Allahabad High Court
Ram Vishal Pandey vs State Of U.P. Thru. Prin. Secy. Revenue, ... on 16 May, 2024
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:37614
Court No. - 7
Case :- WRIT - C No. - 4300 of 2024
Petitioner :- Ram Vishal Pandey
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lucknow And Others
Counsel for Petitioner :- Bhup Chandra Singh
Counsel for Respondent :- C.S.C.,Mohan Singh
Hon'ble Alok Mathur,J.
1. Heard Sri Bhup Chandra Singh, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 6 and Sri Mohan Singh, learned counsel appearing for respondent no. 7.
2. By means of present writ petition the petitioner has assailed the order dated 16.08.2022, passed by the Tehsildar (Judicial)/Assistant Collector, Tehsil - Sadar, District - Sultanpur who has passed orders under Section 67 of the U.P. Revenue Code, 2006 (hereinafter referred to as "the Code, 2006") holding that the petitioner has encroached upon the Gaon Sabha land as well as order dated 31.12.2022 passed by the Additional Collector (Administration), Sultanpur and order dated 01.05.2024 passed by the Additional Commissioner (Judicial), Ayodhya Division, Ayodhya.
3. It has been submitted by learned counsel for the petitioner that by means of impugned orders the petitioner has been held to have encroached upon Gata No. 196 (Old No. 210), situated at Village - Thanwardari, Pargana - Meeranpur, Tehsil - Sadar, District - Sultanpur which is recorded as old abadi land in the revenue records.
4. It is next submitted by learned counsel for the petitioner that proceedings under Section 122-B of the U.P. Z.A. & L.R. Act were also initiated against father of petitioner with regard to same land i.e. Plot No. 196 in the year 1989. In pursuance to the notices issued by the Tehsildar (Judicial)/Assistant Collector, objections were filed by the father of the petitioner though which he was able to demonstrate that on the said land old permanent structure exists and there is no encroachment and accordingly the Tehsildar (Sadar) while allowing the objections filed by the father of petitioner has discharged the notices.
5. It is further submitted by learned counsel for the petitioner that though in the earlier proceedings land was only 10 dhur, while in the present case allegation for encroachment are with regard to 0.118 hectares and it is submitted that once finding has been already recorded by the Court of competent jurisdiction, contrary finding subsequently in the same proceedings are clearly illegal and arbitrary and deserves to be interfered with.
6. It is noticed that said encroachment has been alleged on Abadi land and it is also asserted that constructions of petitioner on the said land is from the time of fore fathers of the petitioner and accordingly, while deciding the application under Section 67 of the Code, 2006 the Prescribed Authority should have also considered the claim of petitioner if any, under Section 67 of the Code, 2006.
7. In this regard there is consistent opinion by the coordinate Bench of this Court that when ever an application under Section 67 of the Code, 2006 of Gaon Sabha is considered with regard to encroachment made on the Gaon Sabha land and in case it is found that constructions are old, then claim of alleged encroacher(s) under Section 67-A of the Code, 2006 should also be simultaneously considered.
8. A coordinate bench of this Court while dealing with the issue in Writ - C No. 20493 of 2021 - Govind Singh Vs. State of U.P. and 3 Others (decided on 01.09.2021) has held as follows :-
"13. In many instances, as in the present case, a noticee under Section 67 of the Code may invoke the protection of Section 67(A) of the Code to resist the proceedings under Section 67 of the Code.
14. The authority/ court having jurisdiction to decide the proceedings taken out under Section 67 of the Code or Section 67(A) of the Code is the same. When the defence of Section 67(A) of the Code is taken in proceedings of Section 67 of the Code, the same issues will be directly and substantially in issue in both the proceedings. Usually in such matters pleadings, defence, and evidence of the parties are same in both the proceedings. In case proceedings under Section 67 and 67(A) of the Code are conducted separately and in isolation to one another, it would lead to multiplicity of litigation and inconsistent judgments. There will also be an avoidable delay in decision of the controversy and may even result in miscarriage of justice.
15. The courts in proceedings under Section 67 of the Code are under obligation of law to decide the eligibility of the noticee for protection under Section 67(A) of the Code. In case defence under Section 67(A) of the Code is taken by the noticee, the said proceedings shall be registered separately. But both cases will be consolidated and heard and decided together.
16. This procedure would faithfully implement the legislative intent and also serve the interest of justice."
9. Without expressing any opinion on the merits of the case, it seems that constructions in the present case is also very old and consequently this aspect of the matter should also have been considered by the Prescribed Authority.
10. Accordingly, with the consent of learned counsel for the parties, present writ petition is disposed of with liberty to the petitioner to move appropriate application under Section 67-A of the Code, 2006 before the Prescribed Authority. In case any such application is made, the Prescribed Authority shall proceed to consider and decide the same expeditiously, say within six months from the date of production of certified copy of this order before him, alongwith the application under Section 67-A of the Code, 2006.
11. In case the application under Section 67-A of the Code, 2006 is rejected, the petitioner shall be at liberty to approach the Court again assailing the order passed on the application under Section 67-A of the Code, 2006 as well as the orders impugned in the present writ petition.
12. It is provided that till disposal of the application under Section 67-A of the Code, 2006, no coercive action shall be taken against the petitioner in pursuance to the orders impugned in the present writ petition.
13. It is made clear that once orders under Section 67-A of the code, 2006 are passed, protection given by this order shall cease to exist and rights of the petitioner shall be governed by the orders passed on the application under Section 67-A of the Code, 2006.
14. With above directions the writ petition stands disposed of.
Order Date :- 16.5.2024
A. Verma
(Alok Mathur, J.)
