Sumit Kumar Singh vs State Of U.P. And 3 Others
2023 Latest Caselaw 18658 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:146773
 
Court No. - 51
 

 
Case :- WRIT - C No. - 13065 of 2023
 

 
Petitioner :- Sumit Kumar Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Abhishek Singh,Shailendra Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Rajesh Kumar Nishad, Counsel for the petitioner, learned Standing Counsel for the State-respondents and Mr. Rameshwar Prasad Shukla for respondent no.4, Gram Panchayat.

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

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 31.3.2023 and 16.2.2022 passed by respondent nos. 2 and 3 passed by respondent nos. 2 and 3 respectively, vide Annexure Nos. 10 and 8 to the writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to implement orders and also not to evict the petitioner from the land in in dispute and not to realize the damages in pursuance of the impugned orders from the petitioner."

3. Counsel for the petitioner submitted that Naga Baba Higher Secondary School Kusouri, Pargana Kharid, District Ballia is imparting education to children up to class 8th. He further submitted that the aforementioned Institution is situated in plot No. 170 in the Village Kusouri and Plot No. 169 and 171 are the adjoining plots of the Institution therefore during the consolidation operation, plot No. 169 area 0.320 hectare has been reserved for plantation and plot No. 171 area 0.304 hectare has been reserved for playground. He further submitted that the entry of plot nos. 169 and 171 has not been challenged by anybody during consolidation operation and the Village in question has been denotified under Section 52 of the U.P. Consolidation of Holdings Act accordingly the entry of plantation as well as the playgrounds have attained finality. He further submitted that the proceeding under Section 67 of the U.P. Revenue Code, 2006 has been initiated in respect to plot nos. 169 and 171 in which petitioners filed his objection challenging the maintainability of the proceeding under Section 67 of the U.P. Revenue Code, 2006 but without considering the objection of the petitioner, the order for ejectment and damages has been passed by the Tehsildar vide order dated 16.2.2022 in respect to plot Nos. 169 and 171. He further submitted that there is no proper survey/ demarcation of the plot in dispute and the appeal filed against the order of ejectment and damages were also dismissed vide order dated 31.3.2023 by the District Magistrate. He further submitted that in respect to plot no. 169, Writ C No. 14050 of 2023 was filed before this Court which was allowed vide order dated 11.5.2023 setting aside the order passed by the Tehsildar and District Magistrate and matter was remitted back before the Tehsildar for fresh consideration strictly in accordance with the ratio of law laid down in 2023 (1) ADJ 154 Rishi Pal Singh Vs. State of U.P. and Others. Counsel for the petitioner submitted that in view of the order passed in Writ C No. 14050 of 2022, the instant petition be also allowed setting aside the impugned order.

4. On the other hand, learned Standing Counsel and Counsel for the Gaon Sabha submitted that impugned order was passed in accordance with law in the proceeding under Section 67 of the U.P. Revenue Code, 2006, as such, no interference is required. They further submitted that plot in dispute is of public utility, as such, no right/ title will accrue to petitioner, as such, writ petition is liable to be dismissed.

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

6. There is no dispute about the fact that order for ejectment and damages has been passed in respect to plot Nos. 169 and 171 by the Tehsildar against the petitioner in two separate cases and there is also no dispute about the fact that appeal filed by the petitioner have also been dismissed under Section 67(5) of the U.P. Revenue Code, 2006.

7. This Court in the case of Rishi Pal Singh (Supra) has laid down the procedure regarding the disposal of the cases under Sections 67(1) and 67(5) of U.P. Revenue Code, 2006. Paragraph No. 74 of the judgment is relevant for consideration.

"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."

8. This Court in Writ C No. 14505 of 2023 has already set aside the order passed against the petitioner in respect to plot No. 169, as such, the interest of justice requires that impugned orders in the instant matter be also set aside and the matter be remitted back before the Tehsildar to decide the dispute in view of the ratio of law laid down in Rishi Pal Singh (Supra).

9. Considering the entire facts and circumstances of the case as mentioned above, the impugned order dated 31.3.2023 passed by respondent no.2, Collector/District Magistrate, Ballia in case No. D202215090000300 and 16.2.2022 passed by respondent no.3, Assistant Collector First Class/ Tehsildar Banshdeeh, District Ballia in case No. T202115090600860 are liable to be set aside and the same are hereby set aside. Writ petition is allowed in part and the matter is remitted back before the respondent no.3, Tehsildar to decide the case No. T202115090600860 afresh considering the ratio of law laid down in Rishi Pal Singh (Supra) expeditiously preferably within period of four months from the date of production of certified copy of this order.

Order Date :- 24.7.2023

Vandana Y.