Ramesh Chand vs State Of U.P. And 3 Others
2023 Latest Caselaw 23353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172083
 
Court No. - 51
 
Case :- WRIT - C No. - 24414 of 2023
 
Petitioner :- Ramesh Chand
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dr. Akhilesh Kumar
 
Counsel for Respondent :- C.S.C.,Avinash Chandra Srivastava
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Dr. Akhilesh Kumar, Counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Avinash Chandra Srivastava for respondent no.4, Land Management Committee.

2. The instant petition has been filed for quashing the order dated 20.9.2022 passed by respondent no.2, Additional Collector (Administration), Agra in case No. 02221 of 2021 as well as the orders dated 19.9.2020 and 15.2.2021 passed by respondent no.3 in case No. 3709 of 2019.

3. Counsel for the petitioner submitted that proceeding under Section 67(1) of the U.P. Revenue Code, 2006 has been initiated against the petitioner and the order for ejectment and damages has been passed in ex-parte manner. He submitted that against the order for ejectment and damages, petitioner filed a restoration application on 28.11.2020 which was rejected by the Tehsildar vide order dated 15.2.2021 without considering the case set up by the petitioner in the restoration application. He further submitted that appeal filed by petitioner under Section 67(5) of the U.P. Revenue Code, 2006 has also been dismissed in the arbitrary manner without considering the point set up in the appeal and argued before the Appeal Court. Counsel for the petitioner further submitted that petitioner belongs to Scheduled Castes community and constructed the house about 50 years before. He further submitted that there is no any other accommodation available for the petitioner, as such, the order for ejectment and damages will cause irreparable injury to the petitioner. He further submitted that area of the plot No. 122 over which the petitioner is in possession and raised construction is 100 square meter which can be settled in favour of the petitioner. He further submitted that impugned orders have been passed in ex-parte manner, as such, the impugned order be set aside and matter be sent back to the authority to reconsider the petitioner's case in accordance with the provisions contained under the U.P. Revenue Code and the Rules framed thereunder.

4. On the other hand, learned Standing Counsel and Counsel for the Land Management Committee submitted that impugned orders for ejectment have been passed in accordance with law. He further submitted that petitioner has not appeared before the Court of Tehsildar, as such, the order was passed in accordance with law. He further submitted that no interference is required against the impugned order.

5. I have considered the arguments advanced by learned Counsel for the parties and perused the records.

6. There is no dispute about the fact that proceeding under Section 67(1) of the U.P. Revenue Code, 2006 has been initiated against the petitioner and order for ejectment and damages has been passed. There is also no dispute about the fact that restoration application filed by the petitioner has been rejected by the Tehsildar and the appeal filed by the petitioner has also been dismissed.

7. Since the petitioner is in possession of the plot for more than 50 years and the area of the plot is about 100 square meter, as such, the order for ejectment and damages passed by the Tehsildar in the proceeding under Section 67(1) without considering the case of the petitioner will cause irreparable injury to the petitioner.

8. The order passed by the Tehsildar demonstrate that petitioner has not been afforded opportunity of hearing before passing of the order of ejectment and damages against him. The Appellate Court has also maintained the order without considering the case of the petitioner.

9. This Court in the case reported in 2023 (1) ADJ 154 Rishipal Singh Vs. State of U.P. and 3 Others has considered the scope of Section 67 as well as 67-A of U.P. Revenue Code, 2006. Paragraph No. 74 of the judgment rendered in Rishipal Singh (Supra) is relevant for consideration 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 sub-rule 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 67A.

(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.

Rishipal Singh vs. State of U.P. and Ors. (02.12.2022 - ALLHC) : MANU/UP/4142/2022"

10. Considering the entire facts and circumstances as well as ratio of law laid down in Rishipal Singh (Supra), the impugned order dated 20.9.2022 passed by respondent nos. 2 and order 19.9.2020 as well as 15.2.2021 passed by respondent No.3 are liable to be set aside and the same are hereby set aside. Writ petition stands allowed in part and the matter is remitted back to the respondent no.3, Tehsildar, Tehsil-Fatehabad, District- Agra to decide the case under Section 67 (1) of U.P. Revenue Code, 2006 afresh after affording opportunity of hearing to the petitioner expeditiously preferably within period of four months from the date of production of certified copy of this order. It is provided to the petitioner to make proper application along with pleading before the authority under Section 67-A of the U.P. Revenue Code, 2006 for settlement of the plot in dispute in his favour.

Order Date :- 25.8.2023

PS*