Satya Narayan Gupta vs State Of Up And 4 Others
2024 Latest Caselaw 20125 ALL

Allahabad High Court

Satya Narayan Gupta vs State Of Up And 4 Others on 31 May, 2024

Author: Ashutosh Srivastava

Bench: Ashutosh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?AFR
 
Neutral Citation No. - 2024:AHC:103659
 
Court No. - 5
 

 
Case :- WRIT - C No. - 2967 of 2024
 

 
Petitioner :- Satya Narayan Gupta
 
Respondent :- State Of Up And 4 Others
 
Counsel for Petitioner :- Dinesh Kumar Singh
 
Counsel for Respondent :- S.C.,Vineet Kumar Singh
 

 
Hon'ble Ashutosh Srivastava,J.
 

1. Supplementary Affidavit filed by learned counsel for the petitioner is taken on record.

2. Heard Sri Dinesh Kumar Singh, learned counsel for the petitioner, Sri Abhishek Shukla, learned Additional Chief Standing Counsel representing the State respondents, Shri Bhupendra Kumar Tripathi, learned counsel representing the Respondent no. 4 and Shri Vineet Kumar Singh, learned counsel who has put in appearance on behalf of the respondent no. 5.

3. The writ petition has been filed questioning the legality, propriety and correctness of the order dated 23.11.2023 passed by the District Magistrate, Chandauli, in Case No. 674 of 2023 in Appeal under Section 67 (5) of the UP Revenue Code, 2006 whereby and whereunder the Appeal preferred by the petitioner through the Gram Sabha concerned against the order dated 01.07.2023 passed by the Tehsildar, respondent no. 3 has been rejected and the order dated 01.07.2023 dropping the proceedings under Section 67 of the Code, 2006 against the respondent no. 5 has been upheld.

4. Admittedly, the petitioner is a complainant on whose instance proceedings under Section 67 of the UP Revenue Code, 2006 were initiated against the respondent no.5. On a report being called on the allegations levelled in the complaint the proceedings under Section 67 were dropped. The Appeal filed by the petitioner against the order dropping the proceedings has been rejected.

5. A preliminary objection has been raised by Sri Vineet Kumar Singh, learned counsel for the respondent no. 5 that the writ petition at the instance of the complainant petitioner is not maintainable placing reliance upon a decision of a coordinate Bench of this Court in the Case of Rahul Kumar vs. State of UP and others reported in 2023 (9) ADJ 614.

6. The preliminary objection to the maintainability of the writ petition has been repelled by the learned counsel for the petitioner by submitting that the objection is ill founded in as much as petitioner being a member of the Gaon Sabha is vested with the rights to ensure that the Gaon Sabha land is not encroached upon and places reliance upon a decision of the Coordinate Bench of this Court in the case of Ghanshyam Verma and others vs. State of UP and others reported in 2021 (7) ADJ 67. It is further contended that the Appeal of the petitioner under Section 67 (5) of the UP Revenue Code, 2006 has been rejected and the petitioner cannot be rendered remedy less and is certainly within his rights to assail the order passed in the Appeal in a writ petition where no other statutory remedy is provided under the UP Revenue Code, 2006.

7. This Court on 23.05.2024 while recording the submissions of the respective counsels on the question of maintainability of the writ petition prima facie had opined that the writ petition at the instance of the complainant petitioner whose appeal had been decided against him could maintain the writ petition. However, the case was adjourned to enable the learned counsel for the petitioner to bring on record the Memo of the Appeal. The learned Counsels agreed to make their respective submissions on the maintainability of the writ petition on the next date fixed and accordingly the matter is before this Court.

8. Before this Court dwells into the issue of maintainability of the writ petition at the instance of the petitioner whose status is admittedly that of a complainant, it would be apposite to look into the allegations raised in the complaint against the respondent no. 5.

9. The controversy between the parties is with regard to Arazi No. 227 situate in Mauja Mainur, Patti Chaubisiha, Tehsil-Chakia, District-Chandauli, recorded as 'Kot' in the Revenue Records and is Gram Sabha land. The respondent no. 5 is stated to have illegally occupied the said Gram Sabha land and made temporary constructions over the same. The petitioner is stated to have filed complaint to the revenue authorities apprising them of the illegal encroachment by the respondent no. 5. Acting on the complaint the Assistant Collector/ Tehsildar called for a report and on the basis of the said report issued a notice upon the respondent no. 5 in RC Form-20 requiring the respondent no. 5 to show cause as to why compensation for damage and wrongful occupation not exceeding the amount specified in the notice be not recovered and why he should not be evicted from the land. The respondent no. 5 put in appearance and filed his objections stating that the proceedings under Section 67 of the Code are unwarranted inasmuch as the plot no. 227 is not public utility land rather is an old Abadi of the Zamindars over which their Kothi existed. Plot No. 227 was adjacent to the old Abadi of the village contained in plot No. 186. The ancestors of the petitioner have been residing over the plot by building their houses. Later on an amendment in the objections were sought which were allowed and according to the amended plea of the respondent no. 5, no constructions exist over plot no. 227 rather it exists over plot No. 225 and the entire proceedings under Section 67 are vitiated. An inspection of the spot is stated to have been carried out on 01.06.2023 and a report to that effect submitted on 01.06.2023 which has been brought on record as Annexure 8 to the writ petition.

10. The Assistant Collector/ Tehsildar Chakia-Chandauli under his order has recorded finding of fact on the basis of the report dated 01.06.2023 that constructions raised by the respondent no. 5 is on Bhumidhari land contained in Gata No. 225 and not on Gaon Sabha Land contained in Plot No. 227 which is the subject matter of the proceedings under Section 67 of the Code. He accordingly ordered for withdrawal of the Notice under RC Form-20 against the respondent no. 5 by order dated 01.07.2023.

11. The petitioner preferred an Appeal against the order dated 01.07.2023 which too has been dismissed upholding the findings of the Assistant Collector/ Tehsildar.

12. It is also not out of place to mention here that instructions on behalf of the state respondents have been received which are taken on record. The instructions clearly state that after proper spot inspection and demarcation by the revenue team it has been found that the disputed constructions of the respondent no. 5 exist over his Bhumidhari plot No. 225 and not over 227 as alleged in the complaint and the notice under RC Form-20 has been rightly withdrawn against the respondent no. 5. In para 5 of the instructions it has been clearly averred that no encroachment of the respondent no. 5 has been found over plot No. 227 and the proceedings for eviction of the respondent no. 5 is unwarranted.

13. Now coming to the issue regarding the maintainability of the writ petition learned counsel for the petitioner does not dispute that the petitioner is a complainant. Learned counsel for the petitioner submits that the land in dispute is Gaon Sabha land and the petitioner being a resident of the same Gaon Sahba has a interest in the land of the Gaon Sabha. In case of encroachment over Gaon Sabha land the petitioner being aggrieved by the order of the Assistant Collector/ Tehsildar dropping the proceeding sunder Section 67 of the Code, 2006 had a right to maintain the Appeal under Section 67 (5) of the Revenue Code, 2006 as the Provision provides that any person aggrieved may within thirty days from the date of such order prefer an appeal to the Collector. The petitioner preferred an Appeal which has been rejected by the impugned order. He is thus aggrieved by the impugned order rejecting the Appeal as also the order dropping the proceedings under Section 67 of the UP Revenue Code, 2006 and can maintain the instant writ petition. Reliance has been placed upon the case of Ghanshyam Verma and others vs. State of UP and others reported in 2021 (7) ADJ 67.

14. Per contra, Sri Vineet Singh, learned counsel for the respondent no. 5 submits that the instant writ petition at the instance of the petitioner who was admittedly a complainant is not maintainable as he cannot be said to be person aggrieved. Reliance has been placed upon the decision in the Case of Rahul Kumar Vs. State of UP and others reported in 2023 d(9) ADJ 614 and also in the case of Shambhunath Pandey vs. State of UP and 6 others, Writ C No. 29440 of 2021, decided on 10.11.2021 Neutral Citation No. 2021:AHC:134861.

15. I have heard the respective counsels for the parties and have perused the materials on record and have also gone through the case laws cited at the Bar.

16. In the opinion of the Court the case of Ghanshyam Verma (supra) cited by learned counsel for the petitioner lays down the proposition of law regarding the maintainability of an Appeal under Section 67 (5) of the Revenue Code, 2006 by a person aggrieved. In that case the challenge to the order of the Assistant Collector First Class/ Tehsildar was laid by which the Notice/ RC From-20 issued to the opposite party therein in proceedings under Section 67 of the UP Revenue Code 2006 had been withdrawn and the Appeal preferred against the said order was dismissed as not maintainable as the Appellant was not a party to the proceedings and thus could not be said to be aggrieved. The Court after correctly interpreting the provisions of Section 67 (5) of the Revenue Code, 2006 and taking note of the fact that the provision 67 (5) used the expression " Any person aggrieved" and not "Any Party aggrieved" held that an Appeal by a non party to the proceedings but aggrieved would be maintainable. The Court proceeded to entertain the writ petition being of the considered view that the Appeal was maintainable but was illegally dismissed as not maintainable on the ground that the Appellant was not party to the proceedings.

17. The factual position in the instant case at hand is slightly different inasmuch as the Appeal filed by the petitioner under Section 67 (5) has not been dismissed as not maintainable rather has been decided on merits recording findings in favour of the respondent no. 5 that there was no encroachment found and in fact the encroachment alleged was found to be over the Bhumidhari plot of the respondent no. 5 and consequently the proceedings were dropped.

18. The moot question for consideration of the Court is whether in the given set of facts the writ petition at the instance of the petitioner is maintainable.

19. The case of Rahul Kumar (supra) cited by Sri Vineet Singh, learned counsel for the respondent no. 5 in turn relies upon the Full Bench decision of this Court in the Case of Vivekanand Yadav vs. State of UP and another reported in 2010 (10) ADJ 1 (FB) as also upon the decision of the Coordinate Bench of this Court in the Case of Narendra Kumar vs. State of UP and others reported in 2013 (1) ADJ 228.

20. The question as regards the locus standi of a Complainant came up for consideration before the Apex Court in the case of Ravi Yashwant Bhoir Vs. Collector reported in 2012 (4) SCC 407 wherein the Apex Court in para 58 of the judgment proceeded to observe as under:

"58. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria"

21. Then again a Division Bench of this Court in the case of Dharam Raj Vs. State of UP and others reported in 2010 (2) AWC 1878 (All) with respect to locus of a Complaint observed as under:

"9. As evident from narration of the facts given above, it is evident that the petitioner was one of the complainants in the complaint against the respondent No. 4 on 12.3.2008. The action has since been taken on the complaint so made by the petitioner and others against the respondent No. 4, and fine of Rs. 5,000 has been imposed.

10. In the circumstances, the petitioner cannot have any grievance in the matter, and he is not an aggrieved person rather he is a person annoyed,

11. In the case of R. v. London Country Keepers of the Peace of Justice, (1890) 25 QBD 357, the Court has held:

A person who cannot succeed in getting a conviction against another may be annoyed by the said findings. He may also feel that what he thought to be a breach of law was wrongly held to be not a breach of law by the Magistrate.

He thus may be said to be a person annoyed but not a person aggrieved, entitle to prefer an appeal against such order.

12. According to our opinion a "person aggrieved" means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense.

13. It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. by filing a writ petition. Writ petition under Article 226 of the Constitution is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfied the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction [Utkal University etc. v. Dr. Nrusingha Charan Sarangi and Ors. AIR 1999 SC 943 and Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. (2003) 5 SCC 413].

14. Legal right is an averment of entitlement arising out of law. It is, in fact, an advantage or benefit conferred upon a person by a rule of law, [Shanti Kumar R. Canji v. Home Insurance Co. of New York AIR 1974 SC 1719 and State of Rajasthan v. Union of India and Ors. AIR 1977 SC 1361).

15. In Jasbhai Motibhai Desat v. Roshan Kumar Hazi Bashir Ahmad and Ors.: AIR 1976 SC 578, the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of a rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition. The Hon'ble Apex Court observed as under:

Such harm or loss is not wrongful in the eye of law because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Judicially, harm of this description is called damnum sine injuria. The term injuria being here used in its true sense reason why law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstratively clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully effect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a "person aggrieved" to challenge the ground of the no objection certificate."

In Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. and Ors. MANU/SC/1151/1997MANU/SC/1151/1997 : (1997) 4 SCC 452, the Hon'ble Supreme Court again considered the meaning of "person aggrieved" and "locus of a rival Government undertaking" and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected.

16. The view taken by us that the petitioner is not a person aggrieved, thus he has no locus standi to file the present writ petition thereby challenging the order dated 16.3.2009 passed by Sub-Divisional Magistrate, Jaisinghpur, district Sultanpur is also supported by the decision of this Court in the case of Suresh Singh v. Commissioner Moradabad Division 1993 (1) AWC 601, where it was held that in an inquiry under Section 95(g) of the U.P. Panchayat Raj Act, 1947, the complainant who was Up-Pradhan could be a witness in. an inquiry but had no locus standi to approach this Court against the order of the State authorities, for the reasons that none of his personal statutory right are affected.

17. As such the petitioner has no locus standi to file the present writ petition under Article 226 of the Constitution of India. Even otherwise having regard to the facts and circumstances of the case, we are not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India. "

22. In the light of the above and taking note of the fact that the petitioner had been permitted to file an Appeal under Section 67 (5) of the Code which has been decided against him by the impugned order, the Court is of the opinion that the writ petition at the instance of the petitioner is maintainable. The petitioner cannot be left remedy-less to challenge a decision rendered against him in a statutory Appeal where no other statutory remedy is provided. the writ petition is thus held to be maintainable. However, maintainability of the writ petition is one thing while entertainability of the writ petition is another. Maintainability of the writ petition does not mean that the writ petition is liable to be entertained also.

23. Now coming to the entertainability of the writ petition the Court on the perusal of the impugned order under Section 67 of the Code 2006 is of the opinion that the proceedings against the respondent no. 5 have been dropped on the ground that after proper survey of the plot by the Revenue Team and the report dated 01.06.2023 submitted along with the field Book it was found that the alleged constructions existed over plot No. 225 which is the Bhumidhari of the respondent no. 5 and not over plot No. 227 alleged in the RC Form-20 issued against him. The entire case of the petitioner is based upon the report dated 17.12.2017 on the basis of which the proceedings under Section 67 is stated to have been initiated. The report dated 17.12.2017 was submitted without proper survey. Once the objections were filed by the respondent no. 5, fresh survey/ demarcation by taking fixed points was carried out and it was found that alleged constructions existed over plot No. 225 and not over 227. The petitioner in the entire writ petition has not been able to demonstrate how the report dated 01.06.2023 is bad.

24. In view of the above the Court finds that though the writ petition at the instance of the petitioner/ complainant is maintainable against the order rejecting his appeal under Section 67 (5) of the UP Revenue Code, 2006, but there exists no good ground to interfere with the impugned orders. As a result the writ petition is dismissed being devoid of merits. There shall however be no order as to Costs.

Order Date :- 31.5.2024

Deepak/