Allahabad High Court
Kailash Yadav vs State Of U.P. And 4 Others on 29 August, 2023
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:174060
Court No. - 52
Case :- WRIT - C No. - 29447 of 2023
Petitioner :- Kailash Yadav
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Rajendra Singh Chauhan
Counsel for Respondent :- C.S.C.,Achal Singh
Hon'ble Saurabh Srivastava,J.
1. At the very outset, learned counsel for petitioner sought the permission of the Court for amending the prayer clause of the petition wherein order dated 25.05.2023 has been inadvertently left to be challenged.
2. Prayer made by learned counsel for petitioner is allowed. Necessary incorporation shall be carried out during course of the day.
3. Heard Sri R.S.Chauhan, learned counsel for petitioner and Sri Ambuj Srivastava, holding brief of Sri Achal Singh, learned Counsel for Gaon Sabha and Sri S.B.Singh, learned counsel for State respondents.
4. Present petition has been filed seeking following reliefs:
"(1) Writ, order or direction in the nature of certiorari quashing the impugned order dated 30.1.2018 passed by the respondent no.4(Ax.3), 25.5.2023(Ax.9) and subsequent order dated 27.7.2023 passed by respondent no. 3 and further restrain the respondents not to interfere in the peaceful possession of the petitioner over gata number 2161 where his house is situated."
5. It is the case of the petitioner that proceeding under Section 67 of U.P. Revenue Code, 2006 have been initiated against the petitioner specifically with regard to plot no. 2221 situated at village Faujadar Ka Purwa, Tehsil Atarra, District Banda which is adjacent to the plot no. 2161 pertains to the petitioner as abadi whereupon the permanent structure has already been made by the petitioner for a long period of time as well as residing with his family with peaceful possession. The entire proceedings initiated under Section 67 against the petitioner was an ex parte since no notice or information has ever been served upon the petitioner with regard to initiation of proceedings which culminated into order dated 30.01.2018. As and when it came into the knowledge of the petitioner a recall application has been instituted on dated 03.09.2019. Learned counsel for petitioner submitted that without considering any of the grounds taken up by the petitioner for substantiating his claim which is by and large covered under Section 67(a) of the U.P. Revenue Code, 2006 the same was dismissed vide order dated 25.05.2023.
6. Being aggrieved with the above mentioned adjudication made by respondent no. 4, both the orders passed under Section 67 as well as over the recall application preferred by the petitioner has been challenged in shape of appeal under Section 67(5) of Code of 2006 before the respondent no. 3 and the same has also been adjudicated against the petitioner without considering the vital facts as raised in the memo of appeal appended along with instant petition.
7. Per contra, Sri Ambuj Srivastava holding brief of Sri Achal Singh, as well as Sri S.B.Singh, learned Standing counsel appearing for State respondents vehemently opposed the prayer as made in the petition as well as controverted the entire arguments raised by learned counsel for petitioner on the ground that at no point of time protection under Section 67(a) has ever been sought by the petitioner before any of the authority who adjudicated the entire proceedings under Section 67 as well as 67(5) of the U.P.Revenue Code, 2006.
8. After having the rival submissions extended by learned counsel for the parties one thing is crystal clear that the version of the petitioner has never been recorded while adjudicating the proceedings under Section 67 which culminated into order dated 30.01.2018 and as such there was no ground available before the petitioner to seek the protection under Section 67(a) of the Code of 2006 before the respondent no. 4. While preferring the recall application, the same was also decided in a very cursory manner by the respondent no. 4 and as such the merit of the matter has not been discussed while passing the order dated 25.05.2023, whereupon the entire appeal has been decided only on the issue which has been somehow discussed by the respondent no. 4 while adjudicating the proceeding under Section 67 of the U.P. Revenue Code, 2006.
9. For substantiating the arguments as raised by learned counsel for petitioner, he relied upon the leading case of Rishipal Singh vs. State of U.P. and others decided in Writ C no. 6658 of 2022 and reported in 2023 (1) AWC 4. Learned counsel for petitioner also placed reliance on judgment dated 09.02.2023 passed in C.M.W.P. no. 4745 of 2023 rendered by coordinate Bench of this Court in case of Leelu Vs. State of U.P. through Secretary Revenue U.P. at Lucknow and others. In case of Leelu (supra) co-ordinate Bench has relied the pith and substance derived in the case of Rishipal Singh(supra) wherein it has been mentioned that the mandatory provision under Section 67 of the Code of 2006 must be complied by the authority who is adjudicating the same.
10. Having full agreement with the judgment rendered by the coordinate Bench of this Court, it is crystal clear that the provisions for giving opportunity of hearing by way of issuing notices to the person against whom the proceeding under Section 67 has been initiated, has not been complied with and the same is contrary to the provision mentioned under Section 67 of the Code of 2006.
11. Learned Standing counsel however, disputed the facts but showed his agreement with the judgment of Rishipal Singh (supra) as well as judgment passed in case of Leelu (supra).
12. In view of the aforementioned facts and circumstances, order dated 30.01.2018 and 25.05.2023 passed by respondent no. 4 as well as order dated 27.07.2023 passed by respondent no. 3 are hereby set aside. Matter is remitted back to the respondent no. 4 for deciding fresh after giving due opportunity of hearing to the petitioner and the same shall be decided within six months from the date of production of certified copy of this order.
13. Writ petition stands allowed accordingly.
Order Date :- 29.8.2023
Shaswat
