Allahabad High Court
Surya Prakash Dwivedi vs State Of U.P. And 3 Others on 7 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:21550 Court No. - 5 Case :- WRIT - C No. - 45253 of 2023 Petitioner :- Surya Prakash Dwivedi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Girish Kumar Singh Counsel for Respondent :- C.S.C.,Sher Bahadur Singh Hon'ble Rajeev Misra,J.
Supplementary affidavit filed by the learned counsel for petitioner in Court today is taken on record.
Heard Mr. Girish Kumar Singh, the learned counsel for petitioner, the learned Standing Counsel representing respondents 1, 2 and 3 and Mr. Sher Bahadur Singh, the learned counsel representing respondent 4-Gaon Sabha.
Perused the record.
Challenge in this writ petition is to the order dated 30.09.2021, passed by respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Pooranpur, district Pilibhit in Case No.01694 of 2020 (Gaon Sabha Vs. Hari Prakash Dwivedi and Surya Prakash Dwivedi), under Section 67 of U.P. Revenue Code, 2006 (Annexure-'1' to the writ petition), the order dated 22.07.2022, passed by respondent no.3 in Case No.RST/5516 of 2021 (Surya Prakash Dwivedi Vs...), whereby restoration application filed by the petitioner against the order dated 30.09.2021 was rejected (Annexure-'1' to the writ petition) and the order dated 30.11.2023, passed by respondent no.2-the Collector, Pilibhit in Appeal No.2016 of 2023 (Hari Prakash Dwivedi and others Vs. State), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-'1' to the writ petition), whereby aforesaid appeal filed by petitioner against the orders dated 30.09.2021 and 22.07.2022 passed by the Tehsildar concerned has been dismissed.
Record shows that the dispute relates to survey plot no.146/422 area 0.5260 hectare, which is recorded as Nala i.e. category 6(1) in the revenue records. Halka Lekhpal submitted a report (R.C. Form 19) alleging therein that petitioner has encroached upon the land in dispute. Consequently, after receipt of aforementioned report, Case No.01694 of 2020 Gaon Sabha Vs. Hari Prakash Dwivedi and Surya Prakash Dwivedi, under Section 67 of U.P. Revenue Code, 2006 came to be registered. Notice under Section 67(2) of U.P. Revenue Code, 2006 (R.C. Form 20) was issued to the petitioner but for reasons best known to petitioner, he did not appear before respondent no.3-Tehsildar, Tehsil Pooranpur, district Pilibhit. No objection was filed by petitioner either. Accordingly, respondent no.3 by an ex-parte order dated 30.09.2021 came to the conclusion that since there is nothing on record to disbelieve the report therefore, prima facie, there is illegal possession and occupation of the petitioner over part of Survey Plot No.146/422 area 0.5260 hectare for the last one year. Consequently, not only an order of eviction was passed against the petitioner but also damages were imposed against the petitioner to the tune of Rs.47,340/- vide order dated 30.09.2021 passed by respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Pooranpur, district Pilibhit.
Against above order dated 30.09.2021, petitioner filed a restoration application dated 16.10.2021 seeking recall of aforesaid order. However, the restoration application filed by the petitioner was rejected by respondent no.3 by a cryptic order dated 22.07.2022.
Feeling aggrieved by above orders dated 30.09.2021 and 22.07.2022, petitioner filed an appeal before the appellate authority i.e. respondent no.2-the Collector, Pilibhit, which was registered as Appeal No.2016 of 2023 (Hari Prakash Dwivedi and another Vs. State), under Section 67(5) of U.P. Revenue Code, 2006. In the memo of appeal, it was specifically pleaded by the petitioner that the land in dispute and the land belonging to the petitioner i.e. survey plot no.184 are contiguous plot but situate in different revenue villages. It was thus contended on behalf of the petitioner that until and unless and measurement and demarcation exercise was undertaken to identify the land in dispute and to ascertain whether petitioner has encroached upon the Gaon Sabha land, no order of eviction could have been passed against the petitioner. However, the grounds raised in the memo of appeal as well as the submissions urged on behalf of petitioner before the appellate authority did not find favour with the appellate authority. Consequently, the appellate authority i.e. respondent no.2-the collector concerned came to the conclusion that the view taken by respondent no.3 is correct and there is no illegality in the order passed by him. Accordingly, the appellate authority dismissed the appeal filed by the petitioner vide order dated 30.11.2023, by passing an order of affirmance.
Thus, feeling aggrieved by the orders dated 30.09.2021, 22.07.2022 and 30.11.2023, referred to above, petitioner has now approached this Court by means of present writ petition.
Learned counsel for petitioner contends that the initial order dated 30.09.2021 passed by respondent no.3 is itself illegal and in excess of jurisdiction. Respondent no.3 has failed to exercise of jurisdiction vested in him. Admittedly, the proceedings for eviction were initiated against the petitioner on the report of Halka Lekhpal. However, the Halka Lekhpal did not appear before the respondent no.3 to prove the report. On the above premise, it is thus urged by the learned counsel for petitioner that once the report of Halka Lekhpal was itself not proved in evidence, there was no material evidence available before him on the basis of which encroachment over the Gaon Sabha land could be established against the petitioner. According to the learned counsel for petitioner though the order dated 30.09.2021 passed by respondent 3 contain a recital that a spot inspection was got conducted which also establishes illegal occupation of petitioner on the land in dispute. However, the said recital is vague as it is devoid of material particulars. It is thus urged that the procedure adopted by the respondent no.3 in deciding the proceedings under Section 67 of U.P. Revenue Code, 2006 is not only illegal but also arbitrary. Consequently, the order dated 30.09.2021 is liable to be quashed. It is further contended by the learned counsel for petitioner that as specific ground was raised before the appellate authority that the land in dispute and the land of the petitioner i.e. survey plot no.184 are contiguous plots situate in different revenue villages therefore, no presumption with regard to encroachment over the Gaon Sabha land could have been drawn unless and until there was a specific measurement and demarcation report indicating above. Admittedly, the report of Halka Lekhpal was prepared without giving any notice or opportunity of hearing to the petitioner nor the report of Halka Lekhpal was itself proved in evidence before the respondent no.3. However, irrespective of above the appellate authority ignored the same and relying upon the view taken by the respondent no.3 dismissed the appeal preferred by the petitioner by a cryptic order dated 30.11.2023. On the above conspectus, it is thus urged that the orders cannot be sustained and are therefore liable to be quashed.
Per contra, the learned Standing Counsel representing the State and the learned counsel for Gaon Sabha have opposed the present writ petition. They submit that the land in dispute i.e. survey plot no.146/422 area 0.5260 hectare is recorded as a Nala i.e. category 6(1) in the revenue records. Consequently, the land in dispute is a public utility land and, therefore, covered under Section 77 of U.P. Revenue Code, 2006. As such, no right can accrue to the petitioner over the said land even on the ground of long and uninterrupted possession. Petitioner has failed to establish his right, title and interest over the land in dispute by placing any cogent evidence. As such, no illegality has been committed by both the authorities in directing eviction of the petitioner from the land in dispute. However, the learned Standing Counsel could not dislodge the submissions urged by the learned counsel for petitioner with reference to the record at this stage.
Having heard the learned counsel for petitioner, the learned Standing Counsel representing the State, the learned counsel representing respondent no.4 and upon perusal of record this Court finds that proceedings for eviction of the petitioner from the land in dispute were initiated under Section 67 of U.P. Revenue Code, 2006 on the basis of report submitted by the Halka Lekhpal in respect of Survey Plot No.146/422 area 0.5260 hectare. However, Halka Lekhpal himself did not appear before the respondent no.3 to prove the report submitted by him. As such, there was no material evidence before the respondent no.3 to conclude that petitioner has encroached upon Gaon Sabha land. Further more, in ground no.5 of the memo of appeal, the petitioner has categorically averred that the land of the petitioner i.e. survey plot no.184 (Khata No.151) area 4.0470 hectare is contiguous of the land in dispute i.e. Survey Plot No.146/422 area 0.5260 hectare situate in different revenue villages. In view of above, until and unless and measurement and demarcation exercise was undertaken to identify the land in dispute and to ascertain whether petitioner has encroached upon over the Gaon Sabha land, no order of eviction could have been passed against the petitioner. The appellate authority has completely ignored the grounds so raised before it which is not only illegal and erroneous but also illegal.
In view of above, the present writ petition succeeds and is liable to be allowed.
It is, accordingly, allowed.
The impugned orders dated 30.09.2021, passed by respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Pooranpur, district Pilibhit in Case No.01694 of 2020 (Gaon Sabha Vs. Hari Prakash Dwivedi and Surya Prakash Dwivedi), the order dated 22.07.2022, passed by respondent no.3 in Case No.RST/5516 of 2021 (Hari Prakash Dwivedi Vs...) and the order dated 30.11.2023, passed by respondent no.2-The Collector, Pilibhit in Appeal No.2016 of 2023 (Hari Prakash Dwivedi and others Vs. State), Annexure-'1' to the writ petition, are hereby quashed. Matter is remanded to respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Pooranpur, district Pilibhit, who shall proceed to decide the same after giving due notice and opportunity of hearing to the petitioner and, secondly, after undertaking the measurement and demarcation exercise of the land in dispute after giving due notice and opportunity of hearing to the petitioner at the time of measurement/demarcation exercise by means of a speaking and reasoned order without granting any unnecessary adjournment to either of the parties. The said exercise shall be completed within a period of three months from the date of production of a certified copy of this order.
There shall be no order as to costs.
Order Date :- 7.2.2024.
Rks.