Saukin Singh vs State Of U.P. And 3 Others
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Allahabad High Court

Saukin Singh vs State Of U.P. And 3 Others on 31 May, 2024

Author: Saral Srivastava

Bench: Saral Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:100082
 
Court No. - 7
 

 
Case :- WRIT - C No. - 11407 of 2024
 

 
Petitioner :- Saukin Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mahmoodul Hasan Khan,Md. Muzzammil.I.Qureshi
 
Counsel for Respondent :- Arun Kumar Pandey,C.S.C.
 

 
Hon'ble Saral Srivastava,J.
 

1. List has been revised. Learned counsel for private respondent no.4 is not present.

2. Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents no.1 to 3.

3. The petitioner by means of present writ petition has assailed the order dated 08.07.2021 & 24.05.2022 passed by respondent no.3-Tehsildar (Judicial), Tehsil Bijnor, District Bijnor in Case No.76 of 2019, under Section 67 of the U.P. Revenue Code and the order dated 28.11.2023 passed by respondent no.2-Additional Collector (Judicial), District Bijnor in Case No.1084 of 2022, under Section 67(5) of the U.P. Revenue Code.

4. Considering the nature of the order to be passed in the present writ petition, this Court is not inclined to call for any counter affidavit.

5. Brief facts of the case are that the petitioner and his ancestors are permanent resident of Village Nanupura, Haldaur, Pargana Daranagar, Tehsil Bijnor, District Bijnor over the part of Plot/Gata No.184 of Khata No.293 carved out from Gata no.523 and are living there for the past 25 years before the initiation of proceeding of first consolidation started in the year 1956-1957.

6. A proceeding under Section 67 of the U.P. Revenue Code was initiated against the petitioner on the basis of report of the Lekhpal dated 05.10.2018 which was registered as Case No.76 of 2019, under Section 67 of the U.P. Revenue Code, 2006 on the allegation that the petitioner has illegally encroached upon the land bearing plot No.187M of Gaon Sabha which is recorded as pond in the revenue record by raising illegal construction.

7. In the aforesaid proceeding, a notice was issued to the petitioner on 14.01.2019 under Section 67(1) of the U.P. Revenue Code and the petitioner filed objection to the aforesaid notice on 31.08.2020 contending inter alia that he has not encroached the land of Gaon Sabha by constructing house and further the Lekhpal has sent notice without demarcating the land in question. He further submitted that proceeding drawn against him under Section 67 of the U.P. Revenue Code, 2006 is void.

8. The Tehsildar (Judicial), Tehsil Bijnor, District Bijnor by passing the order dated 08.07.2021 held that the petitioner has illegally encroached upon the Gaon Sabha land which is recorded as Pond under Category 6-1, and consequently, ordered for eviction of the petitioner from the land in dispute and imposed damages of Rs.12,485/-.

9. Against the order dated 08.07.2021, petitioner filed a recall/restoration application praying for adducing evidence because due to the Pandemic Covid-19 and lockdown, he could not pursue his case.

10. The respondent no.3-Tehsildar (Judicial), Tehsil Bijnor, District Bijnor by order dated 24.05.2022 rejected the said recall/restoration application of the petitioner on the ground that the petitioner has a remedy of filing appeal under Section 67(5) of the U.P. Revenue Code and held that restoration application is not maintainable.

11. Thereafter, being aggrieved by the orders dated 08.07.2021 & 24.05.2022 passed by respondent no.3-Tehsildar (Judicial), Tehsil Bijnor, District Bijnor, petitioner preferred an Appeal bearing Case No.1084 of 2022, under Section 67 (5) of the U.P. Revenue Code on the ground that on the date 08.07.2021 when the order under Section 67(1) was passed, there was lockdown due to Pandemic of Covid-19 and no judicial work was being conducted. It is further stated that no demarcation of the plot was done by the Tehsildar, and in fact, the petitioner's possession is not over Gata No.187M which is recorded as pond.

12. The Appellate Authority by order dated 28.11.2023 dismissed the appeal of the petitioner. Both the orders are impugned in the present appeal.

13. Challenging the aforesaid orders, learned counsel for the petitioner has contended that it is common knowledge that there was lockdown in the year 2021 due to Pandemic Covid-19, and the date on which the Tehsildar (Judicial) passed the order dated 08.07.2021, there was complete lockdown and no judicial work was being conducted. It is contended that the petitioner had made out a case for recall of the order dated 08.07.2021 but the Tehsildar (Judicial) illegally rejected the recall application of the petitioner. It is further contended that the appellate authority also without adverting to the grounds taken by the petitioner in memo of appeal dismissed the appeal. It is submitted that the impugned orders are in the teeth of the judgment of this Court in the case of Rishipal Singh Vs. State of U.P. and Others, 2023 (1) ADJ 154.

14. Per contra, learned Standing Counsel would contend that it is evident from the order of the Tehsildar that notice was issued to the petitioner, and despite service of notice, petitioner did not appear to contest the case. It is contended that since the report of the Lekhpal is unrebutted, therefore, Tehsildar has rightly placed reliance upon the report of Lekhpal while passing the order dated 08.07.2021. He further submits that the appellate authority has also considered the aforesaid aspect of the matter while dismissing the appeal. Accordingly, he submits that the petitioner has failed to point out any illegality in the impugned orders and writ petition deserves to be dismissed.

15. I have considered the submissions advanced by the learned counsel for the petitioner.

16. Perusal of the order of the Tehsildar (Judicial) dated 08.07.2021 reveals that though the Tehsildar (Judicial) has considered the statement of Lekhpal, but the order of the Tehsildar (Judicial) does not reflect that any opportunity was given to the petitioner to cross-examine the Lekhpal. Further, Tehsildar (Judicial) passed the order on 08.07.2021 and it is common knowledge that in the year 2021, complete lockdown was imposed due to Pandemic Covid-19 and there was advisory that the people should remain in house and do not move out of their houses. In such view of the fact, this Court is of the view that the order impugned dated 08.07.2021 passed by Tehsildar (Judicial) cannot be sustained. The Tehsildar (Judicial) did not advert to the aforesaid ground while deciding the recall application and illegally rejected the recall application of the petitioner.

17. The appellate authority also did not advert to the aforesaid ground and further has failed to consider that the order of the Tehsildar (Judicial) is in the teeth of the judgment of this Court in the case of Rishipal Singh Vs. State of U.P. and Others, 2023 (1) ADJ 154 inasmuch as the order does not reflect that any opportunity was afforded to the petitioner to cross-examine the Lekhpal.

18. In such view of the fact, the orders impugned passed by authorities below are not sustainable in law, and are hereby set aside.

19. The writ petition is allowed and the matter is remanded to the respondent no.3-Tehsildar (Judicial), Tehsil Bijnor, District Bijnor to decide the dispute afresh after giving due notice and opportunity of hearing to all the concerned parties and in the light of the guidelines laid down by this Court in the case of Rishipal Singh (supra).

20. In case, there is any concealment of fact by the petitioner in obtaining the present order, the respondents are at liberty to file recall application to recall the said order.

Order Date :- 31.5.2024

NS