Laxman vs State Of Up And 3 Others
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Allahabad High Court

Laxman vs State Of Up And 3 Others on 20 May, 2024

Author: Ashutosh Srivastava

Bench: Ashutosh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:90870
 
Court No. - 5
 

 
Case :- WRIT - C No. - 6136 of 2024
 

 
Petitioner :- Laxman
 
Respondent :- State Of Up And 3 Others
 
Counsel for Petitioner :- Rakesh Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta
 

 
Hon'ble Ashutosh Srivastava,J.
 

Heard Sri Rakesh Kumar Srivastava, learned counsel for the petitioner, Sri Abhishek Shukla, learned Additional Chief Standing Counsel for the State-Respondents and Sri Pankaj Kumar Gupta, learned counsel for the Respondent No.5.

The writ petition has been filed assailing the order dated 16.11.2023, passed by the Respondent No. 2, Collector/District Magistrate, Basti in Appeal No. 897 of 2023 (Laxman Vs. Gram Panchayat and others) under Section 67(5) of the U.P. Revenue Code, 2006, whereby the Appeal of the petitioner has been dismissed and against the order dated 10.11.2022 and 18.05.2023 passed by the Respondent No.3, Tehsildar/Assistant Collector, Ist Class, Tehsil Rudhauli, District Basti in Case No. 1377 of 2020, whereby the petitioner has been held to have encroached upon Araji No. 293, Rakba 0.046 hectare to the extent of 0.002 hectare and a direction has been issued for dispossession of the petitioner from the aforesaid plot and imposed damages to the tune of Rs. 1,14,000/- as well as execution charges to the tune of Rs.5.

Learned counsel for the petitioner vehemently argued that the procedures prescribed under Rule 67 of the U.P. Revenue Code 2006 have not been complied with, inasmuch as, admittedly the order passed under Section 67 of the U.P. Revenue Code 2006 was ex-parte. Recall application was moved, which had been rejected without assigning any reason. The ground taken in the Appeal has also not been addressed by the Appellate Authority and the orders passed by the Appellate Authority are non speaking orders and accordingly, prayer has been made to set-aside the orders and remand the matter afresh. It is contended that the procedure contemplated under Section 67 of the UP Revenue Code has not been followed the procedure contemplated under Section 67 of the UP Revenue Code, has not been followed by the Authorities. It is thus submitted that the impugned orders are liable to be set aside and the writ petition allowed.

Learned counsel for the State respondents and Gaon Sabha have supported the order impugned and submit that the authorities have recorded the findings of facts which call for no interference in writ proceedings and no relief can be granted to the petitioner.

I have heard the learned counsel for the parties and have perused the records. Admittedly, the order passed by the Assistant Collector, Ist Class/Tehsildar, Tehsil Rudhauli, District Basti, under Section 67 of the Code, 2006 is ex-parte. The petitioner took specific grounds in the Appeal under Section 67 (5). Prima facie, the Court finds that the grounds as raised in the Appeal has not been adverted to by the Appellate Authority while dealing with the Appeal.

The manner and the method in which spot inspection is to be conducted, reports prepared and the procedure to be adopted by the Revenue Authorities in exercise of powers conferred under Section 67 of the UP Revenue Code 2006 came up for consideration before a Coordinate Bench of this Court in the case of Rishipal Singh vs. State of U.P. and 3 others (Writ C No. 6658 of 2022) decided on 02.12.2022, reported in 2023 (1) ADJ 154. The Coordinate Bench after considering all aspects of the matter in para 74 of the judgment culled out the guidelines to be adopted as procedure to be applied to proceedings under Section 67, 67A and 26 of the UP Revenue Code for ensuring transparency in the procedure, judiciousness in approach and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing unnecessary harassment to an innocent villager. The guidelines enumerated are as under:

(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.

Prima facie, the Court is of the opinion that the guidelines enumerated have not been followed by the Collector/District Magistrate, Basti and the Assistant Collector, Ist Class/Tehsildar, Tehsil Rudhauli, District Basti, while exercising powers under Section 67 (5) and Section 67 of the UP Revenue Code, 2006.

In view of the above, the impugned order dated 16.11.2023 passed under Section 67 (5) of the UP Revenue Code, 2006 and also the order dated 10.11.2022/18.05.2023 under Section 67 of the Code are hereby set aside. The writ petition stands allowed.

The matter is remitted to the Assistant Collector, Ist Class/Tehsildar, Tehsil Rudhauli, District Basti, to decide the same afresh in the light of the observations and guidelines made in the decision of this Court in the case of Rishipal Singh, (Supra), expeditiously.

Order Date :- 20.5.2024

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