Allahabad High Court
Shambhu Dayal vs State Of U.P. And 4 Others on 12 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:23503 Court No. - 5 Case :- WRIT - C No. - 43618 of 2023 Petitioner :- Shambhu Dayal Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Saurabh Shahi Counsel for Respondent :- C.S.C.,Hari Narayan Singh Hon'ble Rajeev Misra,J.
1. Heard, Mr. Saurabh Shahi, the learned counsel for petitioner, the learned standing counsel for respondents 1 to 4 and Mr. H.N. Singh, the learned counsel representing respondent 5, Gaon Sabha.
2. Perused the record.
3. At the very outset, the learned standing counsel for state respondents and the learned counsel representing Gaon Sabha submit that they do not wish to file counter affidavit. As such, the present writ petition be decided finally without formally calling a counter affidavit and on the basis of the record. Learned counsel for petitioner has no objection to above. Consequently, with the consent of the counsel for the parties and the Rules of this Court, present writ petition is being decided finally at the admission stage without formally calling for a counter affidavit.
4. Challenge in this writ petition is to the order dated 25.11.2022 passed by respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar in Case No. 4779 of 2022 (Gaon Sabha Katari Vs. Shambhu Dayal), under Section 67 of U.P. Revenue Code, 2006 (Annexure-7 to the writ petition) and the order dated 25.09.2023 passed by respondent 2, Additional District Magistrate (Judicial), District-Kanpur Nagar in Appeal No. 964 of 2023 (Shambhu Dayal Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-14 to the writ petition) whereby aforementioned appeal filed by petitioner against order dated 25.11.2022 has been dismissed.
5. Record shows that dispute relates to Survey Plot No. 876 area 0.2476 hectares situate in Village-Katari, Pargana & Tehsil-Ghatampur, District-Kanpur Nagar. The Halka Lekhpal submitted a report dated 26.09.2022 (R.C. Form-19) alleging therein that petitioner is in illegal possession and occupation over an area of 0.2066 hectares of the land in dispute by planting eucalyptus trees.
6. Upon receipt of aforementioned report, proceedings under Section 67 of U.P. Revenue Code, 2006 were drawn against petitioner. Accordingly, Case No. 4779 of 2022 (Gaon Sabha Katari Vs. Shambhu Dayal), under Section 67 of U.P. Revenue Code, 2006 came to be registered before respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar.
7. Accordingly, show cause notice (R.C. Form-20) was issued to the petitioner in terms of Section 67(2) of U.P. Revenue Code, 2006 asking the petitioner to show cause why an order of eviction be not passed against him and also damages be not awarded for causing damage to Gaon Sabha land by illegally occupying the same.
8. In response to the aforesaid notice, the petitioner duly appeared before respondent 3. An application dated 28.10.2022 was filed by petitioner seeking time to file objections to the said show cause notice. Subsequently, petitioner filed applications dated 19.11.2022 and 25.11.2022. Along with the aforesaid applications, petitioner annexed certain documents.
9. Ultimately, respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar came to the conclusion that though sufficient opportunity has been granted to the petitioner to file objections yet the petitioner has not filed his objections to the show cause notice. Accordingly, respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar proceeded to decide aforementioned case in the absence of the objections which were to be filed by petitioner.
10. Consequently, upon perusal of record, respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar came to the conclusion that the dispute relates to Survey Plot No. 876 area 0.2476 hectares. Petitioner is in illegal possession and occupation over an area of 0.2066 hectares of land in dispute. From the material on record, the illegal possession and occupation of the petitioner is established over the land in dispute. Since the land in dispute is recorded as Naveen Parti, petitioner has no right, title or interest over the same. Accordingly, respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar came to the conclusion that not only an order of eviction be passed against petitioner but also damages be imposed against the petitioner for causing damage to Gaon Sabha property. Thus respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar passed the order dated 25.11.2022 whereby not only the eviction of petitioner from the land in dispute was directed but also damages were awarded against petitioner to the tune of Rs. 1,75,610/-. Surprisingly enough, respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar by means of the order dated 25.11.2022, did not consign the matter to the record but issued a further direction that recovery citation (R.C. Form 21) be issued against petitioner. Furthermore, the petitioner was required to adduce evidence in respect of the mobile tower installed in the land of the petitioner.
11. Against aforesaid unusual order dated 25.11.2022, petitioner preferred an appeal before the appellate authority i.e. The Collector/District Magistrate, Kanpur Nagar in terms of Section 67(5) of U.P. Revenue Code, 2006. The same was registered as Appeal No. 964 of 2023 (Shambhu Dayal Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006. However, the grounds raised in the memo of appeal and pressed before the appellate authority i.e. respondent 2, Additional District Magistrate (Judicial), District-Kanpur Nagar did not find favour with the appellate authority. Consequently, the appellate authority dismissed the appeal filed by petitioner by passing an order of affirmance but a cryptic order dated 25.09.2023.
12. Thus feeling aggrieved by the above orders dated 25.11.2022 and 25.09.2023 passed by respondents 4 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 orders impugned in present writ petition are manifestly illegal and in-excess of jurisdiction. Consequently, same are liable to be quashed by this Court.
14. Attention of the Court was invited to the order dated 25.11.2022 passed by respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar. With reference to above, he submits that respondent 4 has proceeded to decide the case without even recording the statement of Halka Lekhpal which was mandatorily required to be recorded in view of the law laid down by this Court in Rishipal Singh Vs. State of U.P., 2023 160 R.D. 204.
15. It is next contended that damages have been awarded against petitioner by respondent 4 to the tune of Rs. 1,75,610/-. However, since the Halka Lekhpal who has submitted the report dated 26.09.2022 alleging therein that petitioner is in illegal possession and occupation over Gaon Sabha land and has thereby caused damages to the Gaon Sabha was not examined to prove the report so submitted by him. As such, there was no conclusive evidence on the basis of which, damages could have been awarded against petitioner.
16. Reference was then made to the provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016. For ready reference, Rule 67 is reproduced hereinunder:-
"67. (1) On receipt of the information under rule 66, or on facts otherwise coming to his knowledge, the Assistant Collector may make such inquiry as he deems proper and may obtain further information regarding the following points:-
(a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, plot number, area, boundary, property damaged or misappropriated and market value thereof;
(b) full address along with parentage of the person responsible for such damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or misappropriation and class of soil of the plots involved;
(d) value of the property damaged or misappropriated calculated at the circle rate fixed by the Collector and the amount sought to be recovered as damages.
(2) The Assistant Collector shall thereafter proceed to take action under section 67(2) and for that purpose issue a notice to the person concerned in R.C. Form-20 to show cause as to why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.
(3) If the notice referred to in section 67(2) remains uncomplied with or if the cause shown by the person 39 concerned is found to be insufficient, the Assistant Collector may direct by order that-
(a) such person be evicted by using such force as may be necessary; or
(b) the amount of compensation for damage or wrongful occupation ordered by the Assistant Collector, if not paid in specified time, may be recovered as arrears of land revenue, including the amount of expenses referred to in sub-rule (3).
(4) The amount of damages sought to be recovered and the expenses of execution of the order shall be specified in such notice, which shall be determined in the following manner:-
(a)In the case of damage or misappropriation, the amount of damages shall be assessed at the prevailing market rate.
(b)In the case of unauthorized occupation of any land, the amount of damages shall be the amount equal to the five percent of the market value of the land calculated at the circle rate fixed by the Collector for each year of unauthorized occupation.
(c)The expenses of execution of the order shall be assessed on the basis of one day's pay and allowances payable to the staff deputed.
(5)If the person wrongfully occupying the land has done cultivation therein, he may be allowed to retain possession thereof until he has harvested the crops subject to the payment by him of the amount equal to the five percent of the market value of the land calculated as per the circle rate which shall be credited to the Consolidated Gaon Fund or the Fund of the local authority other than the Gram Panchayat as the case may be. If the person concerned does not make the payment of the aforesaid amount within the period specified in the notice inR.C. 40 Form-20,the possession of the land shall be delivered to the Land Management Committee or the local authority, as the case may be, together with the crop: Provided that where such person again wrongfully occupies the same land or any other land within the jurisdiction of the Gram Panchayat or the local authority as the case may be, he shall be evicted therefrom forthwith and possession of the land vacant or together with the crop thereon shall be delivered to the Land Management Committee or the local authority as the case may be.
(6)The Assistant Collector shall make an endeavour to conclude the proceeding under section 67 ofthe Code within the period of ninetydays from the date of issuance of the show cause noticeand if the proceeding is not concluded within such period the reasons for the same shall be recorded.
(7)Nothing in sub-rule(5) shall debar the Land Management Committee or the local authority as the case may be from prosecuting the person who encroaches upon the same land second time in spite of having been evicted under the Codeor therules,under section 447 of the Indian Penal Code, 1860.
(8)There shall be maintained in the office of each Collector a register inR.C. Form-21showing details of the amount ordered to be realized on account of damages and compensation awarded in proceedings under section 67.
(9)A similar register shall also be maintained by each tahsildar showing realization of damages and compensation awarded insuch proceeding. The entries made in the register maintained at tahsil shall be compared with the register maintained by the Collector to ensure accuracy of the entries made therein.
(10)A progress report showing realization of damages and compensation awarded in proceedings under section 67 shall be sent to Board of Revenue, U.P.,Lucknow by the fifteenth day of April and October every year. The Board after consolidating the report so received from the districts shall send it totheGovernment.
(11)Nothing in rules 66and67 shall debar any person from establishment of his right, title or interest in a court of competent jurisdiction in accordance with the law for the time beinginforce in respect of any matter for which any order has been made under section 67 of the Code."
17. With reference to above, the learned counsel for petitioner submits that from the perusal of impugned order dated 25.11.2022, it is evident that no attempt was made by respondent 4 to calculate the market value of the land in dispute and the amount of damages caused by petitioner with reference to the facts and circumstances of the case. It is thus urged that awarding of damages agaisnt petitioner is a bald conclusion devoid of consideration of the facts and circumstances of the case, the material relied upon and in ignorance of the afrorementioned mandatory provisions. On the above premise, the learned counsel for petitioner submits that the amount of damages awarded against petitioner is not only illegal, unjust, arbitrary, excessive but also illusionary.
18. Learned counsel for petitioner further submits that once respondent 4 passed the order of eviction and damages against petitioner i.e. order dated 25.11.2022, then he had no jurisdiction to continue the proceedings by directing the petitioner to file evidence regarding the mobile tower, which has been installed upon the consent of the petitioner. According to the learned counsel for petitioner, once respondent 4 passed the order dated 25.11.2022 as noted above, then in all propriety, he should have consigned the matter to the record or should not have passed the order by granting last opportunity to the petitioner to file his objection/evidence as noted above.
19. It is lastly submitted by the learned counsel for petitioner that the appeal filed by the petitioner against order dated 25.11.2022 has been dismissed by the appellate authority i.e. respondent 2 on the finding that the same is not maintainable. In the submission of the learned counsel for petitioner, the finding so recorded is not only illegal but also perverse and erroneous. Admittedly, vide order dated 25.11.2022, not only an order of eviction was passed against petitioner but also damages were imposed against him. Consequently, the order dated 25.11.2022 passed by respondent 4 was a final order and therefore, the appeal filed by petitioner was clearly maintainable. He has further referred to the provisions contained in Section 67(5) of U.P. Revenue Code, 2006. For ready reference, Section 67 is reproduced hereinunder:-
"Section 67. Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property (1) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Panchayat or other local authority is damaged or misappropriated, or where any Gram Panchayat or other authority is entitled to take possession of any land under the provisions of this Code and such land is occupied otherwise than in accordance with the said provisions, the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated, or any person is in occupation of any land referred to in that sub-section in contravention of the provisions of this Code, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.
(3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person shall be evicted from the land, and may, for that purpose, use or cause to be used such force as may be necessary, and may direct that the amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2), he shall discharge the notice.
(5) Any person aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may within thirty days from the date of such order, prefer an appeal to the Collector.
(6) Notwithstanding anything contained in any other provision of this Code, and subject to the provisions of this section every order of the Assistant Collector under this section shall, subject to the provisions of sub-section (5) be final.
(7) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
Explanation. - For the purposes of this section, the word land shall include the trees and buildings standing thereon."
20. With reference to above, he submits that an appeal under Section 67(5) of U.P. Revenue Code, 2006 shall lie against an order passed under Section 67(3) or 67(4) of U.P. Revenue Code, 2006. Admittedly, the order dated 25.11.2022 passed by respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar is an order referable to Section 67(3) inasmuch as, not only an order of eviction has been passed against petitioner but also damages have been imposed against petitiner. In view of above, the appellate authority duly erred in law and fact in concluding that the appeal filed by petitioner against order dated 25.11.2022 is not maintainable. As such, the same is also liable to be quashed.
21. Learned Standing Counsel representing respondents 1 and 2 has however, opposed the present writ petition. He submits that it is an undisputed fact that the land in dispute is recorded as Naveen Parti. As such, the land in dispute is Gaon Sabha land. In spite of sufficient opportunity have been granted by respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar, petitioner did not file his detailed objections to the show cause notice. There is nothing on record to show that the land in dispute is not recorded as Gaon Sabha land. In view of above, no illegality has been committed by the answering respondents in directing eviction of the petitioner from the land in dispute and further awarding damages against petitioner. Petitioner has failed to prove before the authorities as well as before this Court regarding his possession over the land which is other than the land in dispute. As such, no interference is warranted by this Court in the present writ petition. However, the learned standing counsel could not dislodge the legal submissions urged by the learned counsel for petitioner in challenge to the orders impugned in present writ petition.
22. Having heard the learned counsel for petitioner, the learned standing counsel representing respondents 1 and 2 and upon perusal of record, this Court finds that the dispute relates to Survey Plot No. 876 area 0.2476 hectares. The Court further finds that the land in dispute is recorded as Naveen Parti. Consequently, petitioner cannot have any right or title over the land in dispute. Apart from above, record further shows that show cause notice (R.C. Form-20) was issued to the petitioner asking him to show cause why an order of eviction be not passed against petitioner and further damages be not imposed for causing damage to Gaon Sabha property. In response to the said show cause notice, petitioner appeared before respondent 4 and file applications dated 28.10.2022, 19.11.2022 and 25.11.2022 seeking time to file his objections to the show cause notice. However, no objections were filed by petitioner even though sufficient opportunity was granted to the petitioner by respondent 4. It is true that certain documents were filed by petitioner along with aforesaid applications but in the absence of objections having been filed, the said documents could not be considered as there was nothing before court below disclosing the defence of the petitioner.
23. However, the Court finds that respondent 4 proceeded to decide the matter without examing the Halka Lekhpal who had submitted the report dated 26.09.2022 (R.C. Form-19). Admittedly, it is this report which formed the basis of the proceedings initiated under Section 67 of U.P. Revenue Code, 2006 against petitioner. Once the Halka Lekhpal himself did not appear before respondent 4 to prove the said report, there was no conclusive material before respondent 4 to conclude illegal possession and occupation of petitioner over part of the land in dispute and further award damages against the petitioner for causing damage to Gaon Sabha property. Furthermore, the statement of Halka Lekhpal was mandatorily required to be recorded in view of the law laid down by this Court in Rishipal Singh (Supra). The damages awarded against the petitioner are in ignorance of the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016 referred to above. There is nothing in the impugned order dated 25.11.2022 to show as to on what basis, the market value of the land in dispute was arrived at nor there is any discussion showing the conclusion drawn by respondent 4 regarding the quantum of damages alleged to have been caused by petitioner to Gaon Sabha property. In the absence of any disclosure of the material relied upon and its evaluation leads to the only conclusion that respondent 4 has simply recorded a bald conclusion regarding damages to be awarded against the petitioner. The order dated 25.11.2022 was a final order inasmuch as, the issue with regard to the eviction of petitioner and the amount of damages to be awarded against the petitioner was finally decided. As such, the conclusion drawn by the appellate authority that the appeal filed by petitioner is not maintainable, is not only illegal, perverse but also erroneous. The appellate authority while dismissing the appeal filed by petitioner has completely ignored the provisions contained in Section 67(5) and Section 67(6) of U.P. Revenue Code 2006. In this view of the matter also, the appeal filed by petitioner against order dated 25.11.2022 was clearly maintainable. The appellate authority has thus erred in law and fact in dismissing the appeal filed by petitioner on the ground of maintainability.
24. In view of the discussion made above, present writ petition succeeds and is liable to be allowed.
25. It is accordingly allowed.
26. The impugned order dated 25.11.2022 passed by respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar in Case No. 4779 of 2022 (Gaon Sabha Katari Vs. Shambhu Dayal), under Section 67 of U.P. Revenue Code, 2006 (Annexure-7 to the writ petition) and the order dated 25.09.2023 passed by respondent 2, Additional District Magistrate (Judicial), District-Kanpur Nagar in Appeal No. 964 of 2023 (Shambhu Dayal Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-14 to the writ petition) are hereby quashed.
27. Matter shall stand remanded to respondent 4, Tehsildar (Judicial), Tehsil-Ghatampur, District-Kanpur Nagar for decision afresh in the light of observations made hereinabove.
28. The petitioner shall file his objections within a period of 3 weeks from today failing which his right to file objections to the show cause notice shall stand forefieted and respondent 4 shall be free to decide the matter in the absence of the objections of the petitioner.
29. In the facts and circumstances of the case, the cost is made easy.
Order Date :- 12.2.2024 Vinay