Allahabad High Court
Ram Kishun Yadav vs State Of U.P. And 4 Others on 6 September, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:175435
Court No. - 51
Case :- WRIT - C No. - 23547 of 2023
Petitioner :- Ram Kishun Yadav
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Anil Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Anil Kumar Singh, learned counsel for the petitioner and Sri R.C. Srivastava, learned Addl. C.S.C. for the state-respondents.
2. The instant writ petition has been filed for the following reliefs:-
"(a) to issue a writ,order or direction in the nature of mandamus directing the respondents to get the house of the petitioner construct on the Arazi No.1945 area 45 Kari (18 Air) on the expenses from the state exchequer or to permit the petitioner to construct his house on Arazi no.1945 area 45 Kari (18 Air) himself and compensate the amount of expenditure in constructing the house of the petitioner himself on Arazi No.1945 within reasonable period;
(b) to issue a writ order or direction in the nature of mandamus directing the respondents to get the area of Arazi No.1945 area 45 Kari (18 Air) Abadi Land on which the house of the petitioner was situated and Arazi No.1944 area 0.006 hectare, recorded as manure pit (Khad Ka Gaddha) demarcate, within stipulated period;
(c) to issue such other and further appropriate writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
(d) to award the cost of petition in favour of the petitioner."
3. Counsel for the petitioner submitted that petitioner is in possession of arazi no.1945, area 45 kadi (18 air), situated in village Newada Sultanpur, Badagaon, Tehsil Madhuban, District Mau. It is further submitted that plot no.1944, area 0.006 hect. (khata no.2081) is recorded as manure pit in the revenue records. He further placed the revenue records in respect to plot nos. 1945 & 1944 in order to demonstrate that plot no.1945 is recorded as abadi and 1944 is recorded as manure pit. The submission further is that proceeding under Section 67 of the U.P. Revenue Code, 2006 was initiated in respect to plot no.1944 in which one Indu Devi, wife of Jai Prakash has filed an objection which is still pending. The submission further is that the Tehsildar Madhuban, District Mau on 4.8.2022 has ordered for ejectment and damages against the petitioner in respect to plot no.1944, area 0.006 hect. He also submitted that petitioner was neither given any notice by the Tehsildar before passing the order of ejectment and damages nor the petitioner has any concern with plot no.1944 but the construction of the petitioner has been demolished by the state authorities in arbitrary manner. He further placed reliance upon the judgment of this Court reported in 2023 (1) ADJ 154, Rishipal Singh vs. State of U.P. and Others in order to demonstrate that the order for ejectment and damages cannot be passed by the authority under Section 67 of the U.P. Revenue Code, 2006, without affording proper opportunity of hearing as well as without taking proper survey/demarcation of the plot in dispute.
4. On the other hand, learned Addl. C.S.C. submitted that petitioner should file the appeal against the order of Tehsildar or restoration application before the Tehsildar for recalling the order of ejectment and damages dated 9.8.2022 passed by the Tehsildar. He further submitted that writ of mandamus is not maintainable at the instance of the petitioner before this Court under Article 226 of the Constitution of India.
5. I have considered the arguments advanced by learned counsel for the parties and perused the records.
6. There is no dispute about the fact that the petitioner is in possession of plot no.1945 while plot no.1944 is recorded as manure pit in the revenue records. There is also no dispute about the fact that the Tehsildar has passed the order for ejectment and damages dated 4.8.2022 against the petitioner, treating the petitioner to be in possession of plot no.1944.
7. Since the order for ejectment and damages has been passed by the Tehsildar on 4.8.2022 against the petitioner in respect of plot no.1944, without affording proper opportunity of hearing and without conducting proper survey/demarcation, as such, interest of justice requires that petitioner should file proper recall application before respondent no.3 against the order dated 4.8.2022, stating that petitioner is not in possession of plot no.1944 rather petitioner is in possession of abadi plot no.1945.
8. Considering the facts and circumstances of the case, the instant writ petition is disposed of finally, directing the petitioner to file a recall application along with a delay condonation application within a period of 3 weeks from today, before respondent no.3/Tehsildar, Tehsil Madhuban, District Mau, which shall be considered and disposed of, in accordance with law, taking a liberal view on delay condonation matter as well as respondent no.3 shall take into consideration the ratio of law laid down by this Court in Rishipal Singh (supra) for deciding the dispute under Section 67 of the U.P. Revenue Code, 2006. The aforementioned proceeding shall be concluded within a period of 2 months from the date of production of the certified copy of the order.
Order Date :- 6.9.2023/C.Prakash
