Allahabad High Court
Deveedeen vs State Of Up And 3 Others on 19 March, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on : - 15.02.2024 Delivered on :- 19.03.2024 Court No. - 83 Case :- WRIT - C No. - 529 of 2024 Petitioner :- Deveedeen Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Roopesh Kumar Nigam,Udantika Counsel for Respondent :- Achal Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. Roopesh Kumar Nigam, the learned counsel for petitioner, Mr. Abhhishek Shukla, the learned Additional Chief Standing Counsel for respondents 1 to 3 and Mr. Ankur Srivastava, Advocate, holding brief of Mr. Achal Singh, the learned counsel representing respondent 4, Gaon Sabha.
2. Perused the record.
3. At the very outset, the learned Additional Chief Standing Counsel for state respondents and the learned counsel representing Gaon Sabha submit that present writ petition be decided finally without calling for a counter affidavit. Learned counsel for petitioner has no objection to the same. Accordingly, with the consent of the counsel for the parties, the present writ petition is being disposed of finally without formally calling for a counter affidavit. Challenge in this writ petition is to the order dated 24.06.2022 passed by respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda in Case No. 01426 of 2020 (Gaon Sabha Vs. Deveedeen), under Section 67 of U.P. Revenue Code, 2006 (Annexure-1 at page 22 of the paper book) as well as the order dated 28.11.2023 passed by respondent 2, Additional District Magistrate (Judicial), District-Banda in Appeal No. 604 of 2022 (Deveedeen Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 at page 19 of the paper book), whereby aforementioned appeal filed by petitioner has been dismissed.
5. Record shows that the dispute relates to Survey Plot No. 596, area 0.0280 hectares and Survey Plot No. 599-Ga, area 0.036 hectares situate in Village-Tarhati Kalinjar, Pargana & Tehsil-Naraini, District-Banda. In Khatauni Khata No. 545 of the khatauni pertaining to 1427 to 1432 F, aforesaid khata was recorded as Naveen Parti. However, in Khatauni Khata No. 546 pertaining to the khatauni of 1427 to 1432 F, aforesaid khata is recored as Banjar.
6. The Halka Lekhpal submitted his report (R.C. Form-19) dated 17.09.2020 alleging therein that petitioner has encroached upon Survey Plot No. 596, area 0.0280 hectare by constructing a pakka house. The report further states that Survey Plot No. 599-Ga, area 0.036 hectare has also been encroached upon by the petitioner inasmuch as, petitioner is practising agriculture over the said land after encircling it with a fence.
7. After receipt of aforementioned report, proceedings under Section 67 of U.P. Revenue Code, 2006 came to be drawn against petitioner. Resultantly, Case No. 01426 of 2020 (Gaon Sabha Vs. Deveedeen), under Section 67 of U.P. Revenue Code, 2006 came to be registered against petitioner in the court of respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda.
8. In compliance of the provisions contained in Section 67(2) of U.P. Revenue Code, 2006, a show cause notice (R.C. Form-20) dated 21.09.2020 was issued to the petitioner asking him to show cause why an order of eviction be not passed against petitioner for his eviction from the land in dispute and secondly why damages be not awarded against petitioner for causing damage to gaon sabha land on account of illegal possession and occupation over the same.
9. In response to the aforesaid show cause notice, petitioner duly appeared before respondent 3 in aforementioned case and filed his objection dated 15.10.2020. According to the learned counsel for petitioner, the report dated 17.09.2020 submitted by the Halka Lekhpal is incorrect. It was further stated that petitioner is the recorded tenure holder of Survey Plot No. 560, 597 and 598, total area 1.752 hectare. The tenure of the petitioner falls in between Survey Plot Nos. 596 and 599. The Halka Lekhpal has submitted his report dated 17.09.2020 without undertaking any measurement exercise. The house of petitioner is standing prior to 1405 F. Proceedings under Section 41 of U.P. Land Revenue Act, 1901 were initiated by the petitioner and the same came to be registered as Case No. 55/58, under Section 41 of U.P. Land Revenue Act, 1901. Vide order dated 21.03.2023, the report dated 23.12.2022 submitted in aforementioned case regarding measurement was confirmed. As such, it cannot be said that petitioner is in illegal possession and occupation over gaon sabha land. The land belonging to the petitioner was illegally occupied by certain persons. Consequently, petitioner initiated proceedings under Section 209 of U.P.Z.A. & L.R. Act in which, an order dated 12.12.2006 came to be passed against illegal occupants of the land belonging to petitioner. It was lastly submitted that the land of the petitioner touches with the boundary of District-Satna, which falls in the State of M.P. on account of which, the correct demarcation cannot be done. On the above premise, it was thus prayed by petitioner that show cause notice dated 21.09.2020 (R.C. Form-20) be withdrawn.
10. The Halka Lekhpal, who had submitted the report dated 17.09.2020, appeared in the court of respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda and proved the report so submitted by him. However, from the perusal of the order impugned dated 24.06.2022 passed by respondent 2, Additional District Magistrate (Judicial), District-Banda, it is not apparent as to whether an opportunity was given to the petitioner to cross examine the Halka Lekhpal. Ultimately, on the basis of the report of the Halka Lekhpal, the objections filed by petitioner as well as the oral and documentry evidence on record, respondent 3 came to the conclusion that petitioner is in illegal possession and occupation over gaon sabha land. Consequently, respondent 3 passed an order dated 24.06.2022, whereby not only an order of eviction of petitioner from the land in dispute was passed but also damages were awarded against petitioner to the tune of Rs. 10,000/-.
11. Against order dated 24.06.2022, petitioner filed an appeal in terms of Section 67(5) of U.P. Revenue Code, 2006 before the Appellate Authority i.e. the District Magistrate/Collector, Banda. The same was registered as Appeal No. 604 of 2022 (Deveedeen Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006. However, none of the grounds raised in the memo of appeal and also pressed before the Appellate Authority i.e. respondent 2, Additional District Magistrate (Judicial), District-Banda. found favour with the Appellate Authority. Consequently, the Appellate Authority dismissed the appeal filed by petitioner by passing an order of affirmance dated 28.11.2023.
12. Thus feeling aggrieved by the above orders dated 24.06.2022 and 28.11.2023 passed by respondents 3 and 2 respectively. Petitioner has now approached this Court by means of present writ petition under Article 226 of the Constitution of India.
13. Learned counsel for petitioner submits that the orders impugned in present writ petition are not only illegal but also in excess of jurisdiction. Consequently, the same are liable to be quashed by this Court. According to the learned counsel for petitioner, it was specifically pleaded by the petitioner in his objection filed before respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda that the land of the petitioner is sandwiched in between the land in dispute. Consequently, without measurement and demarcation exercise, it cannot be conclusively concluded that petitioner has illegally encroached upon gaon sabha land. However, in spite of the aforesaid specific plea having been raised, no steps were taken by respondent 3 to undertake measurement and demarcation exercise of the land in dispute undertaken. As such, respondent 3 has failed to exercise his jurisdiction diligently, which has vitiated the order impugned. It is next contended that admittedly Survey Plot No. 599-Ga is a minzumla plot comprising of various other sub plots. However, no finding has been returned by respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda that partition of various sub plots of Plot No. 599 has been undertaken and the individual plots are represented independently in map. Since Survey Plot No. 599 is a minzumla plot and without there being any partition, the location of Survey Plot No. 599-Ga could not be specifically specified on the spot nor any exercise could have been undertaken regarding the said plots towards measurement and demarcation. Respondent 3 has completely ignored aforesaid aspect of the matter while passing the order impugned dated 24.06.2022, which has vitiated the same.
14. It is lastly submitted by the learned counsel for petitioner that damages have been awarded against petitioner to the tune of Rs. 10,000/-. However, there is nothing in the impugned order dated 24.06.2022 to show as to how the market value of the land in dispute was determined or calculated nor there is any discussion in the order impugned regarding the manner in which, the amount of damages was calculated by respondent 3 and thus quantified at Rs. 10,000/-. Counsel for petitioner thus submits that the imposition of damages against petitioner in the impugned order is a bald conclusion bereft of any derivative discussion/finding with reference to the facts and circumstances of the case.
15. Attention of the Court was also invited to the provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016, which provides the manner in which damages shall be calculated. On basis thereof, it is urged by the learned counsel for petitioner that damages have been awarded against petitioner in complete ignorance of aforementioned rules. Learned counsel for petitioner thus submits that the amount of damages awarded against petitioner by respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda is not only illegal, unjust, arbitrary but also illusionary.
16. According to the learned counsel for petitioner, the aforesaid illegalities occurring in the order dated 24.06.2022 passed by respondent 3 were specifically raised in the grounds of appeal filed by petitioner before the Appellate Authority and were also pressed before the Appellate Authority. However, the Appellate Authority dismissed the appeal filed by petitioner without considering the same. As such, the Appellate Authority has simply dismissed the appeal filed by petitioner by passing an order of affirmance. He, therefore, contends that the order passed by the Appellate Authority is therefore, not only illegal, unjust but also arbitrary. The Appellate Authority has failed to exercise the jurisdiction vested in it, in accordance with law.
17. On the cumulative strength of above, it is thus urged by the learned counsel for petitioner that orders impugned in present writ petition cannot be sustained and are therefore, liable to be quashed and the matter be remanded to respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda for decision afresh, after undertaking measurement and demarcation exercise of Survey Plot No. 596. In case, petitioner is found in illegal possession and occupation over aforesaid plot, only then, proceedings under Section 67 of U.P. Revenue Code, 2006 be maintained against petitioner.
18. With reference to Survey Plot No. 599-Ga, it is contended that proceedings under Section 67 of U.P. Revenue Code, 2006 can be maintained against petitioner in respect of aforementioned plot provided first the various sub plots to Plot No. 599-Ga are partitioned and the map is amended accordingly. It is only thereafter that Survey Plot No. 599-Ga can be specified on the spot and measurement and demarcation exercise in respect of the same can be undertaken. However, if upon undertaking the said exercise, the petitioner is found to be in illegal possession and occupation over the same then proceedings under Section 67 of U.P. Revenue Code, 2006 can be maintained.
19. Per contra, Mr. Abhishek Shukla, the learned Additional Chief Standing Counsel for State respondents and the learned counsel representing gaon sabha have vehemently opposed the present writ petition. They submit that orders impugned in present writ petition are perfectly just and legal and therefore, not liable to be interfered with. Admittedly, the land in dispute belongs to gaon sabha inasmuch as, no evidence was led by petitioner to rebut the revenue entry occurring in the revenue records regarding the land in dispute nor even prima-facie, the petitioner could establish his right, title and interest over the land in dispute. It is then submitted by the learned additional chief standing counsel that both the authorities below have concurrently held that petitioner is in illegal possession and occupation over gaon sabha land by raising pakka house and by practising agriculture. The said finding recorded by the authorities below could not be dislodged by the learned counsel for petitioner as being illegal, perverse or erroneous. Present writ petition is concluded by findings of fact. As such, no interference is warranted by this Court in present writ petition. However, they could not dislodge the factual and legal submissions urged by the learned counsel for petitioner regarding the non identification of Survey Plot No. 599-Ga without partition of Minzumla Survey Plot No. 599 and the independent plot pictorial representation of the same in the map, illegal imposition of damages against the petitioner as well as the quantum of damages awarded against petitioner.
20. Having heard the learned counsel for petitioner, the learned Additional Chief Standing Counsel for state respondents, the learned counsel representing respondent 4, Gaon Sabha and upon perusal of record this Court finds that while in the Khatauni Khata No. 545 of the khatauni pertaining to 1427-1432 F, the land in dispute is recorded as Naveen Parti but in Khata No. 546 pertaining to khatauni of 1427-1432 F, the land in dispute is recorded as Banjar. Thus, the land in dispute is not recorded in the name of petitioner. Moreover, petitioner could not establish his right, title and interest over the land in dispute. However, irrespective of above, the Court finds that petitioner had taken specific plea that since the tenure of the petitioner is sandwiched in between the 2 plots forming the land in dispute i.e. Survey Plot No. 597 and 599-Ga and he is not in illegal possession and occupation over anyone of them, therefore, measurement/demarcation exercise ought to have been undertaken to establish the same. However, irrespective of the geographical situation of the land in dispute and in spite of the fact that specific plea was raised by petitioner in support of the fact that petitioner is not in illegal possession or occupation over the gaon sabha land but he is in possion over his tenure, no order was passed by respondent 3 directing measurement and demarcation of the land in dispute. Furthermore, this Court finds that Survey Plot No. 599-Ga is a minzumla plot comprising of various sub plots. No finding has been returned by respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda that Survey Plot No. 599 has been partitioned and the map has also been amended and gives complete pictorial representation of the various sub plots of the Plot No. 599. In view of above, it cannot be definitely concluded that petitioner is in illegal possession and occupation of gaon sabha land as Suvey Plot No. 599-Ga is not identifiable on the spot. The Court further finds that damages have been awarded against petitioner in complete derogation of the mandatory provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016. Aforementioned illegalities have clearly been ignored by the Appellate Authority inasmuch as, no finding has been returned by the Appellate Authority on any of the aforementioned issues. As such, the order of the Appellate Authority is not only illegal, unjust but also arbitrary. The Appellate Authority has failed to exercise the jurisdiction vested in it and has dismissed the appeal filed by petitioner by simply passing an order of affirmance. The Appellate Authority has thus not exercised it's jurisdiction diligently but in a casual and caviliar fashion.
21. In view of the discussion made herein above, the present writ petition succeeds and is liable to be allowed.
22. It is, accordingly, allowed.
23. The impugned order dated 24.06.2022 passed by respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda in Case No. 01426 of 2020 (Gaon Sabha Vs. Deveedeen), under Section 67 of U.P. Revenue Code, 2006 (Annexure-1 at page 22 of the paper book) as well as the order dated 28.11.2023 passed by respondent 2, Additional District Magistrate (Judicial), District-Banda in Appeal No. 604 of 2022 (Deveedeen Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 at page 19 of the paper book) are hereby quashed.
24. The matter shall stand remanded to respondent 3, Assistant Collector, First Class/Tehsildar, Tehsil-Nairaini, District-Banda, who shall proceed to decide the same in the light of the observations made hereinabove.
25. However, in the facts and circumstances of the case, the cost is made easy.
Order Date :- 19.03.2024 Vinay