Allahabad High Court
Ajmer Singh vs State Of Up And 3 Others on 21 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:92262
Court No. - 52
Case :- WRIT - C No. - 17087 of 2024
Petitioner :- Ajmer Singh
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Ram Chandra Kushwaha
Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani
Hon'ble Vikas Budhwar,J.
1. Heard Sri R.C. Kushwaha, learned counsel for the writ petitioner, Sri Anand Bhaskar Srivastava, learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 to 3 and notice on behalf of respondent No. 4 has been accepted by Sri K.K. Mani.
2. A joint statement has been made by the counsel for the parties that they do not propose to file any affidavit and the writ petition be decided on the basis of the documents available on record. Thus, the writ petition is being decided at the fresh stage.
3. The case of the writ petitioner is that he is the resident of Village Salempur, Pargana and Tehsil Rampur Maniharan, District Saharanpur and he has constructed a house over the Araji No. 248. However, so far as Araji No. 249M is concerned rakba 0.0154 hectare, it is recorded as Johad, however, the same is adjacent to each other.
4. Alleging encroachment on the basis of an ex parte report of the area Lekhpal dated 09.12.2016 proceedings under Section 67(1) of the U.P. Revenue Code, 2006 was initiated whereby the writ petitioner was declared to be an encroacher and monetary penalty was also imposed, against which the writ petitioner claims to have preferred an appeal under Section 67(5) of the U.P. Revenue Code, 2006 before the Collector, Saharanpur in which on 31.07.2001, the matter was remanded back.
5. According to the writ petitioner, post remand on the basis of an ex parte inspection report dated 09.12.2016, an order is stated to have been passed on 15.12.2023 by the Assistant Collector-I Grade/Tehsildar Rampur Maniharan whereby again the writ petitioner has been termed as an encroacher and monetary penalty has also been imposed.
6. Aggrieved against the said order, an appeal is stated to have been preferred before the Additional Collector (Administration), Saharanpur numbered as 316 of 2014 which also came to be rejected on 27.03.2024.
7. Questioning both the orders, the writ petitioner has filed the present writ petition.
8. Learned counsel for the writ petitioner submits that a specific ground had not only been taken in the objection but also in the grounds of appeal that the writ petitioner had constructed house over Khasra No. 248 and not 249 and further on the basis of an ex parte report dated 09.12.2016 of the area Lekhpal, the entire proceedings was initiated and despite a request being made for getting afresh inspection conducted, nothing has been done in that regard and the entire case set up by the petitioner has been brushed aside while negating the claim of the writ petitioner.
9. Reliance has also been placed upon the judgment in the case in Writ-C No. 1891 of 2022 (Prem Singh Vs. Additional Collector & Others) in which interim order has been accorded and also a judgment in Writ-C No. 6658 of 2022 (Rishi Pal Singh Vs. State of U.P. & Others) along with other writ petitions decided on 02.12.2022 wherein modalities and the parameters which were to be adhered to while conducting inspection has been specified.
10. Learned Standing Counsel as well as the counsel appearing for the Gaon Sabha, on the other hand, submits that though the writ petitioner is not liable to be granted any indulgence by this Court particularly when there is a categorical finding recorded by both the authorities that the writ petitioner has encroached upon a public utility land.
11. I have heard the learned counsel for the parties and perused the record carefully.
12. Plainly and simply, the bone of contention between the parties is the fact as to whether the writ petitioner had encroached upon the Araji No. 249 for he had constructed house over Araji No. 248. In order to test the finding of the authority on the said aspect what is required is the pleading and defence set forth by the writ petitioner. The Court finds that in the proceedings under Section 67 of the U.P. Revenue Code, 2006, a specific pleading has been taken in para 7 and so much so in the memo of revision of the appeal, the said ground stands available in para 6. It is the specific case of the writ petitioner that he had made construction over Araji No. 248 but the said issue has neither been noticed nor addressed to. Further, it has also been the case of the writ petitioner before both the forums that on the basis of an ex parte report dated 09.12.2016, a finding has been recorded that the writ petitioner is an encroacher but the authorities have not recorded a finding as to how and why the claim of the writ petitioner has been turned down for holding of a fresh inspection particularly when the earlier inspection was ex parte and the said fact was also brought to notice in the earlier appeal when the matter is remitted back.
13. At this juncture, Sri Anand Bhaskar Srivastava, learned Standing Counsel as well as Sri K.K. Mani who appears for the Gaon Sabha submit that the finding on the said aspects are lacking and in order to find out that the public utility land is not being encroached with, a fresh inspection is required to be conducted and a report be submitted as the report which has been relied upon is eight years back. They submit that the matter remitted back to the Assistant Collector-I Class/ Tehsildar, Tehsil Rampur Maniharan, District Saharanpur to decide the matter afresh.
14. Accordingly, the writ petition is being decided in the following manner: (a) the order dated 15.12.2023 passed by the Assistant Collector-I Grade/Tehsildar, Tehsil Rampur Maniharan, District Saharanpur in Case No. 2821 of 2021 under Section 67 of the U.P. Revenue Code, 2006 as well as the order dated 27.03.2024 passed in Case No. 316 of 2024 under Section 67(5) of the U.P. Revenue Code are set aside; (b) matter stands remitted back to the Assistant Collector-I Class/Tehsildar, Tehsil Rampur Maniharan, District Saharanpur to decide the proceedings under Section 67 of the U.P. Revenue Code afresh after getting a fresh report post inspection; (c) the Assistant Collector-I class/Tehsildar Rampur Tehsil Rampur Maniharan, District Saharanpur shall decide the proceedings strictly in accordance with the judgment in the case of Rishi Pal Singh (supra) within a period of three months from today. While deciding the case, no unnecessary adjournment shall be granted and in case, any adjournment is granted that too in any eventuality, then the same should not be more than three days at one stretch.
15. The writ petitioner as well as the counsel appearing for the respondents are represented through their counsels, thus, it would be presumed that the litigants have knowledge about the said order.
16. Needless to point out that the order passed by this Court may not be construed to be an expression on merits as the authority competent under the statute is to decide the said controversy while applying independent application of mind without being influenced or obsessed with any of the observations made hereinabove.
17. Accordingly, the writ petition stands disposed of.
Order Date :- 21.5.2024
Rajesh
