Allahabad High Court
Jawahar Singh vs State Of U.P. And 3 Others on 7 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:82342
Court No. - 53
Case :- WRIT - C No. - 13433 of 2024
Petitioner :- Jawahar Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Punya Sheel Pandey
Counsel for Respondent :- Avinash Chandra Srivastava,C.S.C.
Hon'ble Kshitij Shailendra,J.
1. Heard Sri Punya Sheel Pandey, learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1, 2 and 3 as well as Sri A.C. Srivastava, learned counsel for the respondent no. 4.
2. The proceedings under Section 122-B of U.P. Z.A. & L.R. Act were initiated against the petitioner on the basis of a report dated 02.06.2015 submitted by the Lekhpal. The allegation against the petitioner is that he has encroached upon the Chakmarg by constructing his house in 54 sq. meters and also by putting a hedge and by growing fruits and vegetables on the encroached area.
3. It appears from the record that initially the proceedings were decided ex parte. However, subsequently, the ex parte order was recalled and the proceedings were restored to their original status. The petitioner appeared in the proceedings and filed his objections.
4. The record reveals recording of statement of one Ratan Singh (Lekhpal) and Yashpal Singh and spot was inspected time and again and inspection report was brought on record.
5. By the impugned order dated 10.04.2023, the order dated 26.07.2016 passed earlier has been kept intact holding the petitioner as encroacher and damages have also been imposed. The petitioner preferred an appeal, which has been dismissed by the Additional District Judge (Finance and Revenue), Agra by impugned order dated 12.10.2023.
6. Learned counsel for the petitioner has vehemently argued that the procedure followed by the revenue authorities is contrary to Rules 66 and 67 of U.P. Revenue Code Rules, 2016 and also against the directions issued by this Court in the judgment of Rishipal Singh and others vs. State of U.P. and others; 2023 (1) AWC 4. He submits that whereas one Ranveer Singh (Lekhpal) had submitted report dated 02.06.2015, which is the basis of initiation of proceedings against the petitioner, whose statement was never recorded and statement of some other Lekhpal, namely, Ratan Singh was recorded. He further submits that Ratan Singh in his statement admitted that he had not conducted measurement of Gata No. 220 and also stated that 2.00 meter wide Chakmarg was existing over the plot. Learned counsel for the petitioner, therefore, submits that once Ratan Singh did not inspect the spot, the inspection report on record would be deemed to be not proved in accordance with law and since he himself admitted running of 2.00 meter wide road over Chakmarg, the allegation of encroachment does not stand substantiated. He further submits that one villager Yashpal, whose statement was also recorded, denied the unauthorized possession of the petitioner over the Chakmarg.
7. Learned counsel for the petitioner refers to the guidelines issued by this Court in paragraph 74 of the judgment of Rishipal Singh (supra) and submits that Court/Authority must ensure presence of the person preparing the report and such report should be proved by his statement with a right to aggrieved party to cross questioning him. Learned counsel, therefore, submits that once Lekhpal Ranveer Singh was not examined, statement of other Lekhpal Ratan Singh will have no significance and, therefore, the orders impugned should be quashed.
8. On the other hand, learned standing counsel submits that spot inspection was carried out time and again and the record very well establishes encroachment to the extent of 54 sq.meters. He submits that not only the house has been constructed by the petitioner over the Chakmarg mark but also some gardening activities have been done, which have been noted in every report.
9. Having heard learned counsel for the parties, this court finds that proceedings began on 05-06-2015 with the submission of report by Ranveer Singh (Lekhpal). It is not the case of the petitioner that Ranveer Singh remained posted as Lekhpal even on the date when the evidence was recorded in the proceedings. The only submission made by the learned counsel for the petitioner is that proof of inspection report by another Lekhpal would be dehors the provisions of law as well as directions issued by this Court.
10. The Court finds that Ratan Singh, i.e. subsequently appointed Lekhpal, also carried out inspection on 26-02-2021 and in his statement he proved the report in relation to the said inspection. Culmination of proceedings consumed many years and if the Authority has, in order to adjudicate the factum of encroachment made by the petitioner, got inspection carried out time and again and various reports came into existence, and, further, subsequently appointed Lekhpal, who inspected the spot in 2021, also submitted a report and duly proved the same by his statement, in the opinion of the Court, the requirements of law as regards spot inspection and proof of such report stand fulfilled. It is not the case of the petitioner that he was denied opportunity to cross examine the Lekhpal. The thrust is also upon statement of a villager Yash Pal, who denied unauthorized possession of the petitioner. The submission is also to the effect that there is a contradictory version even of the Revenue Officers in relation to the user of unauthorized possession.
11. This Court is not inclined to accept the submissions advanced on behalf of the petitioner as regards following the procedure prescribed under the U.P. Revenue Code Rules of 2016. Non-production of the same Lekhpal, who had initiated the proceedings in 2015, as a witness would not be fatal to the case of the respondents in the given facts of the case, where the subsequently appointed Lekhpal carried out spot inspection with no change in on the spot position and he not only proved his inspection report but was also cross-examined. Merely because 2.00 meter way was found to exist on the spot cannot be read in favour of the petitioner, particularly in view of the fact that the area of the Chakmarg is 0.0460 hectare, out of which 54 Sq.meters is the extent of encroachment made by the petitioner. The 2.00 running Chakmarg may be its narrowed form due to encroachments made by the petitioner causing inconvenience for all users of Chakmarg.
12. In view of the above discussion, this Court is not inclined to interfere with the orders impugned. However, in the facts of the case, while upholding the orders impugned as far as removal of the encroachment is concerned, this Court exempts the petitioner from the liability to deposit the damages.
13. The Writ Petition stands partly allowed.
14. The orders of dispossession of the petitioner are upheld. However, damages imposed under the orders impugned are set aside, provided the petitioner removes his encroachment of 54 Sq.meters from the spot by the end of July 2024. In case the petitioner does not remove the unauthorized possession, the liability to pay damages would stand revived and encroachment shall be removed forcibly by the respondents.
Order Date :- 7.5.2024/Pkb/
