Allahabad High Court
Mo. Sagir vs State Of U.P. Thru. Prin. Secy. ... on 15 September, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:59216
Court No. - 18
Case :- WRIT - C No. - 7557 of 2023
Petitioner :- Mo. Sagir
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lucknow And 2 Others
Counsel for Petitioner :- Anupam Singh,Azam Shafeequi
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Lavania,J.
Heard.
By means of the present petition, petitioner has assailed the order dated 10.04.2023 passed by the opposite party No.2-Collector, Pratapgarh as also the order dated 26.02.2016 passed by the opposite party No.3-Assistant Collector/Tehsildar-Sadar, District-Pratapgarh.
Challenging the order(s) impugned, the learned counsel for the petitioner submitted that at the time of passing of the order impugned dated 26.02.2016, the authority concerned i.e. opposite party No.3 has not followed the procedure prescribed.
Learned counsel for the petitioner further submitted that the procedure which should be followed, after taking note of the statutory provisions, has been settled by this Court in the judgment 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).
In continuation, he further submitted that the order dated 10.04.2023 of appellate authority i.e. opposite party No.2 is also unsustainable in the eye of law as by the same the order dated 26.02.2016, which was passed without adhering to the procedure settled by this Court, has been affirmed.
Learned counsel for the side opposite opposed the present petition. However, he could not dispute the law settled by this Court in the judgment(s) 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(s) impugned.
Considered the submissions made by the counsel for the parties and perused the record.
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 it would 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). Para 74 of the judgment passed in the case of Rishipal Singh (Supra) being relevant is 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."
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.
A perusal of the impugned order(s) indicate that the procedure, as prescribed by this Court, has not been followed, which is also not in dispute. Accordingly, the orders dated 10.04.2023 and 26.02.2016 are hereby set aside. The matter is remanded back to the opposite party No.3-Assistant Collector/Tehsildar-Sadar, District-Pratapgarh, who shall conclude the proceedings within three months from the date of production of certified copy of this order.
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.
With the above observation, the writ petition is allowed.
Order Date :- 15.9.2023
Vinay/-
