Pramod Kumar And 10 Others vs State Of U.P. And 3 Others
2023 Latest Caselaw 17554 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:140978
 
Court No. - 51
 
Case :- WRIT - C No. - 5554 of 2023
 
Petitioner :- Pramod Kumar And 10 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Gautam Baghel,Utkarsh Singh
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Gautam Baghel assisted by Mr. Utkarsh Singh, Counsel for the petitioners, Mr. O.P. Sharma, learned Additional Chief Standing Counsel for State-respondents and Mr. Sunil Kumar Singh for respondent no.4, Land Management Committee.

2. The instant petition has been filed against the order dated 22.12.2022 passed by respondent no.3 as well as the eviction notice issued by Divisional Magistrate, Dadri, Gautam Budh Nagar as well as for direction that respondents may not interfere in the peaceful possession of the petitioners over their villas.

3. Brief facts of the case are that petitioners have purchased the individual villas from M/s Renowed Build Tech. Private Ltd. vide registered sale deed dated 21.11.2020. According to the sale deed, construction is upon Khasra No. 220 Village Jalpura, Dadri, Gautam Buddh Nagar. Particulars of the petitioners in respect to the property (villa) which have been purchased by them is mentioned in Para No. 7 of the writ petition. The proceeding under Section 67 of the U.P. Revenue Code, 2006 has been initiated against the Lotus Villa Society through Shri Shailendra Sharma and the order for ejectment and damages has been passed by the Tehsildar vide order dated 22.12.2022 in respect to Khasra No. 221 on the ground that Khasra No. 221 is banjar plot. Hence this writ petition against the order of ejectment and damages passed by Tehsildar dated 22.12.2022.

4. Counsel for the petitioners submitted that petitioners are owner of the villa purchased by them by way of registered sale deed and the petitioners are in possession of the villa purchased by them, as such, unless the notice and opportunity is afforded to the petitioners, no order for ejectment and damages can be passed by the Tehsildar. He further submitted that order impugned is arbitrary as no survey/ demarcation has been made and the impugned order has been passed for ejectment and damages. He further submitted that since order of ejectment, demolition and damages has been passed without notice and opportunity to the petitioners hence petitioners filed the instant writ petition in place of filing recall application or appeal before the Appellate Court. They submitted that impugned order be set aside and petitioners should be afforded opportunity before any order of ejectment or damages against them.

5. On the other hand, learned Standing Counsel and Counsel for the Gaon Sabha submitted that impugned order has rightly been passed by the Tehsildar as the Khasra No. 221 is recorded as banjar in the revenue records. They further submitted that a notice was issued to Lotus Villa Soceity through Shri Shailendra Sharma and the order for ejectment and damages was rightly passed by the Tehsildar. They next submitted that against the order impugned, the remedy of appeal is available, as such, no interference is required at this stage. They further submitted that the order of ejectment and damages has been passed against Lotus Villa Society through Shailendra Sharma, as such, petitioners have no right to file writ petition.

6. In reply, Counsel for the petitioners submitted that petitioners are in possession of their villa on the basis of registered sale deed executed in their favour, as such, order for ejectment from their villa without notice and opportunity of hearing is illegal accordingly writ petition is maintainable and on the basis of the impugned order, the authorities are threatening to dispossess all the petitioners from the accommodation in dispute, as such, the petition on behalf of the petitioners is maintainable.

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

8. There is no dispute about the fact that order impugned has been passed in the proceeding under Section 67 of the U.P. Revenue Code, 2006 in respect to the Khasra No. 221.

9. So far as the proceeding under Section 67 of the U.P. Revenue Code, 2006 is concerned, this Court in the case reported in 2023 (1) ADJ 154 Rishi Pal Singh Vs. State of U.P. and Others has considered the scope of Section 67 of the U.P. Revenue Code, 2006 and has held that the proceeding under Section 67 of the U.P. Revenue Code, 2006 should be conducted after giving opportunity of hearing making proper survey and demarcation as well as considering the case of settlement under Section 67-A if any in accordance with law. Paragraph No. 74 of the judgment rendered in Rishipal Singh (Supra) is relevant for consideration 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."

10. In the instant matter although the petitioners have not given any notice and the notice has been issued to one Shailendra Sharma who was builder of the construction in question and petitioners are in possession of the construction on the basis of registered sale deed, as such, notice and opportunity should be afforded to the petitioners before passing any adverse order against the petitioners.

11. Hon'ble Apex Court in the case reported in 2009 (1) AWC 437 (SC) Committee of Management and another Vs. Vice-Chancellor and Others has held that where the order impugned has been passed in violation of principles of natural justice or order is without jurisdiction, the alternative remedy will not be barred. Paragraph No. 21 of the judgment is relevant which is as follows:-

"21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1:

"15. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

[See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546]"

12. Since in the instant matter, the petitioners who are in possession of their villa on the basis of sale deed have not been given notice and opportunity, as such, they could not set up their claim before the Tehsildar in the proceeding under Section 67 of the U.P. Revenue Code, 2006, accordingly, the impugned order passed by the Tehsildar dated 22.12.2022 cannot be sustained.

13. Considering the entire facts and circumstances of the case as well as ratio of law laid down in Rishipal Singh (Supra) and Committee of Management (Supra), the impugned order dated 22.12.2022 passed by respondent no.3/ Tehsildar, Judicial, Tehsil- Dadri, District- Gautambudh Nagar is liable to be set aside and the same is set aside.

14. The writ petition is allowed in part and matter is remitted back before the respondent no.3, Tehsildar Judicial, Tehsil- Dadri, District- Gautam Buddha Nagar to register the proceeding on its original number and afford opportunity of hearing to the petitioners also in the proceeding under Section 67 of U.P. Revenue Code, 2006. The Tehsildar after notice and opportunity of hearing to the petitioners shall decide the proceeding under Section 67 of the U.P. Revenue Code, 2006 in accordance with law expeditiously preferably within period of three months from the date of production of certified copy of this order.

Order Date :- 17.7.2023

Vandana Y.