Allahabad High Court
Ghanshyam Tiwari vs State Of U.P. And 2 Others on 20 February, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - C No. - 38186 of 2022
Petitioner :- Ghanshyam Tiwari
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Nand Lal Pandey,Dileep Kumar Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
Heard Mr. N. L. Pandey, learned Senior Counsel assisted by Mr. Dileep Kumar Pandey, Counsel for the petitioner and Mr. L.K. Tripathi, learned Additional Chief Standing Counsel for the State-respondents.
The instant writ petition has been filed for quashing the impugned notice dated 18.11.2022 issued by respondent No.3 under the provisions contained under Section 67(1) of the U.P. Revenue Code, 2006.
Counsel for the petitioner submitted that land in dispute is recorded as abadi, as such notice issued against the petitioner is illegal and the amount for damages mentioned in the notice is excessive and cannot be imposed. He further submitted that issuance of notice is abuse of process of law.
On the other hand, Mr. L.K. Tripathi, learned Additional Chief Standing Counsel for the State-respondents submitted that petitioner has challenged the notice issued under the provisions of U.P. Revenue Code, 2006 regarding which the petitioner has full opportunity to raise objection before the respondent No.3, Tehsildar, which shall be considered and decided in accordance with law. He further submitted that no interference is required at this stage.
Mr. N.L. Pandey, learned Senior Counsel for the petitioner placed judgment of this Court reported in 2023 (1) ADJ 154 Rishipal Singh Vs. State of U.P. and three others in which guide line has been given for deciding the dispute under Section 67, 67-A and 26 of U.P. Revenue Code, 2006.
He further submitted that interim protection be provided to petitioner till the disposal of the proceeding under Section 67 of U.P. Revenue Code, 2006.
I have considered the arguments advanced by the counsel for the parties and perused the record.
Since the petitioner has challenged the notice issued under Section 67 (1) of the U.P. Revenue Code, 2006 and the case has been registered before the Tehsildar, as Case No.T20221667050675, as such interest of justice requires that petitioner should appear before respondent No.3 and raise objection before Tehsildar that proceeding is not maintainable and liable to be dropped.
The judgment of this Court rendered in Rishipal Singh (Supra) is relevant for deciding the dispute under Section 67, 67A and 26 of U.P. Revenue Code, 2006. Paragraph Nos. 74 and and 75 of the judgment 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 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.
75. India lives largely in villages and still by and large is an agregarian economy. The State of Uttar Pradesh is no exception. Accordingly, I may observe here that rules of procedure deserve to be suitably amended by the State Government incorporating above guidelines for leaving no scope for any arbitrariness that is seen largely as influencing the decision making process by the authority, may be for local village politics"
Considering the facts and circumstances of the case as well as ratio of law laid down by this Court in Rishi Pal Singh (Supra), the instant writ petition is finally disposed of directing the petitioner to appear before respondent No.3/ Tehsildar in the aforementioned proceeding and raise objection before respondent No.3/ Tehsildar, who shall decide the aforementioned proceeding expeditiously preferably within a period of four months from the date of production of certified copy of this order after affording opportunity of hearing both the parties.
Order Date :- 20.2.2023
PS*
