Akhalak vs State Of U.P. And 2 Others
2023 Latest Caselaw 9394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - C No. - 7293 of 2023
 

 
Petitioner :- Akhalak
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sheeba Rizvi
 
Counsel for Respondent :- C.S.C,Arun Kumar Pandey
 

 
Hon'ble Kshitij Shailendra,J.

Heard Ms Sheeba Rizvi, learned counsel for the petitioner, learned Standing counsel for the State-respondents and Shri Arun Kumar Pandey, learned counsel for the Gaon Sabha.

By the first impugned order dated 09.11.2020, the proceedings under Section 67 of the U.P. Revenue Code, 2006 were decided against the petitioner in respect of Gata No. 468 holding that the petitioner has made unauthorized construction over 225 Square meters of land of the said gata and damages were also imposed upon the petitioner. It is contended that the aforesaid order was ex-parte and therefore the petitioner filed a recall application under Section 209(h) of U.P Revenue Code, 2006 which has been rejected by the second order impugned dated 06.09.2022 by the Tehsildar stating that and the first order was not ex-parte and, therefore, the recall application has no force.

Learned counsel for the petitioner submits that order dated 09.11.2020 apart from being exparte, is contrary to the factual position as well as law laid down by this Court in the case of Rishipal Singh v. State of U.P. reported in 2023 (1) AWC 4 as the Rules 66 and 67 have not been followed before deciding the matter and further the petitioner was not heard as sufficiently explained in the recall application.

Per contra, learned standing counsel submits that the petitioner did not prefer any objection despite service of notice and, therefore, the order impugned does not suffer from any illegality.

Having heard learned counsel for the parties, this Court finds that the proceedings under Section 67 of the Code, result in serious civil consequences against the alleged encroacher and therefore keeping in view the mandate of law contained in the judgment of Rishi Pal Singh (supra), the same require disposal in accordance with law and the petitioner may have a say in the matter, it was incumbent for the Tehsildar to allow the recall application and restore the matter to its original number and status and decide the same again after considering the objections filed by the petitioner.

In view of the above, this Court finds that instead of passing any interim order in favour of the petitioner calling upon the response from the respondents, it would be appropriate to dispose of the writ petition today itself.

Accordingly, the writ petition is allowed quashing the impugned orders dated 09.11.2020 and 06.09.2022. The matter is remanded to the Tehsildar and the proceedings of the Case No. 2659 of 2017 (Gaon Sabha Vs. Akhalak) are restored to their original number and status.

The petitioner is directed to file objections along with the documentary evidence in support of his lawful possession over the aforesaid land in dispute within a period of three weeks from today.

After such objections are filed, the Tehsildar shall dispose of the proceedings in accordance with law, following guidelines laid down by this Court in the case of Rishi Pal Singh (supra) within a period of six months.

Order Date :- 31.3.2023

Ashutosh