Allahabad High Court
Sukh Lal vs State Of U.P. Thru. Prin. Secy. Revenue, ... on 22 May, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38849
Court No. - 18
Case :- WRIT - C No. - 4557 of 2024
Petitioner :- Sukh Lal
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lucknow And Others
Counsel for Petitioner :- Ravi Shankar Mishra,Dheeraj Kumar Yadav
Counsel for Respondent :- C.S.C.,Pankaj Gupta
Hon'ble Manish Kumar,J.
1. Heard.
2. Present petition has been preferred for quashing of the impugned appellate order dated 28.03.2024 passed by the Collector, Pratapgarh-respondent no. 2 in Appeal No. 53 of 2024 (Computerized Case No. D202402570000053) (Suikh Lal Vs. Gram Sabha) and impugned order dated 07.12.2023 passed by the Assistant Collector/Tehsildar (Judicial) Sadar, District Pratapgarh-respondent no. 3 in Case No. 00749 of 2020 (Computerized Case No. T202002570300749) (Gram Sabha Vs. Sukh Lal).
3. Learned Counsel for the petitioner has submitted that the proceedings under Section 67 of the U.P. Revenue Code, 2006 (for brevity, the Code, 2006) had been initiated against the petitioner for alleged encroachment on the land which is entered as Banjar in the revenue records. In the proceedings under Section 67 of the Code, 2006, the petitioner had filed his objection taking a plea that he is entitled for the benefit of Section 123 of the U.P. Z.A.&L.R. Act, 1950 (hereinafter referred to as, the Act, 1950) as the petitioner belongs to backward class, below poverty line and falls under the category of village artisan.
4. It is further submitted that the Tehsildar was to decide the matter under Section 67 alongwith 67 A (1) of the Code, 2006 which stipulates certain house sites to be settled with existing owners thereof and the petitioner is in possession of the said land since the year 1975 and his name was entered in the revenue records at the time of first and second settlement.
5. It is further submitted that the petitioner in his objection filed in the proceedings under Section 67 (1) of the Code, 2006 has raised a plea of statutory protection/benefit and once such a claim is raised by a person, then the Tehsildar would be under an obligation to decide the same under Section 67 A (1) of the Code, 2006.
6. It is further submitted that as per the law settled by this Court in the case of Rishipal Singh Vs. State of U.P. & others reported in (2022) SCC OnLine All 829, wherein it has been held, that 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. The said case has recently been followed by this Court in the case of Shatrohan VS. State of U.P. and others (Writ C No. 6430 of 2023).
7. It is further submitted that Appellate Court had also upheld the order passed by the Tehsildar under Section 67 of the Code, 2006 without application of mind .
8. On the other hand, learned Standing Counsel and the learned Counsel representing the Gaon Sabha concerned are unable to dispute the law laid down by this Court in the case of Rishipal (supra) and also unable to dispute that the petitioner has taken a plea of the benefit of Section 123 of the Act, 1950, which is equivalent to the Section 67 A (1) of the Code, 2006. Tehsildar has not considered the case of the petitioner under Section 67 (A) (1) while deciding the matter under Section 67 of the Code, 2006.
9. After hearing learned counsel for the parties and going through the record of the case, the position which emerges out in the present case is that the Tehsildar while deciding the case of the petitioner had failed to consider the objection and the claim of the petitioner i.e. claiming his right in pursuance of Section 123 of the Act, 1950 that is pari-materia to the Section 67 A (1) of the Code, 2006. Once the petitioner had claimed his statutory right or protection then it was obligatory upon the Tehsildar to decide the case under Section 67 A of the Code, 2006 while deciding the proceedings under Section 67 (1).
10. The relevant extract of the judgment of this Court in the case of Rishipal (supra) is being reproduced hereinbelow:-
"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.
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11. The Appellate authority has also upheld the order passed by the Tehsildar and failed to appreciate that the Tehsildar had not considered the case of the petitioner under Section 67 A (1) of the Code, 2006.
12. Learned Standing Counsel and learned Counsel for the Gaon Sabha, as mentioned above, are not in a position to dispute the law laid down by this Court in the case of Rishipal (supra) and are also unable to dispute that while deciding the application/case under Section 67 (1) of the Code, 2006, the Tehsildar had not considered the case of the petitioner under Section 67 A (1) of the Code, 2006.
13. In view of the facts, circumstances and discussion made hereinabove, the impugned orders dated 28.03.2024 and 07.12.2023 passed by respondent nos. 2 and 3 respectively are quashed.
14. The matter is remanded to the Assistant Collector/Tehsildar (Judicial) Tehsil-Sadar District Pratapgarh-respondent no. 3 to decide the matter afresh in the light of the observations made hereinabove expeditiously without granting any unnecessary adjournment to the parties.
15. Writ petition is allowed.
Order Date :- 22.5.2024
Ashish
