Satendra Kumar And 2 Others vs State Of U.P. And 4 Others
2023 Latest Caselaw 20824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:157663
 
Court No. - 51
 

 
Case :- WRIT - C No. - 12567 of 2023
 

 
Petitioner :- Satendra Kumar And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Somendra Singh
 
Counsel for Respondent :- CSC,Hari Narayan Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1.Heard Mr. Sunil Singh, Counsel for the petitioners, Mr. Abshishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sanjay Kumar Singh, Counsel for respondent No.5/ Nagar Panchayat.

2.The instant writ petition has been filed for following relief:

"(i) issue a writ,order or direction in the nature of certiorari to quash the impugned order dated 12.10.2021 passed by the respondent No.4 and impugned order dated 27.03.2023 passed by the respondent No.2.

(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents authorities to maintained to peace over the Gata in question and do not dispossess the petitioners from the aforesaid Gata in question Gata No.5895/0.0240 and 5896/0.0570, which is situated Gram Sabha/ Nagar Panchayat Mohammadabad, Tehsil-Sadar, District-Farrukhabad."

3. Counsel for the petitioners submitted that proceedings under Section 67 of U.P. Revenue Code, 2006 has been initiated and conducted in ex-parte manner. He further submitted that plot in dispute was ordered to be recorded as non agricultural land in the proceeding under Section 143 of the U.P.Z.A. & L. R. Act on 04.11.2006. He further submitted that new number of plots are 5859 and 5896. He further submitted that rice mill of the petitioners is situated over the plot in dispute since 2001. He next submitted that Tehsildar has decided the matter during Covid-19 Pendemic, as such there was no proper opportunity of hearing to the petitioners and the order for ejectement and damages has been passed on 4.11.2006. He further submitted that petitioners were advised to file revision under Section 210 of U.P. Revenue Code, 2006 before the Commissioner and the Additional Commissioner vide order dated 27.03.2023 dismissed the revision in arbitrary manner. He next submitted that in view of the declaration made under Section 143 of the U.P.Z.A. & L. R. Act, land in dispute has been declared as abadi vide order dated 17.09.2006 as such instant proceeding under Section 67 of U.P. Revenue Code, 2006 is not maintainable.

4. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sanjay Singh, counsel for Nagar Panchayat submitted that land in dispute i.e. Plot Nos.5559 and 5596 are recorded as chak marg and Nali in the revenue record. They further placed the copy of the order dated 20.05.2023 in order to demonstrate that land in dispute are recorded in the revenue entry as chak marg and nali. He further submitted the aforementioned entry has attained finality and village has been de-notified under Section 52 of U.P.C.H. Act. They further submitted that proceeding under Section 67 of U.P. Revenue Code, 2006 was rightly initiated and decided in accordance with law taking into consideration of revenue entry of the plot in dispute. They next submitted that no right will accrue to the petitioners in view of the final entry of the plot in dispute and writ petition is liable to be dismissed.

5. I have considered the submission advanced by the counsel for the parties and perused the record.

6. There is no dispute about the fact that proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated and the order for ejectement and damages has been passed by Tehsildar vide order dated 04.11.2006. There is also no dispute about the fact that in place of filing appeal under Section 67 (5) of U.P. Revenue Code, 2006 petitioners filed revision under Section 210 of U .P. Revenue Code, 2006 which has been dismissed by the Additional Commissioner vide order dated 27.03.2023.

7. So far as the disposal of the proceeding under Section 67 of U.P. Revenue Code, 2006 is concern, this Court in the case of Rishipal Singh Vs. State of U.P. & Others 2023 (1) ADJ 154 considered the scope of the proceeding under Sections 63, 67A & 67 (5) & 69 (5) of the Revenue Code, 2006. Paragraph No.74 of the judgment is relevant for perusal which is as under:-

74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager:

(i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis.

(ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of subrule 1 Rule 67.

(iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted alongwith RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above.

(iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved.

(v) In the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same alongwith the matter under Section 67, without requiring aggrieved party to move separate application under Section 67-A.

(vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him.

(vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner.

(viii) In case of appeal under Section 67(5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed alongwith interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67-A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant.

(ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation.

8. In the instant matter, Tehsildar has decided the dispute without giving proper opportunity of hearing to the petitioners and the revision filed by the petitioners has been also dismissed by passing cryptic order without considering the case of the petitioners as pleaded and argued before the revisonal court.

9. Considering the facts and circumstances of the case, the impugned order dated 12.10.2021 passed by respondent No.4 and 27.03.2023 passed by respondent No.2 are liable to be set aside and are hereby set aside. The writ petition stands allowed in part and matter is remitted back before respondent No.4 to decide the aforementioned proceeding under Section 67 of U.P.Revenue Code, 2006 afresh in accordance with law expeditiously preferably within a period of four months from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties. The Tehsildar shall follow the ratio of law laid down by this Court in the case of Rishipal Singh (Supra) while deciding the dispute under Section 67 of U.P. Revenue code, 2006 as mentioned above.

Order Date :- 7.8.2023

PS*