Allahabad High Court
Shahabuddin Khan vs State Of U.P. And 3 Others on 15 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:25643 Court No. - 5 Case :- WRIT - C No. - 45545 of 2023 Petitioner :- Shahabuddin Khan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ravi Prakash Singh Counsel for Respondent :- C.S.C. Hon'ble Rajeev Misra,J.
1. Supplementary affidavit filed by the learned counsel for petitioner in Court today, is taken on record.
2. Heard Mr. Ravi Prakash Singh, the learned counsel for petitioner and the learned Standing Counsel for Respondents 1, 2 and 3.
3. Notice on behalf of respondent 4, Gaon Sabha has been accepted by Mr. Arun Kumar Pandey. Even though his name is duly published in the cause list but neither he nor anyone on his behalf is present to oppose the present writ petition even in revised call.
4. Perused the record.
5. Challenge in this writ petition is to the order dated 20.04.2023 passed by respondent-3, Assistant Collector (Ist Class)/Tehsildar, Tehsil-Amroha, District-Amroha in Case No. 14597 of 2022 (Gram Sabha Vs. Shahabuddin Khan) under Section 67 of U.P. Land Revenue Code 2006 ( Annexure-2 to the writ petition) as well as the order dated 23.09.2023 passed by respondent 2, Additional District Magistrate (Judicial), Amroha, District-Amroha in Appeal No. 1336 of 2023 (Shahabuddin Khan Vs. Gram Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) whereby aforementioned appeal filed by the petitioner against order dated 20.04.2023 has been dismissed.
6. Record shows that the dispute relates to Survey Pot No. 71 area 0.174 hectares situate in Village-Salarpur Khalsa, Tehsil & District-Amroha. The Halka Lekhpal submitted a report (R.C. Form-19) dated 29.11.2022 alleging therein that petitioner is in illegal possession and occupation over part of land in dispute. Accordingly, proceedings under Section 67 of U.P. Revenue Code, 2006 were drawn against petitioner and came to be registered as Case No. 14597 of 2022 (Gaon Sabha Vs. Sahabuddin Khan), under Section 67 of U.P. Revenue Code, 2006 in the court of respondent 3, Assistant Collector (Ist Class)/Tehsildar, Tehsil-Amroha, District-Amroha. In compliance of the provisions contained in sub-section 2 of Section 67 of U.P. Revenue Code, 2006, notice (R.C. Form-20) dated 29.11.2022 was issued to the petitioner asking him to show cause why an order of eviction be not passed against him for evicting him from the land in dispute and further why damages be not imposed for causing damage to Gaon Sabha property on account of illegal possession and occupation.
7. In response to the said show cause notice, the petitioner duly appeared and filed his objections dated 20.02.2023 disputing the notice and also the report submitted by the Halka Lekhpal. On behalf of petitioner, it was submitted that petitioner was granted lease regarding the land in dispute, which was cancelled ex-parte vide order dated 20.12.2005. Against the said order, a revision has been filed before the Board of Revenue, which is pending consideration, wherein an interim order has also been passed. On the above conspectus, it was thus urged on behalf of petitioner that proceedings under Section 67 of U.P. Revenue Code, 2006 are liable to be dropped.
8. The objections raised by the petitioner to the proceedings aforementioned were contradicted by the learned counsel for Gaon Sabha before respondent 3. On behalf of state respondents, it was urged that the land in dispute is recorded as a pond. As such, the same is a public utility land and therefore, covered under Section 77 of U.P. Revenue Code, 2006. As such, no lease of the land in dispute could have been granted in favour of petitioner. Furthermore, the concerned Sub Divisional Magistrate by an ex-parte order dated 20.12.2005 has already cancelled the lease granted in favour of the petitioner. Once the lease granted in favour of petitioner has been determined, petitioner has no right to remain in possession over the land in dispute. The status of the petitioner is that of a tresspasser.
9. On the pleadings raised by the parties, the submission urged and considering the material on record, respondent-3, Tehsildar, Tehsil-Amroha, District-Amroha came to the conclusion that the land in dispute is recorded as a pond in the revenue records. Consequently, the land in dispute is a public utility land and covered under Section 77 of U.P. Revenue Code, 2006. Consequently, no right can accrue in favour of petitioner over the land in disptue even on the basis of long and uninterruped possession. Furthermore, the basis of title of petitioner over the land in dispute is the lease granted in his favour, which has already been cancelled vide order dated 20.12.2005. As such, the petitioner is in illegal possession and occupation on the land in dispute. On the aforesaid findings, respondent-3, Tehsildar, Tehsil-Amroha, District-Amroha not only passed an order of eviction against the petitioner from the land in dispute but further awarded damages to the tune of Rs. 20,110/- for causing damage to Gaon Sabha land.
10. Against above order dated 20.12.2005 passed by Sub Divisional Magistrate, Tehsil-Amroha, District-Amroha, petitioner filed an appeal before the appellate authority i.e. The Collector, Amroha in terms of Section 67(5) of U.P. Revenue Code, 2006. Number of grounds were raised in the memo of appeal and also appear to have been pressed before the appellate authority. However, none of the grounds raised in the appeal nor the submissions urged on behalf of petitioner before the appellate authority found favour with respondent 2, Additional District Magistrate (Judicial), Amroha, District-Amroha. Consequently, respondent 2 i.e. Additional District Magistrate (Judicial), Amroha, District-Amroha dismissed the appeal filed by the petitioner by passing an order of affirmance dated 23.09.2023.
11. Learned counsel for petitioner submits that the orders impugned in present writ petition are manifestly illegal and therefore, liable to be quashed by this Court. It is an undisputed fact that lease was granted in favour of petitioner regarding the land in dispute. However, the said lease was cancelled ex-parte vide order dated 20.12.2005. Against order dated 20.12.2005, petitioner has filed a revision before the Board of Revenue under Section 333 of U.P.Z.A. & L.R. Act, which is pending. With reference to the supplementary affidavit filed in Court today, the learned counsel for petitioner submits that an interim order dated 05.01.2006 was passed by Board of Revenue. On the above premise, he, therefore, contends that proceedings under Section 67 of U.P. Revenue Code, 2006 could not have been initiated against the petitioner. Attention of Court was then invited to the order 20.12.2005 passed by respondent-3, Assistant Collector (Ist Class)/Tehsildar, Tehsil-Amroha, District-Amroha. With reference to above, it is submitted by the learned counsel for petitioner that damages have been awarded against petitioner to the tune of Rs. 20,110/-/-. However, the damages so awarded against petitioner is not only illegal, irrational, excessive but also illusionary. There is nothing in the order passed by respondent-3, Assistant Collector (Ist Class)/Tehsildar, Tehsil-Amroha, District-Amroha to indicate the material on the basis of which, the market value of the land in dispute was arrived at or the period of illegal possession of the petitioner over the land in dispute was established. It is also urged that the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016, which provide for a complete mechanism for the purpose of calculating damages, have not been complied with. In the submission of the learned counsel for petitioner, aforesaid illegality existing in the order dated 20.12.2005 passed by respondent-3, Tehsildar, Tehsil-Amroha, District-Amroha were specifically raised in the grounds of appeal and also pressed before the appellate authority. However, the appellate authority without adverting to the aforesaid, has simply passed an order of affirmance by dismissing the appeal filed by petitioner. He, therefore, contends that the appellate authority has failed to exercise the jurisdiction vested in it diligently. Consequently, the order of the appellate authority is not only illegal, unjust but also arbitrary. As such, the same is also liable to be quashed by this Court.
12. On the other hand, the learned Standing Counsel for respondents 1,2,3 has however opposed the present writ petition. He submits that it is an undisputed fact that the land in dispute is recorded as a pond. As such, no lease could have been granted in favour of petitioner regarding the land in dispute. He further submits that the lease granted to the petitioner was an Asami lease and therefore, the term of the lease was only 5 years. After expiry of the period of the lease, petitioner had no legal right to remain in possession over the land in dispute inasmuch as, the petitioner was himself required to vacate the land and no separate proceedings for eviction of the petitioner were from the leased land required to be undertaken by virtue of the provisions contained in Rule 176-A(2) of U.P.Z.A. & L.R. Rules and also the law laid down by this Court Prakati Rai along with others Vs. State of U.P. and Others, 2019 (145) R.D. 396 and Vijay Kumari along with others Vs. Consolidation Officer and others, 2019 SCC OnLine All 4554. It is then submitted by the learned Standing Counsel that the petitioner has objected to the proceedings under Section 67 of U.P. Revenue Code, 2006 primarily on the ground that the order of cancellation of lease granted in favour of petitioner dated 20.12.2005 is an ex-parte order and secondly, the same has been challenged by way of a revision before the Board of Revenue, U.P. Allahabad, wherein an interim order dated 05.06.2006 was passed. However, there is nothing on record to show that the said interim order was extended subsequently from time to time. Referring to the judgment of Supreme Court in Arjan Singh Vs. Punit Ahluwalia, AIR 2008 SC 2718 and Division Bench judgment of this Court in C/m D.A.V. Inter College, Mahoba Vs. State of U.P. and Another, 2009(6) ALJ 397 (D.B.), he submits that if interim order is granted for a limited period, but is not extended subsequently, the same shall come to an end. On the above premise, he submits that since petitioner has no subsisting right, title and interest in the land in dispute, therefore, possession of the petitioner over Gaon Sabha land is illegal. As such, no illegality has been committed by the authorities below in passing an order of eviction against petitioner. However, the learned Standing Counsel could not be dislodged the submissions urged by the learned counsel for petitioner pointing out the illegality in the amount of damages awarded against petiitoner.
13. Having heard, the learned counsel for petitioner, the learned Standing Counsel and upon perusal of record, this Court finds that the land in dispute is recorded as a pond. Consequently, the same is a public utility land and therefore, covered under Section 77 of U.P. Revenue Code, 2006. In view of above, no lease of the land in dispute could have been granted in favour of petitioner. The Court further finds that the lease granted to the petitioner in respect of the land in dispute was cancelled ex-parte vide order dated 20.12.2005. As such, once the lease granted to the petitioner was determined, petitioner has no legal right to continue over the land in dispute. There is nothing on record to contradict the submissions urged by the learned Standing Counsel that the lease granted to the petitioner was an Asami lease. As such, the term of the lease was only 5 years. After the expiry of the period of lease, petitioner could not continue in possession over the leased land. As such, the possession of the petitioner after expiry of a period of lease would be that of a tress-passer. It is true that against ex-parte order dated 20.12.2005, petitioner has filed a revision before the Board of Revenue wherein an interim order dated 05.06.2006 was passed. However, the said interim order was operative till the next date fixed in the reivison. There is nothing on record to show that the said interim order was extended subsequently. In view of the law laid down by the Apex Court as well as this Court as noted herein above, it shall be deemed that no interim order is operating in favour of petitioner in the revision filed by petitioner. As such, no illegality has been committed by both the authorities below in passing an order of eviction against petitioner.
14. However, the Court finds that damages have been awarded against petitioner in derogation of the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016. There is nothing in the order dated 20.04.2023 passed by respondent-3, Assistant Collector (Ist Class)/Tehsildar, Tehsil-Amroha, District-Amroha on the basis of which, respondent-3, Assistant Collector (Ist Class)/Tehsildar, Tehsil-Amroha, District-Amroha has calculated the market vaule of the land in dispute as well as the period of illegal possession over the land in dispute by the petitioner is established. In view of above, the learned counsel for petitioner is right in submitting that the amount of damages awarded against petitioner is not only illegal, irrational, unjust and arbitrary but also illusionary.
14. In view of the discussion made above, the present writ petition suceeds in part and is therefore, partly allowed.
15. The impugned order dated 20.04.2023 passed by respondent-3, Tehsildar, Tehsil-Amroha, District-Amroha in Case No. 14597 of 2022 (Gram Sabha Vs. Shahabuddin Khan) under Section 67 of U.P. Land Revenue Code 2006 ( Annexure-2 to the writ petition) as well as the order dated 23.09.2023 passed by respondent 2, Additional District Magistrate (Judicial), Amroha, District-Amroha in Case No. 1336 of 2023 (Shahabuddin Khan Vs. Gram Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) are maintained insofar as they direct eviction of the petitioner from the land in dispute. However, the damages awarded against the petitioner to the tune of Rs. 20,110/- is hereby quashed. The petitioner shall, however, deposit the cost of the proceedings beforerespondent-3, Tehsildar, Tehsil-Amroha, District-Amroha within a period of one month from today. I
16. In the facts and circumstances of the case, the cost is made easy.
Order Date :- 15.2.2024 Vinay