Fanish Kumar vs Collector Sitapur And 3 Others
2022 Latest Caselaw 9493 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	Court No. - 7
 

 
Case :- WRIT - C No. - 4227 of 2022
 
Petitioner :- Fanish Kumar
 
Respondent :- Collector Sitapur And 3 Others
 
Counsel for Petitioner :- Harsh Verma,Vimal Kishore Verma
 
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Sri Abhinav Narain Trivedi, learned Chief Standing counsel appearing for the State-respondents.

2. Instant petition has been filed praying for the following main reliefs:-

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 21.04.2022 passed by Collector, Sitapur (opposite party no. 1) in case no. 1886/2021 computerized case no. D202110640001886 U/S 67 (5) of the U.P.Revenue Code, 2006 contained as Annexure No. 10 and impugned judgment and order dated 27.11.2020 passed by Assistant Collector/Tehsildar Mahmoodabad (opposite party no. 2) in case no. 00622/2019 computerized case no. T201910640600622 U/S 67 U.P Revenue Code, 2006 contained as Annexure No. 8 with the writ petition.

(ii) Issue a writ order or direction in the nature of mandamus commanding the opposite parties and directing them to not demolish the petitioner's house exist in Village Salona Bibipur, Pargana and Tehsil Mahmoodabad District- Sitapur and also not eject the petitioner in pursuance of the impugned orders, in the interest of justice.

3. A detailed order had been passed by this Court on 04.08.2022 which so far as it is relevant for the facts of the case is reproduced below:-

"7. Instant writ petition has been filed challenging the order dated 21.04.2022, a copy of which is Annexure-10 to the petition, passed by the Collector under Section 67(5) of the U.P. Revenue Code, 2006, by which the appeal filed by the petitioner under Section 67 (5) of the Code, 2006 has been dismissed. Also under challenge is the order dated 27.11.2020, a copy of which is Annexure-8 to the petition, passed by the Assistant Collector/Tehsildar under Section 67(3) of the Code 2006, by which the petitioner has been directed to be evicted from the land in dispute and a fine of Rs.638640/- has been imposed upon him.

8. Learned counsel for the petitioner contends that the proceedings under Section 67 of the Code were initiated against him, placing reliance on a report of the Lekhpal dated 10.01.2019 per which the encroachment of the petitioner over the land in dispute was apparent as per the authorities. The petitioner disputed the same and filed an application dated 23.04.2019, a copy of which is Annexure-6 to the petition, praying for conducting of a spot inspection over the land in dispute in order to indicate that he has not made any encroachment over the said land. The authority had entertained the said application, as would be apparent from perusal of the order dated 13.09.2019 from the order sheet, a copy of which has been filed as Annexure-7 to the petition, whereby the said application has been directed to be listed on 20.09.2019 for orders. Thereafter, only general dates have been given and the order has been pronounced on 27.11.2020. Being aggrieved, the petitioner filed an appeal before the Collector which was dismissed vide order dated 21.04.2022.

9. A perusal of the order dated 21.04.2022 would indicate that the appellate authority has also placed reliance on the inspection report dated 11.01.2019 to hold that the petitioner has been found to have encroached upon the land in dispute. The argument of learned counsel for the petitioner is that once the petitioner had filed an application for inspection of the land in dispute and disputed of he having encroached over the land in dispute vide his application dated 23.04.2019 and the Assistant Collector had also entertained the said application and had fixed the said application for orders on 20.09.2019, as such, without deciding the said application either way, the order of eviction and recovery could not have been passed. He also contends that this aspect of the matter has also not been considered by the appellate court.

10. Learned Standing Counsel prays for a day's time to seek instructions as to whether any orders have been passed on the inspection application of the petitioner dated 23.04.2019 and if so, to indicate the said order.

11. List this case on 06.08.2022 as fresh. "

4. In pursuance to the order dated 04.08.2022, learned Chief Standing counsel on the basis of instructions sent by Sub Divisional Magistrate, Mahmoodabad District- Sitapur and Tehsildar, Mahmoodabad, Sitapur submits that no orders were passed on the application filed by the petitioner dated 23.04.2019 & the same remained pending yet the competent authority proceeded to pass the order under Section 67 (3) of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as "Code, 2006") simply on the basis of the earlier inspection report dated 11.01.2019.

5. Once admittedly the petitioner had filed an application for an inspection which was also entertained by the authority be keeping the same on record then it was the duty of the authority concerned to have pass an order upon the same either way i.e either the said application could have been accepted or rejected. However, the authority has proceeded in a patently non-judicious and cavalier manner by keeping the said application filed by the petitioner on record, not passing any order upon the same and thereafter proceeding to pass an order under Section 67 (3) of the Code, 2006 whereby evicting the petitioner and imposing an amount of Rs.6,38,640/- as fine. Thus, it is apparent that there has been patent non-application of mind and casual approach on the part of the authority concerned. The law is well settled that justice should not only be done but seem to have been done. In case the authority was of the view that the application filed by the petitioner dated 23.04.2019 was not maintainable or misconceived, an order could have been passed on the same but the modus adopted by the authority concerned of simply keeping the application on record, not passing any order upon the same and despite existence of the said application on record, proceeding to pass the impugned order of eviction and imposition of penalty or fine cannot be countenanced in any manner. The appellate authority has also failed to consider this aspect of the matter with the result that the petitioner has approached this Court by means of the instant petition. Had the authority acted vigilantly and proceeded to decide the application of the petitioner perhaps the subsequent proceedings may not have arisen whereby wasting the time of this Court while exercising jurisdiction under Article 226 of Constitution of India more particularly when, as repeatedly observed by this Court, the High Court is deluged with petitions pertaining to revenue matters.

6. Considering the aforesaid, the writ petition deserves to be allowed and is allowed. The impugned orders dated 21.04.2022, a copy of which is annexure 10 to the petition and order dated 27.11.2020, a copy of which is annexure 8 to the petition are quashed. As the non-judicious and cavalier approach on the part of the authority concerned has already been observed by this Court, accordingly a cost of Rs. 10,000/- is imposed upon the Assistant Collector/ Tehsildar, Mahmoodabad, Sitapur initially to be paid by the State to the petitioner within a month from today leaving it open for the State to recover the cost from then Assistant Collector/ Tehsildar who had passed the impugned order dated 27.11.2020. The competent authority shall proceed to decide the matter under Section 67 of the Code, 2006 in accordance with law preferably within a time fixed under the Code, 2006.

7. Before parting with the matter, the Court also takes a judicial note of the fact that the notice that had been issued to the petitioner dated 11.02.2019 in R.C. Form-19, a copy of which is annexure 3 to the petition, indicates that the alleged encroachment has continued for a period of 20 years. Long continuance of the encroachment without the officers responsible for preventing such encroachment over Gaon Sabha land/ public purpose land for decades together reflects patent carelessness, casual and cavalier approach on the part of the authority concerned who are responsible for ensuring that no encroachment takes place. This aspect of the matter has been examined by this Court in Writ-C No. 4521 of 2022 in re: Doodh Nath Yadav vs. State of U.P. and others wherein the Court has indicated as under:-

"The first aspect of the matter is that the proceedings under Section 67 of the Code, 2006 have been initiated in the year 2019. A perusal of the order dated 30.12.2021 would indicate that the petitioner has encroached upon the land 20 years earlier i.e. he was an encroacher for a period of 20 years. Further, the order indicates that the petitioner has encroached upon the Gaon Sabha land by building a boundary wall and a building. The impugned order dated 30.12.2021 itself records that two years earlier (prior to passing of the order) the boundary wall has been removed. However, the order is completely silent as to the building which is said to have been constructed over the aforesaid land more particularly when the fact of a building having been made specifically finds place in the order dated 30.12.2021. Obviously the alleged encroachment for about 20 years prima facie could not have continued without active connivance of the officials who were responsible for removal of the said encroachment. Waking up after 20 years and thereafter proceeding to demolish the alleged encroachment though laudable yet would require the authorities to explain as to which of the officials were in active connivance and did not ensure that Gaon Sabha property is not encroached.

Considering the aforesaid, let the Principal Secretary (Revenue) himself enquire into the matter on the aforesaid points including ascertaining the liability/guilt of the officials who were responsible for preventing encroachment over Gaon Sabha land yet encroachment was made and as to the action which is proposed to be taken against such officials after identifying them.

Let the preliminary enquiry be completed within four weeks from today and a personal affidavit of the Collector, Sitapur, be filed in this regard within next two weeks thereafter.

Meanwhile, learned Standing Counsel shall seek instructions as to how the service of notice of the proceedings under Section 67 of the Code, 2006 was made on the petitioner.

List this case in the next week as fresh. "

8. Accordingly, considering the aforesaid order passed in the case of Doodh Nath Yadav (supra) the Court directs the Principal Secretary (Revenue) to enquire in to the matter on the alleged encroachment having continued for a period of 20 years without any action having been taken by the authorities concerned for prevention of such encroachment and to ascertain the liability/guilt of the officials who were responsible for preventing encroachment over Gaon Sabha land yet encroachment was made and as to the action which is proposed to be taken against such officials after identifying them.

9. Let the preliminary enquiry be completed within four weeks from today and a personal affidavit of the Collector, Sitapur, be filed in this regard within next two weeks thereafter.

10. As such, this case would be listed only for the purpose of submission of affidavit as aforesaid.

11. List this case on 12.10.2022.

Order Date :- 6.8.2022

Pachhere/-