Ravindra Singh vs State Of U.P. And 3 Others
2023 Latest Caselaw 23557 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:173302
 
Court No. - 51
 

 
Case :- WRIT - C No. - 23449 of 2023
 

 
Petitioner :- Ravindra Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Abhay Singh
 
Counsel for Respondent :- C.S.C,Sher Bahadur Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Abhay Singh, Counsel for the petitioner, Mr. Santosh Kumar Mishra, learned Standing Counsel for the State-respondents and Mr. Sher Bahadur Singh for respondent no.4, Land Management Committee.

2. The instant petition has been filed for the following reliefs:-

" (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.6.2023 passed by the respondent no.2, Additional District Magistrate (Judicial), Bareilly Division, Bareilly in Appeal No. 257 of 2023, Computerized case No. D202312610000257 (Ravindra Singh Vs. Bhumi Prabandhak Samiti) filed under Section 67 (5) of U.P. Revenue Code, 2006 as well as the impugned order dated 1.7.2022 passed by the respondent no.3, Assistant Collector/ Tehsildar, Tehsil- Tilhar, District- Shahjahanpur in case No. 10365 of 2021, Computerized case No. T202112610310365 (Gram Samaj Vs. Ravindra Singh).

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities not to dispossess the petitioner from the land in question in pursuance of the impugned order dated 1.7.2022 passed by the respondent no.3, Assistant Collector/ Tehsildar, Tehsil- Tilhar, District- Shahjahanpur in case No. 10365 of 2021, Computerized case No. T202112610310365 (Gram Samaj Vs. Ravindra Singh)."

3. Brief facts of the case are that plot Nos. 113, 114 and 122 situated in Village Simauri, Pargana Jalalpur, Tehsil- Tilhar, District- Shahjahanpur are recorded as Class 6-4 (manure pit). Plot Nos. 76, 111, 112 and 179 situated in the aforementioned Village Simauri are the bhoomidhari plot of the petitioner and co-sharer. Copy of the khatauni has been annexed along with the writ petition as Annexure No. A-1 to the writ petition. The proceeding under Section 67 of the U.P. Revenue Code, 2006 has been initiated in respect to the plot Nos. 113 and 114 treating the petitioner's construction in plot Nos. 113 and 114. Tehsildar has passed the order 1.7.2022 for ejectment and damages against the petitioner without affording proper opportunity of hearing. Petitioner filed an appeal under Section 67 (5) of U.P. Revenue Code, 2006 which has been dismissed vide impugned order dated 20.6.23 hence this writ petition.

4. Counsel for the petitioner submitted that petitioner is bhoomidhar of plot Nos. 76, 111, 112 and 179 and the proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated in respect of the plot Nos. 113, 114 and 122 treating the petitioner's possession/ construction in plot Nos. 113, 114 and 122. He submitted that Tehsildar has decided the proceeding in ex-parte manner, as such, petitioner filed an appeal taking specific ground that petitioner's construction is situated in plot Nos. 111 and 112 but without making proper survey and demarcation of the plot in dispute, the order for ejectment and damages has been passed against the petitioner treating the petitioner's construction in plot Nos. 113, 114 and 122. He submitted that there is no adjudication of the actual dispute involved in the matter and the authorities are adamant to demolish the petitioner's construction which is situated in his bhoomidhari plot Nos. 111 and 112. He further placed reliance upon the judgment of this Court reported in 2023 (1) ADJ 154 Rishi Pal Singh Vs. State of U.P. and Others in order to demonstrate that proceeding under Section 67 as well as 67 (5) of U.P. Revenue Code, 2006 are to be decided after affording opportunity of hearing to the parties concerned as well as after making proper survey and demarcation of the plot in dispute specially when the person in possession of the plot is denying his possession over the plot of public utility rather he is alleging to be in possession of adjacent plot which belong to him in dispute. He submitted that impugned order be set aside and proceeding be dropped against the petitioner.

5. On the other hand, Mr. Santosh Kumar Mishra, learned Standing Counsel for the State-respondents and Mr. Sher Bahadur Singh, learned Counsel for Land Management Committee submitted that plot in dispute are recorded as public utility plot, as such, no right will accrue to the petitioner. He further submitted that following the procedure of law, the order for ejectment and damages has been passed against the petitioner, as such, no interference is required in the matter.

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

7. There is no dispute about the fact that order for damages and ejectment has been passed against the petitioner in respect to plot Nos. 113, 114 and 122 treating the petitioner's construction in the aforementioned plot. There is also no dispute about the fact that appeal filed by the petitioner has also been dismissed.

8. In order to appreciate the controversy involved in the matter, the perusal of Paragraph No. 74 of the judgment rendered in Rishi Pal Singh (Supra) will be relevant which is as follows:-

"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."

9. In the instant matter, admittedly, there is no adjudication of the dispute with respect to the objection of the petitioner that his construction is situated in his bhoomidhari plot Nos. 111 and 112 but the order for ejectment and damages has been passed against the petitioner treating the petitioner's construction in plot Nos. 113, 114 and 122. There should be proper survey/ demarcation of the plot in dispute before passing the order of ejectment and damages against the person who has disputed his possession over the plot in dispute.

10. Considering the entire facts and circumstances of the case as well as ratio of law laid down in Rishi Pal Singh (Supra), the impugned order dated 20.6.2023 passed by respondent no.2 and order dated 1.7.2022 passed by respondent no.3 are liable to be set aside and the same are hereby set aside. The writ petition is allowed in part and matter is remitted back before respondent no.3, Tehsildar, Tehsil- Tilhar, District- Shahjahanpur to register the proceeding on its original number and decide the same afresh on merit after affording proper opportunity of hearing to the petitioner, considering the objection of the petitioner as well as taking into consideration the ratio of law laid down by this Court in Rishi Pal Singh (Supra), the aforementioned proceeding shall be concluded within period of four months from the date of production of certified copy of this order before respondent no.3.

Order Date :- 28.8.2023

Vandana Y.