Allahabad High Court
Maniram Singh vs State Of U.P. And Others on 16 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1332
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 54 Case :- WRIT - C No. - 16507 of 2012 Petitioner :- Maniram Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- B.M. Tripathi,Badri Mani Tripathi Counsel for Respondent :- C.S.C.,D.D. Chauhan,Diwakar Singh,S.W. Ali,Sayed Wajid Ali Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the petitioner; learned Standing Counsel appearing for respondents no. 1, 2 and 3 Sri Diwakar Singh and Sri Syed Wajid Ali appearing for respondent no. 5 namely the complainant.
2. By means of this petition under Article 226 of the Constitution, the petitioner has assailed the order dated 15.7.2011 whereby the recall application of the petitioner in respect of orders dated 23.11.2005 and 29.5.2007 directing dispossession of the petitioner from land in question has been rejected. The petitioner has also challenged the orders in revision passed by the Collector on 3rd January, 2012 rejected the revision petition.
3. Briefly stated facts are that the petitioner was proceeded with by issuance of notice on paper no. 49A initiating proceedings under Section 122-B of the U.P. Zamidari Abolition and Land Reforms Act, 1850. The petitioner submitted objection but in a cursory manner the order was passed on 23.11.2005 holding the petitioner to be in unauthorized and directing his ejectment from the land in question.
4. The petitioner preferred recall application as admittedly the order was passed without giving any proper opportunity of hearing to the petitioner. It appears that while the miscellaneous application was filed for recall of the said order, an order came to be passed by the Tehsildar, Soraon on 25.5.2007 correcting the name of Mani Ram Singh S/o Ram Chandra Singh as Mani Ram Singh putra Ram Pal Singh and taken it to be affirmed by the order dated 23.11.2005.
5. The District Magistrate, thereafter passed an order dated 26/27.10.2007 directing for execution of the order dated 23.11.2005.
6. From the order-sheet it transpires that an order was passed on 1.6.2007 and gist of the order is as under:
"ex parte order is recalled in the interest of justice"
7. However, the said order dated 1.6.2007 which required hearing afresh was not taken note of by the then District Magistrate while passing the order dated 27.10.2007 and all of a sudden on 9.4.2008 an order was passed that on the basis of the spot inspection carried out in the present of the parties at the hand of Lekhpal, the petitioner Mani Ram Singh S/o Ram Pal Singh was found to be in possession of chak road and accordingly the matter was directed to be put up for orders. On 18.4.2008 the Assistant Collector I Class recalled the order dated 1.6.2007 approving the report and the proceedings instituted and the construction of brick built house. While recalling the order dated 1.6.2007 the Lekhpal directed for notice under Section 49-C which means ejectment. An application was moved for recalling the order that was rejected vide order dated 15.7.2011 against which revision has been dismissed.
8. The argument advanced by the learned counsel for the petitioner is that the gross impropriety was committed by the Revenue Authorities and the administration in conducting the proceedings under Section 122-B of the U.P Zamidari Abolition and Land Reforms Act. He argues that once order came to be recalled in so many words by the Tehsildar on 1.6.2007 directing for conducting the proceedings afresh, there was no occasion to recall the said order by the Assistant Collector Ist Class on 18.4.2008 relying upon some report of 9.4.2008. He submits that the observation came in the order-sheet that the inspection was carried out on the spot in presence of the parties and that the petitioner was found in illegal possession of chak road, is absolutely false, inasmuch as there is no spot memo prepared nor, available on record and the authorities have proceeded wholly illegally in the matter.
9. He questions the conduct of the administrative officers in so for carrying out the order dated 23.11.2005 merely on the basis of correction in the name of occupant on 29.5.2006 whereas the application for recall of the said order was still pending. He submits that the District Magistrate while passing the order on 27.10.2007 absolutely failed to consider the order dated 1.6.2007 and wrongly interpreted the same in favour of the order dated 23.11.2005. He submits that the authorities below as well as the Collector has failed to appreciate the controversy relating to party involved in ejectment proceedings under Section 122-B of the U.P. Zamidari Abolition and Land Reforms Act, inasmuch as principles of natural justice were grossly violated and further the proceedings that were conducted were not supported by cogent and convincing material available on record.
10. Learned Standing Counsel as well as the counsel appearing on behalf of the contesting respondent submit that initially the order was passed on 23.11.2005 after considering the objection of the present petitioner and, therefore, the miscellaneous recall application itself was misconceived. They further submit that the petitioner had even earlier made encroachment upon chak road and, therefore it needed no interference by this Court under Article 226 of the Constitution. Learned Standing Counsel has justified the order passed by the authorities for the reasons contained therein.
11. Having heard learned counsels for the parties and their arguments across the bar and having perused the record, I find that the first order that was passed on 23.11.2005 was in fact passed in a very perfunctory manner and there was hardly any consideration of the reply submitted by the petitioner for proper appreciation of the controversy the order is reproduced here-under:
"Case called out. O.P. is not present, O.P. has not moved any adjournment application. It seems that notice 49-A is now accepted to O.P. and he does not want to contest the notice as well as the present. Thus, it looks proper to pass the eviction order finalizing the proposed damages.
Thus the O.P. Shri Mani Ram Singh son of Shri Ram Dhan Singh R/o Village Madani Pargana Soraon be evicted from the disputed land i.e. plot no. 788 8M meas8uring 0.010 hect. And Rupees ten thousand only (i.e. Rs. 10,000) as damages and Rs. 101/- as execution charges be recovered from O.P. notice 49-C be issued. File be consigned after due for maliites.
Sd.
23.11.05
(Rajesh Kumar Srivastava) Asst.CollectorIstClass /
Tehsildar (Judicial), Soraon."
12. From the perusal of the order it clearly transpires that the authority had presumed unauthorized possession of the petitioner, who did not appear and thereafter passed the order. The petitioner moved a recall application recalling the same in the meanwhile the said order came to be corrected in the sense that father's name of the petitioner got corrected, however, as a matter of fact and, as the order-sheet reflects, the ex parte order was recalled on 1.6.2007.
13. The argument advanced by the learned counsel for the petitioner finds weight as the District Magistrate while proceeding to pass the order dated 27th October, 2007 had failed to notice the order dated 1.6.2007 and wrongly interpreted the order dated 29.5.2007 as if the order is passed affirming the order dated 23.11.2005.
14. From the bare reading of the order dated 1.6.2007, referred to above in this judgment, it clearly transpires that the authority proceeded to annul the ex parte order and there can be no two opinion about it and any interpretation to the contrary would certainly lead to serious miscarriage of justice. Initially as I have observed that the order dated 23.11.2005 was passed without considering the reply of the petitioner. But I find that for recalling the order dated 1.6.2007 the Presiding Officer has relied upon the order-sheet dated 9.4.2008 which mentions about the spot inspection, however, there is no mention in the order-sheet of any date of spot inspection memo nor, there is any spot inspection memo available on record.
15. Ms. Archana Agnihotri the present Tehsildar of the Tehsil Soraon who has appeared in compliance of the order of this Court dated 3.7.2018 to render her kind assistance, has admitted that there is no spot memo available on record. Under the circumstances the only inference that can be drawn is that the Tehsil Authorities and the administration collusively acted in the matter in getting the petitioner evicted from the land in question and that too without holding any proper enquiry and getting proper report, recalled the order dated 1.6.2007.
16. Petitioner's recall application has been simply rejected by the order dated 15.7.2011 on the ground that once on 1.6.2007 the order has already been recalled. As I have already observed above that there is gross impropriety committed by the authorities in recalling the order dated 1.6.2007, the order dated 15.7.2011 cannot be justified and deserves to be quashed. I also find that the Collector has simply concurred with the orders passed by the authorities and has mentioned about the spot inspection carried out on 1.4.2008, but there is not such spot memo available on record and, therefore, the findings returned by the Collector is perverse and cannot be sustained in law. Even otherwise I find that since the very initial order dated 23.11.2005 was passed in wholly illegal manner and gross impropriety was committed in conducting the proceedings under Section 122-B of the U.P. Zamidari Abolition and Land Reforms Act, the entire proceedings and the order passed thereunder deserve to be quashed.
17. The proceedings therefore, carried out against the petitioner under Section 122-B of U.P. Zalidari Abolition and Land Reforms Act and the order passed therein dated 23.11.2005 corrected on 29.5.2007, affirmed on 21.6.2011 and finally affirmed by the Collector vide order dated 3.1.2012 and consequential action, if any, taken deserve to be quashed and are quashed. It is directed that the respondents shall not interfere with the possession of the petitioner except in accordance with law and the procedure prescribed under the U.P. Revenue Code, 2006.
18. The writ petition stands allowed.
19. Since the Tehsildar, Soraon was asked to render assistance and the Court is satisfied with the answer and the assistance rendered by the Tehsildar, She is discharged from the case.
20. Original records are also returned to the learned Standing Counsel.
Order Date :- 16.7.2019 Nadeem Ahmad