Allahabad High Court
Ramashray Upadhyay @ Ram Ashray vs State Of U.P. Thru. Prin. Secy. Revenue, ... on 17 May, 2024
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38260
Court No. - 7
Case :- WRIT - C No. - 2964 of 2024
Petitioner :- Ramashray Upadhyay @ Ram Ashray
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lucknow And Others
Counsel for Petitioner :- Shanker Lal Pandey
Counsel for Respondent :- C.S.C.,Pankaj Gupta
Hon'ble Alok Mathur,J.
1. Heard Sri Shanker Lal Pandey, learned counsel for the petitioner as well as learned Standing Counsel for the State respondents and Sri Pankaj Gupta, learned counsel appearing for respondent no. 8.
2. By means of present writ petition the petitioner has assailed the orders dated 04.01.2024 and 13.02.2024, passed by the Tehsildar, Tehsil - Patti, District - Pratapgarh in Case No. 3025 of 2023 (Computerized Case No. T202302570403025) - Gram Sabha Vs. Ramashray.
3. Learned counsel for the petitioner submits that proceedings under Section 67 of the U.P. Revenue Code, 2006 (hereinafter referred to as "the Code, 2006") were initiated against petitioner alleging that he has encroached upon Gata No. 395/0.012 hectares out of total Gata No. 395/ 0.193 hectares, situated in Village - Sonpura, Tehsil - Patti, District - Pratapgarh, which has been recorded as "Banjar" in the revenue records. It is submitted that the petitioner is in continuous possession over the said land for a very long time and the said land is "Abadi" land and also submits that spot inspection conducted during the proceedings were illegal and arbitrary.
4. It is next submitted by learned counsel for the petitioner that no notice was given to the petitioner prior to passing the impugned orders and therefore he could not participate in the proceedings and same on the face of it are illegal and arbitrary being violative of Articles 14 and 21 of the Constitution of India. It is submitted that the petitioner on coming to know about the order of eviction and levying penalty against petitioner dated 04.01.2024, he moved an application for recall which also was rejected by order dated 13.02.2024.
5. It is further submitted by learned counsel for the petitioner that even the recall application was not duly considered by the Prescribed Authority and same order also suffers from illegality and both the impugned orders deserve to be set aside. Lastly, it has been submitted that this aspect of the matter has also been considered by this Court in the case of Rishi Pal Singh Vs. State of U.P. - Writ - C No. 6658 of 2022, where in aforesaid circumstances this Court was of the view that mandatory provisions contained under Section 67 of the Code, 2006 are to be duly complied with and even the revenue authorities who have submitted the report are required to give their statement in the proceedings under Section 67 of the Code, 2006, before orders are passed relying upon the spot inspection report submitted by them.
6. Learned Standing Counsel on the other hand has opposed the writ petition. He has submitted that the land in question was recorded as "Banjar" and accordingly proceedings under Section 67 of the Code, 2006 were initiated against petitioner. He submits that the said land is recorded as banjar and the petitioner could not have occupied the same.
7. On a query made to the learned Standing Counsel, whether the dictum of this Court in the case of Rishi Pal Singh Vs. State of U.P. (Supra) has been followed by the Prescribed Authority, learned Standing Counsel has submitted that bare perusal of the impugned orders does not indicate that conditions as laid down by this Court in the case of Rishi Pal Singh (supra) have been followed.
8. Heard learned counsel for the parties and perused the record.
9. This Court is of the considered view that the petitioner was not heard before passing the order under Section 67 of the Code, 2006 and also that the directions of the coordinate Bench of this Court in the case of Rishi Pal Singh Vs. State of U.P. (supra) were not followed. The Court in the case of Rishi Pal Singh Vs. State of U.P. (supra) has observed 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."
10. After considering the entire conspectus of the case, the impugned orders dated 04.01.2024 and 13.02.2024, passed by the Tehsildar, Tehsil - Patti, District - Pratapgarh in Case No. 3025 of 2023 (Computerized Case No. T202302570403025) - Gram Sabha Vs. Ramashray, are set aside, as mandatory directions of this Court have not been complied with nor the petitioner was given opportunity of hearing before passing the impugned orders.
11. The writ petition stands allowed.
Order Date :- 17.5.2024
A. Verma
(Alok Mathur, J.)
