Raju vs The Collector Sitapur And Others
2025 Latest Caselaw 6241 ALL

Allahabad High Court

Raju vs The Collector Sitapur And Others on 19 March, 2025

Author: Irshad Ali

Bench: Irshad Ali

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?A.F.R.
 
Neutral Citation No. - 2025:AHC-LKO:16084
 
Court No. - 4
 

 
Case :- WRIT - C No. - 1002243 of 2001
 

 
Petitioner :- Raju
 
Respondent :- The Collector Sitapur And Others
 
Counsel for Petitioner :- Avadhesh Kumar
 
Counsel for Respondent :- C.S.C.,R.N. Gupta
 

 
Hon'ble Irshad Ali,J.
 

1. Heard Sri Avadhesh Kumar, learned counsel for the petitioner and learned Additional CSC for the respondent - State.

2. Notice was issued to respondent No.3 and on the basis of office report dated 22.01.2025 notice was found deemed to be sufficient upon respondent No.3 in view of provisions contained under Chapter VIII Rule 12 Explanation II of Rules of the Court, therefore, the matter is ready for final disposal.

3. By means of present writ petition, the petitioner is challenging the orders dated 27.11.2000 passed by Additional Tehsildar / Assistant Collector, Sitapur - annexure 5 to the writ petition and order dated 19.01.2001 passed by the Collector, Sitapur annexure - 7 to the writ petition.

4. Factual matrix of the case is that on the basis of report of Lekhpal in regard to plot No.114M/.251 hectare, which was recorded as banjar ghas on revenue papers, a notice was issued to the petitioner that he has unauthorisedly occupied 2000 sq.ft. land and has constructed a house unauthorisedly and damaged gaon sabha property worth Rs.50,000/-.

5. On the said report of Lekhpal dated 14.07.1998 case No.85/190 under Section 122-B U.P. ZA&LR Act was registered as Gaon Sabha Khagesia Mau VS. Raju and thereafter a notice under Section 49-Ka was issued to the petitioner.

6. On receiving the said notice under Section 49-Ka, the petitioner filed an objection on 18.01.1999 on the ground that he was a poor fellow of backward caste and as per family settlement, he got constructed a shot and house to his brother over the portion allotted to him over plot No.113/3 area .045 and in front of the house of the petitioner, there was a land of gaon sabha plot No.114, which was lying vacant and there was no possession of the petitioner and a false report was made by the Lekhpal. Copy of the khatauni extract for the year 1396-1401 F. is annexed as annexure 1 to the writ petition.

7.On 22.09.1998, Satendra Kumar - Lekhpal and on 15.02.2000 Ram Sahai Verma - Lekhpal were produced for oral testimony. ON 11.08.2000, the petitioner produced Abdul Razzak- Pradhan of Gaon Sabha Khagesia Mau, who deposed that he was knowing the petitioner, who was having five brothers - Asha Ram, Ram Asrey, Nankai, Chhotey Lal and Raju (petitioner) and their ancestral house was situated in the village and Ram Swarup - Pradhan had executed a patta of the land in favour of Ram Asrey on which the house was constructed, where the petitioner was living.

8. On 09.10.2000, the petitioner filed an application that he had not occupied even one inch of the disputed plot No.114 of Gaon Sabha Khagesia Mau and therefore, the measurement in presence of counsel for the petitioner be made. On 20.10.2000, the Naib Tehsildar, Khairabad District Sitapur submitted his report to the Tehsildar that he went on the spot and found the possession of the petitioner over plot No.114.

9. The measurements made by the Naib Tehsildar, Khairabad or Lekhpal were made in absence of the petitioner. Moreover, the measurements were not made by fixed points or from Chaumera or Tihadda. No field book was prepared and even the measurements were not cross checked. On 27.11.2000, the Apar Tehsildar / Assistant Collector, Sitapur passed an order to vacated plot No.114 measuring 2000 sq.ft. situated in village Khagesia Mau and a penalty of Rs.5500/- was also imposed.

10. It is stated in the order impugned that on moving an application on behalf of the petitioner on 19.10.2000, the spot inspection was made on 20.10.2000 by him himself and the measurement was made by the concerned Lekhpal and by measurement and inspection, it was clearly proved that the house of the petitioner was constructed over plot No.114.

11. Against the order of Assistant Collector, Sitapur, the petitioner preferred a revision before the Collector, Sitapur on 08.01.2001 denying the possession over the disputed plot No.114 pointing out that his house is constructed over plot No.113/3 area .045. The Collector, Sitapur also dismissed the revision on 19.01.2001 on the ground that by measurement and spot inspection, it was proved that house was constructed by the petitioner over disputed plot No.114 without any permission.

12. While assailing the impugned orders, submission of learned counsel for the petitioner is that the Collector, Sitapur has committed manifest error of law in affirming the judgment and order of the trial court without perusing the lower court record as in the order of trial court it was mentioned that he himself conducted spot inspection, whereas, the same was made by the Naib Tehsildar, Khairabad and not by the trial court.

13. His next submission is that the Naib Tehsildar made inspection in absence of the petitioner in spite of the fact that he requested that the spot inspection be made in presence of his counsel.

14. His further submission is that both the courts below have relied upon spot inspection as well as measurement but no detail has been given that in what manner and how the measurement was made as neither any fixed point was made nor Chaumera or Tihadda was traced out and it was made from two fixed points and no field book was prepared and even cross check was not made of the area.

15. His next submission is that the trial court has not taken in to consideration that no order was passed on the application moved by the petitioner on 19.10.2000 that the measurement be made in presence of counsel for the petitioner and apart from it, the spot inspection was not made in presence of counsel for the petitioner as required and no detail of spot inspection was given to the petitioner and the petitioner was not given opportunity to rebut the same.

16. He submitted that both the courts below have not taken into consideration the fact that reports of Lekhpal could not be proved as it was given by Lekhpal Satendra Kumar and statement was given by Ram Sahai Verma, therefore, the statement of Lekhpal, who was not the complainant is liable to be ignored.

17. Last submission of learned counsel for the petitioner is that the report was also not reliable as details of measurement is not given, scale of measurement is not given and particulars of zarib is also not mentioned.

18. On the other hand, learned Additional CSC for respondent - State submitted that both the orders passed by the lower court are just and valid and no infirmity or illegality has been committed by the courts below. The writ petition is misconceived and is liable to be dismissed with costs.

19. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

20. On perusal of record, it is evident that the proceeding was initiated on the complaint of Lekhpal, who was not examined by the Assistant Collector while passing the impugned order. Another Lekhpal was examined and relying on his statement, the order was passed.

21. On perusal of record, it is also not clear that the spot inspection was made on the basis of revenue records, which was available at the time of inspection. It is also not clear that on what basis it was assumed that possession of the petitioner is on plot No.114 and not on plot NO.113/3. There is no whisper about the application filed by the petitioner for inspection in presence of his Advocate and immediately on 20.10.2000, the inspection was not made in presence of Advocate of the petitioner nor intimation was given to the petitioner, therefore, placement of reliance on the report submitted by Naib Tehsildar is wholly erroneous and the order passed on that basis suffers from apparent illegality.

22. It is also revealed that the statement of fact given by the Lekhpal and report was also not proved while considering the material by the trial court as well as revisional court, therefore, the order appears to be malacious in nature. The courts below have misconstrued the fact that the complaint of the Lekhpal was not proved in any manner, therefore, reliance placed thereon is not acceptable in the eyes of law. The submission made by learned Additional Chief Standing Counsel is devoid of merit and the orders impugned are liable to be set aside by this Court.

23. Accordingly, the impugned orders dated 27.11.2000 passed by Additional Tehsildar / Assistant Collector, Sitapur - annexure 5 to the writ petition and order dated 19.01.2001 passed by the Collector, Sitapur annexure - 7 to the writ petition are hereby set aside.

24. The writ petition succeeds and is allowed.

25. No order as to costs.

Order Date :- 19.3.2025

Adarsh K Singh