Mirza Naseem Beg @ Naseem Beg vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 29113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:68855
 
Court No. - 18
 

 
Case :- WRIT - C No. - 7946 of 2023
 

 
Petitioner :- Mirza Naseem Beg @ Naseem Beg
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy., Revenue Deptt., Lucknow And 3 Others
 
Counsel for Petitioner :- Rajeiu Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Saurabh Lavania,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel and ShriPankaj Gupta, learned counsel for the Gaon Sabha.

2. By means of the present petition, the order dated 13.02.2018 and 09.08.2023 have been challenged.

3. The order dated 13.02.2018 was passed by opposite party No.3-Assistant Collector/Tehsildar, Tehsil-Kaiserganj, District-Bahraich in the case instituted under Section 67(1) of U.P. Revenue Code, 2006 (in short "Code of 2006") registered as Computerized Case No.T2017081546032540, (Gaon Sabha vs. Mirza Naseem Beg) and the order dated 09.08.2023 was passed by opposite party No.2-District Magistrate/Collector, District-Bahraich in the Appeal No.00198 of 2018, Computerized Case No.D201808150000198, (Mirza Naseem Beg vs. Gram Panchayat) filed under Section 67(5) of the code of 2006.

3. Challenging the impugned order dated 13.02.2018 passed by opposite party No.3, the learned counsel for the petitioner has stated that while passing the impugned order, the authority concerned has not followed the procedure prescribed.

4. Learned counsel for the petitioner further submitted that the procedure which should be followed, after taking note of the statutory provisions, as has been settled by this Court in the judgments passed in the case of Rishipal Singh vs. State of U.P. and Others reported in 2022 SCC Online All 829 and in Writ-C No.9500 of 2022, (Sharda Industries Thru. Partner Mayank vs. The Additional District Collector, District Unnao And 2 Others). He further submitted that the order dated 09.08.2023 passed by opposite party No.2 affirming the order dated 13.02.2018 is also liable to be interfered as the appellate authority also failed to take note of the fact that the order under appeal dated 13.02.2018 has been passed without following procedure prescribed for deciding the case under Section 67(1) of the Code of 2006.

5. Learned counsel for the side opposite opposed the present petition. However, they could not dispute the law settled by this Court in the judgments referred by the learned counsel for the petitioner wherein this Court has summarized the procedure to be followed while deciding the case instituted under Section 67 of the Code of 2006 and the same was not followed while passing the order dated 13.02.2018 affirmed vide order dated 09.08.2023.

6. Considered the submissions made by the counsel for the parties and perused the record.

7. The procedure, which should be followed while deciding the case instituted under Section 67 of the Code of 2006, has already been settled by this Court as appear from para 74 of the judgment passed in the case of Rishipal Singh(Supra) as also the judgment passed in the case of Sharda Industries Thru. Partner Mayank(Supra). The relevant para 74 of the judgment passed in the case of Rishipal Singh (Supra) reads as under:-

" 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."

8. In the judgement passed in the case of Sharda Industries Thru. Partner Mayank(Supra), this Court has observed that the report of lekhpal should be proved as per law and an unproved report cannot be relied upon.

9. A perusal of the impugned order indicates that the procedure as prescribed by this Court has not been followed, which is also not in dispute. Accordingly, the order dated 13.02.2018 and 09.08.2023 are hereby set aside. The matter is remanded back to the Opposite Party No.3, who shall conclude the proceedings, after following the aforesaid procedure prescribed, within three months from the date of production of certified copy of this order.

10. For concluding the proceedings, the opposite party No.3 shall not provide any adjournment to the petitioner and in case, the petitioner fails to appear on the date fixed, then in that event, the authority concerned is at liberty to proceed ex-parte, however, in the light of the law laid down by this Court and conclude the proceedings within a period of three months.

11. In case, the present petitioner fails to produce the certified copy of this order before the authority concerned within 15 days from today, the benefit of this order would not be available to the petitioner.

12. With the above observation, the writ petition is allowed.

Order Date :- 18.10.2023/Raj