Allahabad High Court
Ramagya Tiwari And 3 Others vs State Of U.P. And 6 Others on 7 February, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 24176 of 2022
Petitioner :- Ramagya Tiwari And 3 Others
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Rajesh Kumar Rao,Krishna Mohan Tripathi
Counsel for Respondent :- C.S.C.,Munna Tiwari,Sudhir Bharti
Hon'ble Chandra Kumar Rai,J.
Heard Mr. K.M. Tripathi, Counsel for the petitioners, Mr. Munna Tiwari for respondent Nos. 6 and 7, Mr. Ajit Kumar Singh, learned Additional Advocate General assisted by Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for State-respondent Nos.1, 2 and 4 and Mr. Sudhir Bharti for respondent No5.
The instant petition has been filed for mandamus commanding the Sub-District Magistrate, Tehsil-Tamkuhiraj, District-Kushinagar to summon the record of the proceeding under Section 67 of the U.P. Revenue Code, 2006 and consolidate the same along with the proceedings under Section 67-A of the U.P. Revenue Code, 2006 and decide both the proceedings together. It is further prayed that respondents be restrained from demolishing the residential house of the petitioners during pendency of the aforementioned proceeding.
Brief facts of the case are that petitioners are in possession of plot No. 428 area 0.40 hectare much prior to 30.6.1995. Petitioners are residing in the plot No. 428 area 0.40 hectare by constructing residential house since the time of their ancestors. The proceeding under Section 67-A of the U.P. Revenue Code, 2006 has been initiated at the instance of the petitioners which have been registered as Case Nos. T202105440308941, T202105440308939, T202105440308938 and T202105440308940 before the Sub-District Magistrate, Tehsil-Tamkuhiraj, District-Kushinagar. The reports were submitted by the authorities in the aforementioned case in which it is mentioned that petitioners' construction are situated prior to 30.06.1995. One public interest litigation No. 1449 of 2020 was filed before this Court with respect to the removal of illegal encroachment over plot No. 428 area 0.40 hectare which was disposed of vide order dated 17.12.2020 with direction that alternative remedy be availed regarding the removal of illegal encroachment accordingly the proceeding under Section 67 of the U.P. Revenue Code, 2006 has been initiated against the petitioners in respect to plot No. 428 regarding which the petitioners have already initiated proceeding under Section 67-A of the U.P. Revenue Code, 2006. The particulars of the four cases registered under Section 67 of the U.P. Revenue Code, 2006 are as follows :-
(i) T202105440308941, (ii) T202105440308939, (iii) T202105440308938 & (iv) T202105440308940.
Hence this writ petition for consolidating the cases pending under Section 67-A of the U.P. Revenue Code, 2006 as well as 67 of the U.P. Revenue Code, 2006 in respect to same plot No.428 and for interim protection in respect to their construction.
Counsel for the petitioner submitted that petitioners are in possession of the plot No. 428 since the time of the ancestors and their possession was found even before the relevant date as reported by the authority in the pending proceeding as such proceeding initiated under Section 67 A of the U.P. Revenue Code, 2006 be disposed of expeditiously. He further submitted that petitioners have already initiated proceeding under Section 67-A of the U.P. Revenue Code, 2006, as such, the subsequent initiation of the proceeding against the petitioners under Section 67 is abuse of process of law. He submitted that in the interest of justice requires that both the proceeding be consolidated and decided together.
On the other hand, Additional Advocate General assisted by Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for State as well as Mr. Munna Tiwari, Counsel for private respondents No.6 & 7 submitted that both the proceedings are pending in different Courts, as such, they will be decided independently and petitioners are not entitled to the relief claimed in the writ petition.
Counsel for the petitioner placed reliance upon the judgment of this Court reported in 2021 0 Supreme (Allahabad) 810 Govind Singh Vs. State of U.P. and Others in which direction was issued for filing necessary application for consolidating the case under Section 67-A and 67 and deciding the same by the Tehsildar/ Assistant Collector within stipulated period. Relevant paragraph Nos.14 and 15 of the judgment are as follows :-
"14. The authority/ court having jurisdiction to decide the proceedings taken out under Section 67 of the Code or Section 67(A) of the Code is the same. When the defence of Section 67(A) of the Code is taken in proceedings of Section 67 of the Code, the same issues will be directly and substantially in issue in both the proceedings. Usually in such matters pleadings, defence, and evidence of the parties are same in both the proceedings. In case proceedings under Section 67 and 67(A) of the Code are conducted separately and in isolation to one another, it would lead to multiplicity of litigation and inconsistent judgments. There will also be an avoidable delay in decision of the controversy and may even result in miscarriage of justice.
15. The courts in proceedings under Section 67 of the Code are under obligation of law to decide the eligibility of the noticee for protection under Section 67(A) of the Code. In case defence under Section 67(A) of the Code is taken by the noticee, the said proceedings shall be registered separately. But both cases will be consolidated and heard and decided together."
I have considered the arguments advanced by learned counsel for the parties and perused the record.
There is no dispute about the fact that petitioners have initiated proceeding under Section 67 of the U.P. Revenue Code, 2006 which is pending before the Sub-District Magistrate, Tehsil-Tamkuhiraj, District-Kushinagar and the proceeding under Section 67 initiated against the petitioners subsequently is pending before the Assistant Collector/ Tehsildar, Tehsil-Tamkuhiraj, District-Kushinagar.
Since the petitioners have already initiated proceeding under Section 67-A of the U.P. Revenue Code, 2006 and the proceeding under Section 67 of the U.P. Revenue Code, 2006 initiated against the petitioners will be the consequence of the proceeding already initiated by petitioners under Section 67-A of U.P. Revenue Code, 2006, as such, interest of justice requires that abovementioned four cases filed by petitioners under Section 67-A of the U.P. Revenue Code, 2006 be decided first.
Considering the facts and circumstances, it is directed that respondent No.3 shall decide the petitioners' case as mentioned above under Section 67-A of the U.P. Revenue Code, 2006 first expeditiously preferably within period of three months from the date of production of certified copy of this order. Till the decision of petitioners' case under Section 67-A of the U.P. Revenue Code, 2006, the proceeding under Section 67 of the U.P. Revenue Code, 2006 initiated against the petitioner in respect to plot No.428 shall remain in abeyance.
With the above observation, the writ petition is finally disposed of.
Order Date :- 7.2.2023
Vandana Y.
