel says that the authorities are agreeable to dig a soak-pit so as to avoid this situation which will redress the grievance of the petitioner, however, the counsel for the petitioner says that soak-pit is proposed to be dug in front of the house of the petitioner which should not be done, as, it will not be hygienic. 4. In view of the aforesaid, we direct the opposite party no. 4, Block Development Officer, Block, Tehsil and District Amethi, to hold talks with the villagers and the petitioner to find out an amicable solution to the problem which satisfies all the concerned parties and file his report before the Court by the next date in this regard. 5. The writ petition shall now come up before the Court on 11.02.2025, as fresh. 6. The Block Development Officer and the Gram Pradhan concerned should join these proceedings through Video Conferencing so as to facilitate resolution of the dispute. 7. The counsel for the Gaon Sabha shall communicate our order to the Gaon Sabha concerned. 8. On the next date, the Block Development Officer shall place before the Court a map clearly delineating the situation of the place where the drain was being constructed and the temple, the distance between the two, as also the situation of the house in this context and the distance from the drain and the temple. The map shall also indicate the place where the soak-pit is proposed to be dug. Any construction existing on the adjoining land i.e. the land adjoining the house of the petitioner, the drain and the temple would also be shown in the map for convenience of the Court. Photographs and videography of the place should also be produced." 6. In response to our order, the Block Development Officer, Shri Vinay Kumar is present. He has also submitted a report dated 08.01.2025 alongwith six annexures all of which are taken on record. 7. From the report what comes out is that after passing of the aforesaid order, a team was constituted by the Sub- Divisional Magistrate vide his order dated 17.01.2025 and the team of revenue officials headed by Revenue Inspector, Maharajpur and comprising of Halka Lekhpal and two other Lekhpals. The Block Development Officer gave notice of proposed spot inspection to the petitioner and Shri Mata Prasad Tiwari and other villagers. In pursuance thereof, an inspection took place on 04.02.2025. The spot memo is Annexure-5 to the said report. Part of the said report is a map of the spot prepared by the revenue team. Khataunis of relevant gatas have also been annexed, some photographs have been annexed with regard to the spot inspection and the measurement exercise undertaken in pursuance to our order. Copy of the plaint of suit bearing No.913/2024 filed by the applicant, Shri Mata Prasad Tiwari who seeks impleadment in this proceedings, has also been annexed; copy of the orders passed in the said suit proceedings have been annexed; and Commissioner's report has also been annexed. Some of these documents have also been brought on record by Shri Mata Prasad Tiwari, who seeks impleadment, such as the Commissioner's report, the plaint etc. Now, as per the said report of the Block Development Officer and the map annexed with it, the distance from the temple from the spot where the drainage is to be constructed or is to pass through in front of the temple is at 7.5 meters, which is marked as 'AB' in the map, at another point it is 4 meters, which is marked as 'CD' and at yet another point it is 4.25 meters, which is marked as 'EF'. In between is a Khadanja Marg meaning thereby between the boundary of the temple and the proposed drain, there is a Khadanja Marg and the minimum distance is 4 meters, the maximum is 7.5 meters. 8. As per the report, the construction of the drain was started but was stopped on account of opposition of Shri Mata Prasad Tiwari and some other villagers though others were agreeable to its constructions. The said drain is proposed to be constructed on gata Nos. 790(Navin Parti), 775(Banjar), 774(Rasta) and 773 (Banjar). Moreover, the drain is to be constructed underground and it shall be covered appropriately keeping in mind the hygiene and welfare of the people around. The drain does not pass through any bhumidhari land. It does pass through a land bearing gata No.774 which is recorded as road but then it is undergournd, therefore, the rasta will not be affected. The water and other waste from the houses would go through the drain to the soak-pit which is on gata No.773 (Banjar). In fact the water and waste from the house of Shri Mata Prasad Tiwari, which is situated near the soak-pit also goes in the same soak-pit at gata No.773. The soak-pit is far off from the temple as is evident from the map. The report of the Block Development Officer clearly mentions as under:- " उक ननलल कन ननरनरण भभनरगत ननलल कक रप रम नकयन जननन पसतननवत हह जजससक नक यनचल एवव अनय गनर वनजसयय कक घर कन गनदन पननल गनटन सवखयन 773 रम सससत गडक रम चलन जनयकगन, तसन यनचल एवव आस- पनस अवसससत अनय रकननय कक सनरनक जल भरनव कक सरसयन कन भल सरनधनन हह जनयकगन। उक ननलल कक ननरनरण सक आर गनर वनजसयय कक रसनदर आनक- जननक रम नकसल भल पकनर कन कहई वयवधनन नहह उतपन हहगन बसलक रसनदर कक सनरनक लगक हहए नल एवव हहणडपमप सक ननकलनक वनलक पननल कन भल ननसतनरण इसल ननलल कक रनधयर सक हह जनयकगन।" 9. The report says that Shri Mata Prasad Tiwari and certain other persons are unnecessarily creating obstruction and opposing the construction of the drain though it is for the benefit of all the villagers and will benefit the said persons also. The temple and the activities being carried out in the temple would not be affected adversely in any manner whatsoever. 10. We have perused the map. As already stated the drain is to be constructed by the side of the road on the gatas referred hereinabove and there is sufficient distance between the temple and the proposed drain. Moreover, once the drain is covered then none of the temple activities would be affected. We however, make it further clear that while undertaking the construction of the drain so far as it will be constructed in front of the temple premises from point 'G' to 'A' in the map prepared by the Block Development Officer, the drain shall be completely covered and if any opening is to be given in the drain, it shall be outside the aforesaid area and not in front of the temple. 11. We have perused the plaint pertaining to the suit filed by the applicant, Shri Mata Prasad Tiwari, the suit property is marked as 'अ' 'ब' 'स' 'द' 'य' 'र' and it only comprises the temple premises as already noticed. The drain is not to be constructed on the temple premises. In fact after the temple premises, there is a road and then the drain is to be constructed, therefore, the land on which the drain is to be constructed or the drain itself is not the subject matter of the aforesaid suit, therefore, the aforesaid construction of the drain does not affect the subject matter of the suit nor the suit proceedings and the rights of the Shri Mata Prasad Tiwari or any other person therein and Shri Mata Prasad Tiwari was also present during the exercise conducted by the revenue team and has signed the spot memo. 12. In view of the above discussion, we find absolutely no impediment in construction of the drain, which is in larger public interest of the villagers including the petitioner herein and the applicant, Shri Mata Prasad Tiwari. We have heard the counsel for Shri Mata Prasad Tiwari, Shri J.N. Mishra, he has invited out attention to page No.22 of the application to submit that the petitioner has encroached upon certain gatas i.e. gata No.774 and 775. If it so, then the Gaon Sabha or any person, who may have a locus, can initiate proceedings for removal of such encroachment. Our order will not come in the way. However, at this stage, counsel for the petitioner submitted that the notices, which were issued to the petitioner under Section 67 of the U.P. Revenue Code, 2006, have been discharged by the Tehsildar on 01.01.2025. If it so, then nothing is required to be done except may be, if it is permissible, to challenge the said order, which is taken on record. 13. The application for impleadment of Shri Mata Prasad Tiwari is disposed of with a right of hearing as aforesaid. 14. We dispose of this writ petition with the observation/direction that the concerned constructing agency shall undertake the construction of the drain as mentioned in the map by the Block Development Officer (not otherwise). The Block Development Officer shall communicate our order as also his report dated 08.01.2025 and the map prepared by him to the concerned officials of the Kshetra Panchayat and to the Sub Divisional Magistrate and Station House Officer of Police Station-Amethi for ensuring compliance. Shri Mata Prasad Tiwari or any other villager will not create any hurdle whatsoever in construction of the drain and, if any, such hurdle is created then the local police and district authorities shall immediately respond and take appropriate action, however, our order nor the construction of the drain in any manner affects the temple premises and any property situated within the premises. The videograpy prepared by the Block Development Officer regarding the exercise conducted shall be retained by him and the photographs have already been filed here. [Om Prakash Shukla, J.] [Rajan Roy, J.] Order Date :- 11.2.2025 -Piyush- Digitally signed by :- PIYUSH YADAV High Court of Judicature at Allahabad, Lucknow Bench