Hasnain vs State Of U.P. And 3 Others
2023 Latest Caselaw 27964 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:197168
 
Court No. - 51
 
Case :- WRIT - C No. - 33799 of 2023
 
Petitioner :- Hasnain
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rahul Kumar Tyagi
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Rahul Kumar Tyagi, Counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, Counsel for respondent no.4, Gram Sabha.

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

" Issue an appropriate writ, order or direction for quashing the impugned judgment and order dated 28.9.2022 passed by respondent no.2 in Revision No. 3813 of 2021, Computerized case No. D202111520003813, Hasnain Vs. State as well as the ex-parte impugned judgment and order dated 13.4.2021 passed by respondent no.3 in case No. 01397 of 2018, Computerized case No. T201811520401997 Gram Sabha Vs. Hasnain, along with the impugned R.C. Letter 20 (Impugned Notice) dated 2.5.2018 arising out of the proceedings under Section 67 of U.P. Revenue Code, 2006."

3. With the consent of the parties, the instant writ petition is being heard and disposed of finally without inviting counter-affidavit.

4. Counsel for the petitioner submitted that proceeding under Section 67 of the U.P. Revenue Code, 2006 has been conducted in arbitrary and ex-parte manner. He further submitted that during Covid-19 pandemic, the impugned order for ejectment and damages has been passed in violation of principles of natural justice. He further submitted that objection taken up before the Tehsildar deying his possession over the plot in dispute has not been taken into consideration. He further submitted that objection was also taken that proper inspection/ survey be conducted but without conducting the survey/ demarcation of the plot in dispute, order for ejectment and damages has been passed. He further submitted that appeal/ revision filed under Section 67 (5) of the U.P. Revenue Code, 2006 has also been dismissed in arbitrary manner. He placed the judgment of this Court reported in 2023 (1) ADJ 154 Rishi Pal Singh Vs. State of U.P. and Others in order to demonstrate that order for demolition and damages cannot be passed without affording proper opportunity of hearing as well as without conducting the survey/ demarcation of the plot in dispute. He further submitted that writ petition No. 33814 of 2023 involving the same controversy has been entertained and interim protection has been granted.

5. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, Counsel for respondent no.4, Gram Sabha submitted that plot in dispute is recorded as playground, as such, petitioner is not entitled to any relief in the matter. They further submitted that finding has been recorded that petitioner is in possession over the plot which is recorded as playground, as such, no interference is required in the matter and writ petition is liable to be dismissed.

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

7. There is no dispute about the fact that proceeding under Section 67 of the U.P. Revenue Code, 2006 was initiated in respect to plot No. 1945 area 690 square meter and order for ejectment and damages has been passed by Tehsildar which has been maintained in appeal.

8. The order impugned order dated 13.4.2021 passed by Tehsildar for ejectment and damages will be relevant for perusal which is as under:-

"?????????- ????????, ???????

????????????? ??? ???????- T201811520401997

??? ???????- 01997/2018

????? ??? ???? ?????

????? ?????? ?????? ??????-2006, ??????? ?????- 67

" ????? ????"

???? ?????- 13/04/2021

??????-

???????? ??? ?? ????????? ????????? ?????? ?????? ???????? ?????? ??????? ??? ??? ???????-19 ?????? 19.02.2018 ?? ???? ?? ???????? ?? ??? ?? ?? ??????? ????? ????? ???? ?????? ????? ????? ??????? ????? ? ????? ????? ???? ???? ?????? ????? ????? ???????? ????? ????? ???? ???? ?? ????? ????? ???? ???? ???? ?????? 1945 ????????? 690 ???????? ?? ??? ?? ????? ?? ???? ?? ????? ????? ???? ????? ?? ??? ??? ??? ???? ??????? ?? ??????? ???????/ ??????? ?? ????? ??? ???? ??????? ?? ?????? ?? ??????? ?? ?????? ????????? ???? ???? ?????? ???????-19 ???????? ???? ???? ????????? ?????? ?? ????? ?? ???? ?? ??? ?????????? ??????? ?? ??????? ?? ????? ??? ??? ???????-20 ???? ???? ??? ?? ????? ??? ?? ????? ???? ???????? ?? ?????? ??? ????? ?? ??????? ?? ?? ?? ???? ?????? 12.06.2018 ?? ??????? ?????? ?????? ???????? ?? ???? ??????? ????? ????? ???? ???? ?????? ?? ????? ???? ?? ?? ??????? ???? ???? ?????? 1945 ????????? 690 ???????? ?? ??? ????? ???? ?????? ?? ??? ???? ??? ??? ????? ?????? ????? ?? ??????? ???? ????????? ???? ?? ?????? ???? ? ????? ?? ???? ?? ?????? ???? ?? ??? ????? ???? ????? ?????? ???????-20 ??? ?????? ??????? ?????? ???????-19 ???? ?? ????? ?? ??? ?? ??? ??? ?? ?????? ??? ??? ??????? ?????? 19.20.2019 ????????? ???? ?? ???? ?????? ???? ????? ??? ??? ?? ???? ??? ?? ?? ?? ?????? ???????? ?????? ????? ?????? ?????? 20.12.2019 ?? ???????? ?? ???? ?????? ??????? ???? ????? ?????? ?? ??? ?? ??????????? ????? ????? ???? ?? ????? ????? ??????? ?? ??? ?? ????? ?? ???? ???? ?????? 1945 ????????? 690 ???????? ???? ?? ????? ????? ???? ?? ????? ?? ???????? ????? ???? ??? ??? ??????????? ?? ?????? ???? ??????? ???? ?????? ?????? ?? ??? ???? ??? ????? ???? ?? ???? ??????? ???? ???? ????? ??? ??? ?????? 28.01.2021 ?? ????????????? ?????? ????? ?????? ?? ??? ???? ???????? ???? ???? ???? ?? ???????/??????????? ????? ????? ???? ?????? ????? ????? ??????? ????? ????? ???? ???? ?? ????? ???? ??? ??? ?? ?????? ??????? ??????? ?? ???? ?? ??????? ?? ???? ????? ????? ???? ??? ??? ??????? ?? ????? ??? ?? ???????? ??? ?? ????? ?? ???? ?? ??????????? ???? ????? ???? ???? ????????? ???

????

????? ????? ??????? ????? ????? ???? ???? ?? ?????? ????? ???? ??? ?? ????? ???? ???? ?????? 1945 ?? ???? 0.0690 ??? ??? 690 ???????? ?? ????????? ????? ????? ???? ?????? ????? ????? ??????? ?? ???? ????? ????? ???? ?? ???? ????? ???? ???? ??? ??? ????????? ?? ???? ?????4,48,500.00/(??? ??? ???????? ???? ???? ?? ?????) ??? ??????????? ????/???????? ????? ???? ????? 200-00/-(?? ?? ?????) ?????? ???? ???? ??? ?????? ????? ?? ??????? ????? ???? ???????? ??????-21 ??? ?????? ???? ?????? 67(3) ?? ???????? ?????? ????? ???? ??? ???????? ??? ????? ??????? ??? ?????? ????? ?????????? ?? ????

??????- 13.04.2021

(?????????)

????????/?? ?? ????? ??????,

???????? ????? ???? ?????"

9. The perusal of the order passed by Tehsildar demonstrate that proper opportunity of hearing has not been afforded to the petitioner nor the inspection/ survey has been conducted. The order of Tehsildar has been maintained in appeal/ revision in arbitrary manner.

10. This Court in the case of Rishi Pal Singh (Supra) has laid down the principle for deciding the dispute under Sections 67, 67-A and 67 (5) of the U.P. Revenue Code, 2006 which will be relevant for perusal. Paragraph No. 74 of the judgment is relevant which is as follow:-

"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."

11. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Rishi Pal Singh (Supra), matter requires fresh consideration by the Tehsildar considering the objection of the petitioner as well as the ratio of law laid down by this Court in Rishi Pal Singh (Supra).

12. In view of the aforementioned facts and circumstances, the impugned order dated 13.4.2021 passed by respondent no.3, Tehsildar and 28.9.2022 passed by respondent no.2, Collector are liable to be set aside and the same are hereby set aside. Writ petition stands allowed in part and matter is remitted back before respondent no.3 to register the proceeding on its original number and decide the same after affording proper opportunity of hearing to the parties in the light of the judgment of this Court rendered in Rishi Pal Singh (Supra) expeditiously preferably within period of six months from the date of production of certified copy of this order.

Order Date :- 11.10.2023/ Vandana Y.