Allahabad High Court
Yamuna Alias Jamuna And 4 Others vs State Of U.P. And 9 Others on 5 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:16730
Court No. - 50
Case :- WRIT - C No. - 3174 of 2025
Petitioner :- Yamuna Alias Jamuna And 4 Others
Respondent :- State Of U.P. And 9 Others
Counsel for Petitioner :- Abhiuday Mehrotra,Ashutosh Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Chandra Kumar Rai,J.
1. Heard Sri Ashutosh Mishra, learned counsel for the petitioners and Sri Awadhesh Kumar Patel, learned Standing Counsel for the State.
2. Brief facts of the case are that proceeding under Section 67 of the Revenue Code, 2006 have been registered against the petitioners in respect to plot no. 662 Kha. The particulars of the cases are as under:-.
A. Case No. 3919/2024 (Computer Case No. T202415060603919, State Vs. Jhinki Devi), 24.9.2024.
B. Case No. 3918/2024 (Computer Case No. T202415060603918, State Vs. Jamuna), dated 23.9.2024.
C. Case No. 3917/2024 (Computer Case No. T202415060603917, State Vs. Sudama), dated 24.9.2024.
D. Case No. 3822/2024 (Computer Case No. T202415060603822, State Vs. Udayraj, dated 24.9.2024.
E. Case No. 3920/2024 (Computer Case No. T20241506063920, State Vs. Dharmu) dated 24.9.2024.
All the cases were registered on 03.09.2024 and on 23.09.2024/24.09.2024 order for ejectment and damages have been passed against the petitioners by respondent no. 5-Tehsildar. Hence this writ petition on behalf of petitioners for following reliefs:-
I. Issue a writ order, or direction in the nature of certiorari quashing the following impugned orders passed by the Tehsildar/Respondent 5 in:
a) Case No. 3919/2024 (Computer Case No. T202415060603919, State Vs. Jhinki Devi), 24.9.2024. (Annexure No. 1)
b) Case No. 3918/2024 (Computer Case No. T202415060603918, State Vs. Jamuna), dated 23.9.2024. (Annexure No. 2)
c) Case No. 3917/2024 (Computer Case No. T202415060603917, State Vs. Sudama), dated 24.9.2024.(Annexure No. 3)
d) Case No. 3822/2024 (Computer Case No. T202415060603822, State Vs. Udayraj, dated 24.9.2024.(Annexure No. 4)
e) Case No. 3920/2024 (Computer Case No. T20241506063920, State Vs. Dharmu) dated 24.9.2024.(Annexure No. 5)
And further grant an injunction restraining the respondents from entering the property or causing any further damage,
II. Issue any other suitable direction or pass an order as this Hon'be Court may deem fit or proper in the facts and circumstances of the case, and award the costs of the petition to the petitioners.
3. Learned counsel for the petitioners submitted that impugned orders have been passed without notice and opportunity of hearing to the petitioners, as such the impugned orders cannot be sustained in eye of law. He further submitted that proceedings have been registered on 03.09.2024 and on 23.09.2024/24.09.2024 impugned orders have been passed, which fully demonstrates that orders have been passed in violation of principles of natural justice. He next submitted that orders impugned have been passed in violation of principles of natural justice, as such in view of the ratio of Law laid down by the Hon'ble Supreme Court in the case reported in 2009(1) AWC 437 (SC) Committee of Management & Anothers Vs. Vice Chancellors and others, the alternative remedy will not be bar for petitioners to challenge the order impugned under Article 226 of the Constitution of India. He submitted that petitioner, is not in possession of the land recorded as "Banjar", rather petitioner is in possession of "Abadi Land", for last more than 75 year, as such proceeding under Section 67 of the U.P. Revenue Code, 2006 cannot be initiated against the petitioners in respect to "Abadi Land". He placed the revenue entry of the plot in question which are annexed as annexure nos. 7, 8 & 9 to the writ petition in order to demonstrate proceeding under Section 67 of U.P. Revenue Code, 2006 cannot be initiated. He submitted that impugned order for ejectment and damages passed by Tehsildar should be set aside and the proceeding initiated against the petitioners should be dropped.
4. On the other hand, learned Standing Counsel submitted that no interference is required against the orders impugned passed by Tehsildar in proceeding under Section 67 of the U.P. Revenue Code, 2006 as order is appealable under Section 67 (5) of the U.P. Revenue Code, 2006. He further submitted that if the order has been passed in exparte and arbitrary manner, then petitioner can file appropriate application for recalling the order rather writ petition before this Court. He next submitted that the land in dispute is recorded as "Banjar", as such no interference is required in the matter.
5. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
6. There is no dispute about the fact that the orders for ejectment and damages have been passed by the Tehsildar on 23.09.2024/24.09.2024against the petitioners in respect to Plot No. 662 Kha.
7. In order to appreciate the controversy involved in the matter perusal of one of the order sheet of case no. 3919 of 2024, which is annexed along with writ petition will be relevant, which is as under:-
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??????? ?????- 67, ????????- ????? ?????? ?????? ??????-2006
2.9.2024 ?? ?????? ??????? ??????? ??? ???? ??? ?? ???? ????? ???? RC ??????? 20/- ????? ???? ?? ????? ??????? ???????? ?????? 18.9.024 ?? ??? ???
18.9.024 ???????? ???????? RC ??????? 20 ????? ???? ???? ??? ?? ?? ?????? ???????? ??? ???????? ?????? ?????? 24.9.024 ?? ??? ???
24.9.024 ???????? ???????? ????????? ??????? ???? ?? ??? ? ?? ????????? ?? ??? ?? ??? ?????? ???????? ?? ??? ????? ??? ????????? ??? ???????? ???????? ??????? ???
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8. Perusal of the order sheet as quoted above fully demonstrates that proceeding was registered on 02.09.2024 and on 24.09.2024 just within 22 days from the date of registration of proceedings impugned orders for ejectment and damages have been passed in exparte and arbitrary manner in all the five cases except in case no. 3918 of 2024 wherein impugned order has been passed on 23.09.2024.
9. This Court in the Case Reported 2023 (1) A.D.J. 154 Rishi Pal Singh Vs. State and others has laid down that principle for deciding the proceeding under Section 67, 67-A and 67(5) of the U.P. Revenue Code, 2006. Paragraph No. 74 of the judgment rendered in Rishipal (Supra) will be relevant for perusal which are as under:-
" 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.
(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."
10. So far as the alternative remedy is concerned the Hon'ble Apex Court in the Case of Committee of Management (Supra) has held that the alternative remedy will not be bar if the impugned orders have been passed in violation of principles of nature justice. In the instant matter the impugned orders have been in violation of principles of nature justice, as such it will not be proper to relegate the petitioners to avail remedy of appeal.
11. The argument advanced by the learned counsel for the petitioner that petitioners are in possession of "Abadi Land" for last more than 75 year, as such the proceeding under Section 67 of the U.P. Revenue Code, 2006 cannot be initiated against the petitioner also requires consideration by the Tehsildar in proper manner.
12. Considering the entire facts and circumstances of the case, the impugned orders dated 23.09.2024/24.09.2024 passed by respondent no. 5/Tehsildar as mentioned in the payer clause are liable to be set aside and same are hereby set aside.
13. The writ petition stands allowed and matter is remitted back before respondent no. 5-Tehsildar to restore the proceedings of all the five cases to its original number and decide the same afresh, after affording proper opportunity of hearing to the petitioners in the light of the ratio of law laid down by this Court in case of Rishipal Singh v. State of U.P. and Others, reported in 2023(1) ADJ 154 expeditiously, preferably within a period of three months from the date of production of a certified copy of this order.
Order Date :- 5.2.2025
Neetu
