Ashiq Ali vs State Of U.P. Thru. District ...
2023 Latest Caselaw 20842 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:52008
 
Court No. - 18
 
Case :- WRIT - C No. - 25705 of 2018
 
Petitioner :- Ashiq Ali
 
Respondent :- State Of U.P. Thru. District Magistrate Sultanpur And Ors.
 
Counsel for Petitioner :- Prashansa Singh,Saima Khan
 
Counsel for Respondent :- C.S.C.,Mohan Singh
 

 
Hon'ble Saurabh Lavania,J.

1. Heard Ms. Saima Khan, learned counsel for the petitioner, Shri Hemant Kumar Pandey, learned Standing Counsel for the State-respondents and Shri Mohan Singh, learned counsel for respondent no. 4.

2. The subject matter of the present petition relates to Section 67 of U.P. Revenue Code, 2006 (hereinafter referred to as 'Code, 2006') and by means of the present petition, the petitioner has impeached the show cause notice issued by respondent no. 3 i.e. Tehsildar, Tehsil- Lambhua, District- Sultanpur under the aforesaid provision after taking note of report of the concerned revenue inspector dated 6.4.2018.

3. The ground to challenge the show cause notice is limited. The show cause notice can be assailed/impeached before this Court under Article 226 of Constitution of India broadly on the following grounds:

.....a. If the notice is issued by an incompetent authority.

.....b. If the notice issued is in abuse of process of law.

.....c. If the the notice is issued with premeditation or prejudgment.

.....d. If the notice is barred by limitation.

.....e. If the notice is issued in violation of statutory provisions.

.....f. If the notice affects the Fundamental Rights as enshrined in Part III of ..........Constitution of India.

.....g. If vires of statutory provisions is in issue along with notice.issued therein.

4. In this case, admittedly, the appropriate authority to issue notice is respondent no. 3 i.e. Tehsildar, Tehsil- Lambhua, District- Sultanpur under the U.P. Revenue Code, 2006 (hereinafter referred to as "Code, 2006"). Thus, the show cause notice has been issued by the authority competent.

5. The other grounds which are factual in nature to the view of this Court are not required to be entered into as any observation of this Court on the same would prejudice the right of the parties before the concerned authority i.e. respondent no. 3. It is for the reason the notice, in issue, relates to 0.063 hectares of Gata No. 293M situated in Village and Pargana - Meeranpur, Tehsil-Lambhua, District-Sultanpur and earlier proceedings under Section(s) 122B and 123 of U.P. Zamindari Abolition and Land Reforms Act, 1950 against the petitioner were carried out in regard to 0.045 hectares of Gata No. 293M.

6. Taking note of the aforesaid as also the law laid down by this Hon'ble Court in relation to proceedings under Section 67 of Code, 2006 in the judgment dated 5.8.2018 passed in Writ C No. 6025 of 2021 (Satyendra Kumar Gupt and Ors. Vs. State of U.P.), this Court is not inclined to entertain the present petition. Accordingly, this petition is disposed of with a liberty to the petitioner to submit his detailed objection before the authority concerned within three weeks from today. The authority concerned upon receiving the same shall decide and conclude the proceedings within three months after taking note of law laid down in the judgment dated 3.8.2023 passed in Writ - C No. 6430 of 2023 (Shatrohan Vs. State of U.P. and 4 Others). The same are reproduced as under:

"A challenge has been made to the impugned order(s) on the ground that the procedure, which ought to have been followed by the opposite party No.4 at the time of passing of final order in the proceedings instituted under Section 67(1) of the Code of 2006, was not followed. In continuation, it is stated that the procedure, which should be followed, has been indicated by this Court in the judgment dated 02.12.2022 passed in the bunch of petitions, leading of which, is Writ C No.6658 of 2022 (Rishipal Singh vs. State of U.P. & 3 Others) reported in 2022 SCC OnLine All 829. A reference has been made to para 74 of the report of Rishipal Singh (Supra), which reads 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.""

7. The petitioner is directed to file an affidavit of undertaking before the Authority concerned that she would appear on each date fixed in the case and will not take any adjournment before the Authority concerned.

8. With the aforesaid, the petition is disposed of.

Order Date :- 7.8.2023

Mohit Singh/-

..............................................................(Saurabh Lavania,J.)