Allahabad High Court
Mahabali vs State Of U.P. And 3 Others on 11 August, 2021
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- WRIT - C No. - 11020 of 2021
Petitioner :- Mahabali
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ashok Kumar Singh
Counsel for Respondent :- C.S.C.,Pradeep Singh
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the respondents and have perused the record.
Present petition has been filed challenging the impugned orders dated 26.3.2018 and 30.1.2021.
At the very outset, learned counsel for the petitioner states that the controversy involved in the present writ petition is fully covered by a decision of this Court dated 6.8.2021 passed in Writ-C No. 11074 of 2021 (Rapati vs. State of UP and 3 others)
The said judgement dated 6.8.2021 is quoted hereinunder:-
"The trial court by the impugned order passed in proceedings under Section 67 of the U.P. Revenue Code, 2006 has directed to evict the petitioner from the state land which was encroached upon. The appellate court has affirmed the order passed by the trial court.
Sri Ashok Kumar Singh, learned counsel for the petitioner submits that the order of the learned trial court was ex parte as is evident from a reading of the impugned judgment. Secondly, there is a contradiction in the order passed by the court of first instance whereby the eviction was to remain subject to the proceedings under Section 38 of the U.P. Revenue Code, 2006. The appellate court did not return any findings on the same.
Both the submissions are made on the basis of bare reading of the impugned judgments. In such view of the matter the learned Standing Counsel as well as Sri Ritesh Kumar, learned counsel holding brief of Sri Pradeep Singh, learned counsel for respondent No. 4 Gaon Sabha could not dispute the aforesaid submissions.
Heard learned counsel for the parties.
The impugned order passed by the Tehsildar Judicial, Bhadohi dated 22.05.2018 records that the hearing happened in the absence of the counsel for the petitioner. This finding of fact was neither adverted to nor reversed by the appellate court.
There is merit in the contention of the learned counsel for the petitioner that the order dated 22.05.2018 was ex parte to the petitioner. The judgment of the trial court is in violation of principle of natural justice. The appellate court has failed to redeem the illegality.
The court of first instance also recorded that the proceedings for correction of maps under Section 38 of the U.P. Revenue Code, 2006 initiated by the petitioner are on foot before the competent court. The impugned order dated 22.05.2018 holds that the order itself is subject to the decision in the proceedings under Section 38 of the U.P. Revenue Code, 2006. However, the learned appellate court neglected to return any finding on the aforesaid issue. This reflects non application of mind.
In the wake of preceding discussion the impugned orders dated 22.05.2018 passed by the learned trial court as well as the order dated 30.01.2021 rendered by the appellate court are liable to be set aside and are set aside.
Interest of justice will be served by issuing the following directions:
(1) The competent court where the proceedings under Section 38 of the U.P. Revenue Code, 2006 registered as T201816670501146 Rajpati and others Vs. State of U.P. and others are pending is directed to conclude the proceedings within a period of four months from the receipt of copy of this order downloaded from the official website of the High Court of Judicature at Allahabad. The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing in accordance with law after hearing all necessary parties.
(2) If necessary the court below shall proceed with the hearing of the case registered as T201816670501146 under Section 38 of the U.P. Revenue Code, 2006 on day to day basis to ensure that the proceedings are concluded within stipulated period of four months.
(3) The court where the proceedings under Section 38 are pending is directed to transmit the records of the aforesaid case as well as the final judgment to the court of Tehsildar ,Judicial, Bhadohi after the final judgment is rendered.
(4) The Tehsildar, Judicial Bhadohi is directed to take out appropriate proceedings under Section 67 of the U.P. Revenue Code, 2006 depending upon the decision rendered by the court in the proceedings under Section 38 of the U.P. Revenue Code, 2006.
Learned Standing Counsel shall transmit a copy of this order to the Collector, Bhadohi, Sant Ravids Nagar, Bhadohi .
The court deciding proceedings under Section 38 of the U.P. Revenue Code, 2006 as well as the Tehsildar, Judicial Bhadohi shall submit their respective affidavits of compliance before the Collector, Bhadohi, Sant Ravidas Nagar, Bhadohi. The Collector, Bhadohi, Sant Ravids Nagar, Bhadohi shall also peruse the same considering the fact that ponds are most vital natural resources and are most vulnerable to encroachment and are being relentlessly depleted. This is causing irreversible damage to the environment. The Collector, Bhadohi, Sant Ravids Nagar, Bhadohi shall ensure compliance of this order.
The writ petition is disposed of."
Learned counsel for the petitioner, by drawing attention to paragraph 4 of the petition, submitted that name and parties of the proceedings under Section 38 of the UP Revenue Code, 2006 is the same as mentioned on the second page in para 1 and 2 of the above quoted order and therefore, it is clear that the controversy involved relates to same piece of land which has been alleged to have been recorded as pond.
Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the respondents could not dispute the aforesaid position.
Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 6.8.2021 as quoted above. The impugned orders dated 26.3.2018 and 30.1.2021 are hereby quashed.
Learned counsel for the petitioner is directed to file a copy of this order before the authority within a period of 15 days from today so that necessary steps may be taken.
Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the respondents may also forward a copy of this order to the authority concerned for necessary action.
No order as to costs.
Order Date :- 11.8.2021
Abhishek
