Allahabad High Court
Manish Sharma 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 : - 16.02.2024 Delivered on :- 19.03.2024 Court No. - 83 Case :- WRIT - C No. - 1567 of 2024 Petitioner :- Manish Sharma Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Nipun Singh,Sumit Suri Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani Hon'ble Rajeev Misra,J.
1. Heard Mr. Nipun Singh, the learned counsel for petitioner, Mr. Abhishek Shukla, the learned Additional Chief Standing Counsel for respondents 1 to 3 and Mr. Sachidanand Tiwari, Advocate, holding brief of Mr. Kaushal Kishore Mani, the learned counsel representing respondent 4, Gaon Sabha.
2. Perused the record.
3. Challenge in this writ petition is to the order dated 04.08.2022 passed by respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli in Case No. 01725 of 2020 (Gaon Sabha Bamnauli Vs. Manish Sharma), under Section 67 of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) as well as the order dated 22.12.2023 passed by respondent 2, District Magistrate/Collector, District-Shamli in Appeal No. 857 of 2023 (Manish Sharma Vs. Gram Sabha Bamnauli), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition), whereby aforementioned appeal filed by petitioner against order dated 04.08.2022 has been dismissed.
4. At the very outset, the learned standing counsel for state respondents and the learned counsel representing respondent 4, Gaon Sabha submit that present writ petition be decided finally on the basis of record without formally calling for a counter affidavit. Learned counsel for petitioner has no objection to the same. In view of the consent of the counsel for the parties and as provided under the Rules of Court, this writ petition is being disposed of finally at the admission stage without formally calling for a counter affidavit.
5. Record shows that the dispute relates to Survey Plot No. 221, area 41.80 sq. mtrs, situate in Village-Bamnauli, Tehsil-Kairana, District-Shamli. In the revenue records, the land in dispute is recorded as road
6. The Halka Lekhpal submitted a report (R.C. Form-19) dated 23.10.2020 alleging therein that petitioner has encroached upon public road by raising a house over part of the same. The said illegal occupation is continuing since 1428F and therefore, petitioner has caused damage to the Gaon Sabha land to the tune of Rs. 62,700/-.
7. After submission of aforementioned report, proceedings under Section 67 of U.P. Revenue Code, 2006 came to be registered against petitioner in the court of respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli. Accordingly, Case No. 01725 of 2020 (Gaon Sabha Bamnauli Vs. Manish Sharma), under Section 67 of U.P. Revenue Code, 2006 came to be registered against petitioner, before respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli. A show cause notice (RC Form-20) dated 08.12.2020 in terms of Section 67(2) of U.P. Revenue Code, 2006 was issued to the petitioner by respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli, asking him to show cause as to why an order of eviction be not passed against petitioner and further why damages be not awarded against petitioner for illegally occupying the land of Gaon Sabha and thereby causing damage to the same.
8. In response to the aforesaid show cause notice, petitioner duly appeared in aforementioned case and filed his objections dated 29.01.2020 disputing the correctness of the report submitted by the Halka Lekhpal as well as the contends of the notice dated 08.12.2020. According to the petitioner, constructions have been raised by him on Survey Plot No. 223, area 1.6950 hectares, which is the tenure of the petitioner. As such, no encroachment has been made by petitioner over the land in dispute. It was thus contended that the report of Halka Lekhpal and the notice issued under Section 67(2) (R.C. Form-20) are factually incorrect and therefore, the proceedings itself are liable to be dropped.
9. In view of above, the issue as to whether, petitioner is in illegal possession and occupation over Gaon Sabha land became a contentious issue. Accordingly, the parties went to trial.
10. The Halka Lekhpal, who had submitted the report dated 23.10.2020 and which report formed the basis of the proceedings under Section 67 of U.P. Revenue Code, 2006 against petitioner duly appeared before respondent 3 and proved the report so submitted by him. In spite of lengthy cross examination, nothing adverse could be culled out from the Halka Lekhpal in his examination in chief, which may be in favour of petitioner. The plea raised on behalf of petitioner that since original suit is pending before Civil Court, therefore, proceedings under Section 67 of U.P. Revenue Code, 2006 cannot be maintained, was also negated by respondent 3 on the ground that there is no such evidence on record on the basis of which, it can be conclusively concluded that the original suit filed by petitioner pertains to the land in dispute. Respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli on the basis of pleadings of the parties, the evidence adduced and the material on record came to the conclusion that illegal possession and occupation of petitioner over Survey Plot No. 221, area 0.0042 hectares i.e. 41.80 sq. mtrs. is established as he has raised part of his house over part of the same. In the light of above, respondent 3 came to the conclusion that since petitioner is in illegal possession and occupation over the Gaon Sabha land, therefore, he is liable to be evicted from the same. Since on account of illegal possession and occupation of Gaon Sabha land, petitioner has caused damage to the same, respondent 3 also concluded that damages are also liable to be awarded against petitioner. Consequently, respondent 3 passed an order dated 04.08.2022 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. 2,268/-. Furthermore, execution cost was also imposed, which was quantified at Rs. 3,000/-.
11. Against order dated 04.08.2022, petitioner preferred an appeal before the appellate authority i.e. respondent 2, District Magistrate/Collector, District-Shamli. The same was registered as Appeal No. 857 of 2023 (Manish Sharma Vs. Gram Sabha Bamnauli), under Section 67(5) of U.P. Revenue Code, 2006. A number of grounds were raised in the memo of appeal and also pressed before the appellate authority. However, none of the grounds so raised and pressed before the appellate authority found favour with the appellate authority. Consequently, the appellate authority i.e. respondent 2, District Magistrate/Collector, District-Shamli dismissed the appeal filed by petitioner by passing an order of affirmance dated 22.12.2023.
12. Thus feeling aggrieved by the orders dated 04.08.2022 and 22.12.2023 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. Mr. Nipun Singh, the learned counsel for petitioner in challenge to the order impugned, contends that the same are not only illegal but also in-excess of jurisdiction. Consequently, the same are liable to be quashed by this Court. It is then contended that the petitioner is not in illegal possession and occupation over the land in dispute i.e. Survey Plot No. 221 inasmuch as, petitioner has constructed his house over his tenure i.e. Survey Plot No. 223, area 1.6950 hectares. Since petitioner has sufficient land with him, therefore, there was no occasion for the petitioner to encroach upon the Gaon Sabha land i.e. the land in dispute (public road). Respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli without considering the aforesaid aspect of the matter has negated the objections filed by the petitioner in opposition to the notice (R.C. Form-20) issued against petitioner. He, therefore, contends that respondent 3 has consequently erred in passing the order impugned dated 04.08.2022.
14. It is then contended by the learned counsel for petitioner that during course of hearing before respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli, it was brought to the notice of respondent 3 that original suit has already been instituted by petitioner for protection of his rights before the trial court. Respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli without considering the import of the aforesaid fact as to whether in view of above, the proceedings under Section 67 of U.P. Revenue Code, 2006 should continue or not has straight away passed the order impugned dated 04.08.2022. On the cumulative strength of above, he contends that order impugned dated 04.08.2022 passed by respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli is unsustainable in law and fact and therefore, liable to be set aside by this Court.
15. According to the learned counsel for petitioner, even though, the aforesaid grounds were specifically raised in the grounds of appeal preferred against the order dated 04.08.2022 passed by respondent 3 and also pressed before the appellate authority but the appellate authority while passing the order impugned dated 22.12.2023 has not adverted to the same and has simply dismissed the appeal filed by petitioner by passing an order of affirmance. He, therefore, contends that the appellate authority has failed to exercise the jurisdiction vested in him diligently but in a casual and caviliar fashion and therefore, the order passed by the appellate authority is not only illegal but also unjust and arbitrary. Consequently, the same is also liable to be quashed by this Court.
16. Learned counsel for petitioner has further contended that In view of the specific plea raised before respondent 3 that petitioner is in possession and occupation over this own tenure i.e. Survey Plot No. 223, the proper course for respondent 3 was to first undertake measurement and demarcation exercise of the land in dispute and in case, the petitioner was found to be in illegal possession over the same, the proceedings under Section 67 of U.P. Revenue Code, 2006 could be maintained. The failure on the part of respondent 3 in not undertaking the aforesaid exercise renders the order impugned dated 04.08.2022 illegal.
17. On the cumulative strength of above, he, therefore, submits that the orders impugned passed by respondents 3 and 2 cannot be sustained in law and fact. Consequently, the same are liable to be quashed and the matter be remanded before respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli for adjudication afresh, after undertaking the measurement and demarcation exercise of the land in dispute i.e. Survey Plot No. 221.
18. Per contra, the learned standing counsel representing state respondents and the learned counsel representing respondent 4, Gaon Sabha have opposed the present writ petition. They submit that in view of the findings recorded by both the authorities below that petitioner has failed to establish his right, title and interest over the land in dispute and further petitioner is in illegal possession and occupation of the Gaon Sabha land, no illegality has been committed by them in passing the orders impugned. According to the learned standing counsel, the land in dispute is recorded as a public road. As such, the land in dispute is a public utility land and therefore, covered under Section 77 of U.P. Revenue Code, 2006. Since the land in dispute is a public utility land, no right, title or interest in the same can accrue in favour of petitioner even on the basis of long and uninterrupted possession. It is then contended by the learned standing counsel that on behalf of petitioner, a plea was raised on behalf of petitioner before respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli that original suit filed by petitioner is already pending before the Civil Court and therefore, the proceedings under Section 67 of U.P. Revenue Code, 2006 be dropped. However, it could not be established by the petitioner himself that the suit filed by petitioner pertains to the protection of rights of petitioner over the land in dispute nor any such document was filed before court below to establish the same. The plaint of the original suit filed by petitioner, which was relied upon by the petitioner before court below has not been brought on record of the present writ petition. As such, it is not discernible from the record as to whether the original suit filed by petitioner pertained to the land in dispute. Consequently, the submission of the learned counsel for petitioner that the proceedings under Section 67 of U.P. Revenue Code, 2006 could not be maintained in view of the pendency of the original suit is simply illusionary. Even otherwise, in view of the statutory prohibition contains in Section 206 of U.P. Revenue Code, 2006, a relief, which can be granted under the U.P. Revenue Code, 2006 cannot be granted by the Civil Court. As such, no suit would lie before the court of competent civil jurisdiction regarding the land in dispute as the same shall be barred by law. On this premise also, the learned standing counsel submits that no benefit can be derived by the petitioner from the fact that an original suit has been filed by petitioner. On the cumulative strength of above, the learned standing counsel submits that since there is no error of law and fact apparent in the orders impugned, therefore, the present writ petition is therefore liable to be dismissed.
19. Having heard, the learned counsel for petitioner, the learned standing counsel, the learned counsel representing respondent 4, Gaon Sabha and upon perusal of record this Court finds that the dispute relates to Survey Plot No. 221, area 41.80 sq. mtrs. The Halka Lekhpal had submitted his report that the petitioner has encroached upon part of aforesaid plot by constructing his house. He has also appeared before respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli and proved the report. However, in spite of lengthy cross examination, nothing adverse could be culled out from him. In the revenue records, the land in dispute is recorded as public road and therefore, the same is a public utility land. Consequently, the same is covered under Section 77 of U.P. Revenue Code, 2006. Since the land in dispute is a public utility land, therefore, no right, title and interest in the same, can accrue in favour of petitioner, even on the basis of long and uninterrupted possession. In view of the nature of the land in dispute, no benefit can be granted to the petitioner even under Section 67-A of U.P. Revenue Code, 2006. So far as the plea raised on behalf of petitioner regarding pendency of original suit before Civil Court, is concerned, the Court finds that the said plea was neither substantiated by material particulars nor evidenced by any document. The plaint of the said original suit has not been appended along with writ petition to establish the basis of the suit and the relief claimed by the same. The ground, which has been urged with vehemence, in support of this writ petition by the learned counsel for petitioner is that since an Original Suit filed by petitioner is already pending, therefore, the proceedings under Section 67 of U.P. Revenue Code, 2006 cannot be maintained.
20. However, the court finds that the petitioner is in his objection dated 29.01.2021 filed in reference to the show cause notice dated 08.12.2020 has categorically pleaded in paragraph 5 that the land in dispute i.e. Survey Plot No. 221 is contiguous to Survey Plot No. 223 i.e. the tenure of the petitioner. As such, petitioner is in possession over his tenure and no encroachment has been made by him. The petitioner has constructed his house in the tenure belonging to him.
21. From the aforesaid, it is apparent that petitioner had denied his possession over the land in dispute. However, in spite of the fact that specific objection was received by petitioner regarding the alleged possession and occupation over Gaon Sabha land, it was incumbent on respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli to undertake measurement and demarcation exercise of the land in dispute. This admittedly has not been done.
22. Apart from above, the Court finds that no finding has been returned by any of the authorities below that illegal possession and occupation of petitioner was found established in any measurement exercise undertaken by the Halka Lekhapl.
23. As such, the order of eviction and damages has been passed against petitioner without undertaking the necessary measurement and demarcation exercise of the land in dispute, which alone could establish the illegal possession and occupation of petitioner ovr the land in dispute.
24. In view of the discussion made herein above, the present writ petition succeeds and is liable to be allowed.
25. It is accordingly allowed.
26. The impugned order dated 04.08.2022 passed by respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli in Case No. 01725 of 2020 (Gaon Sabha Bamnauli Vs. Manish Sharma), under Section 67 of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) as well as the order dated 22.12.2023 passed by respondent 2, District Magistrate/Collector, District-Shamli in Appeal No. 857 of 2023 (Manish Sharma Vs. Gram Sabha Bamnauli), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) are hereby quashed.
27. Matter shall stand remanded to respondent 3, Tehsildar, Tehsil-Kairana, District-Shamli, who shall decide the same afresh in the light of observations made in this judgment.
28. However, in the facts and circumstances of the case, the cost is made easy.
Order Date :- 19.03.2024 Vinay