Allahabad High Court
Kallu @ Kallu Prajapati And Another vs State Of U.P. And 3 Others on 8 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:22855 Court No. - 5 Case :- WRIT - C No. - 41173 of 2023 Petitioner :- Kallu @ Kallu Prajapati And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shri Chandra Counsel for Respondent :- C.S.C.,Achal Singh Hon'ble Rajeev Misra,J.
Heard Mr. Shri Chandra, the learned counsel for petitioners, the learned Standing Counsel representing respondents 1, 2 and 3 and Mr. Ambuj Srivastava, Advocate holding brief of Mr. Achal Singh, the learned counsel representing respondent 4-Bhumi Prabandhak Samiti.
Perused the record.
Challenge in this writ petition is to the order dated 07.02.2023, passed by respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot in Case No.2899 of 2022 (Report Lekhpal Vs. Kallu), under Section 67 of U.P. Revenue Code, 2006 (Annexure-'4' to the writ petition) and the order dated 31.05.2023, passed by respondent no.2-Additional District Magistrate (Judicial) Chitrakoot, district Chitrakoot in Appeal No.102 of 2023 (Kallu Prajapati Vs. Bhumi Prabandhak Samiti), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-'6' to the writ petition), whereby aforesaid appeal filed by the petitioners against the order dated 07.02.2023 passed by the Tehsildar concerned has been dismissed.
Record shows that the dispute relates to survey plot no.1557 area 1.358 hectare, which is recorded as Navin Parti i.e. category 5(1) in the revenue records. Halka Lekhpal submitted a report (R.C. Form 19) dated 17.09.2022 alleging therein that petitioners are in illegal possession and occupation upon some portion (0018 hectare) of the Gaon Sabha land. Consequently, after receipt of aforementioned report, proceedings under Section 67 of U.P. Revenue Code, 2006 were initiated against the petitioners. Resultantly, Case No. 2899 of 2022 (Report Lekhpal Vs. Kallu) came to be registered in the court of respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot. Notice under Section 67(2) of U.P. Revenue Code, 2006 (R.C. Form 20) was issued to the petitioners. However, sufficient opportunity having been granted to the petitioners, an objection dated 17.12.2022 was filed by the petitioners disputing the correctness of the report submitted by the Halka Lekhpal as well as the illegality of the proceedings under Section 67 of U.P. Revenue Code, 2006. Ultimately, the respondent no.3 vide order dated 07.02.2023 allowed Case No.2899 of 2022 (Report Lekhpal Vs. Kallu), under Section 67 of U.P. Revenue Code, 2006 by recording findings therein that no one is present to argue the case on behalf of the opposite side i.e. petitioners and the objection filed by the opposite side is baseless thus there is nothing on record to disbelieve the report of Halka Lekhpal. Therefore, prima facie, there is illegal possession and occupation of the petitioners over part of Survey Plot No.1557 area 1.358 hectare. Accordingly, an order of eviction was passed against the petitioners along with damages quantified to the tune of Rs.39,600/-.
Feeling aggrieved by above order dated 07.02.2023, petitioners filed an appeal before the appellate authority i.e. District Magistrate/Collector, Chitrakoot, which was registered as Appeal No.102 of 2023 (Kallu Prajapati Vs. Bhumi Prabandhak Samiti), under Section 67(5) of U.P. Revenue Code, 2006. In the memo of appeal, number of grounds were raised and submissions were also urged before the appellate authority on behalf of petitioners pointing out the illegalities in the order dated 07.02.2023 passed by respondent no.3. One of the grounds raised in the memo of appeal was that the house of the petitioners is constructed over plot no.1556 which is Abadi land and belongs to the petitioners and the land in dispute is survey plot no.1557. Both the plots are contiguous plots. However, none of the grounds raised in the memo of appeal as well as the submissions urged on behalf of petitioners before the appellate authority found favour with the appellate authority. Consequently, the appellate authority i.e. Additional District Magistrate (Judicial) Chitrakoot, district Chitrakoot came to the conclusion that the view taken by the respondent no.3 is correct and there is no illegality in the order passed by him. Accordingly, the appellate authority passed an order of affirmance dated 31.05.2023 dismissing the appeal filed by the petitioners against the order dated 07.02.2023.
Thus, feeling aggrieved by the above orders dated 07.02.2023 and 31.05.2023, petitioners have now approached this Court by means of present writ petition.
Learned counsel for petitioners contends that from the perusal of order dated 07.02.2023 passed by respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot it is explicitly clear that the statement of Halka Lekhpal was not recorded before passing the final order dated 07.02.2023, which itself is illegal and in excess of jurisdiction. Admittedly, the proceedings under Section 67 of U.P. Revenue Code, 2006 were initiated against the petitioners on the basis of report of Halka Lekhpal. Once the Halka Lekhpal himself did not appear before respondent no.3 to prove his report therefore, there was no conclusive material available before the respondent no.3 to conclude that the petitioners are in illegal possession and occupation over the Gaon Sabha land. It is then contended by the learned counsel for petitioners that damages have been awarded against the petitioners without considering the mandatory provisions of Rule 67 (4) of U.P. Revenue Code Rules, 2016. As such, amount of damages awarded by respondent no.3 against the petitioners is not only harsh, excessive, irrational and arbitrary but also illusionary. There is nothing in the order dated 07.02.2023 to indicate the material on the basis of which the figure of Rs.39,600/- was arrived at towards damages caused by the petitioners to Gaon Sabha property. On the above conspectus, it is then contended that the order of respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot is not only illegal and arbitrary but also in excess of jurisdiction. He further submits that though aforesaid grounds were specifically raised and pressed before the appellate authority but the appellate authority has failed to consider the same and dismissed the appeal filed by the petitioners vide order dated 31.05.2023 by simply passing an order of affirmance. On the above premise, he therefore submits that the above orders impugned in present writ petition cannot be sustained and are therefore liable to be quashed.
Per contra, the learned Standing Counsel representing the State and the learned counsel for respondent no.4 have opposed the present writ petition. They submit that the petitioners were found to be in illegal possession and occupation over the Gaon Sabha land i.e. survey plot no.1557 which is recorded as a Navin Parti i.e. category 5(1) in the revenue records. Nothing has been brought on record in the present writ petition to establish the right, title and interest of the petitioners over the land in dispute. As such, no right can accrue to the petitioners over the said land even on the ground of long and uninterrupted possession. As such, no illegality has been committed by both the authorities below in directing eviction of the petitioners from the land in dispute. However, the learned Standing Counsel could not dislodge the submissions urged by the learned counsel for petitioners regarding the damages awarded against petitioners with reference to the record at this stage.
Having heard the learned counsel for petitioners, 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 petitioners 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.1557 area 1.358 hectare. However, respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot has proceeded to pass final order dated 07.02.2023 against the petitioners without even recording the statement of Halka Lekhpal on whose report proceedings under Section 67 of U.P. Revenue Code, 2006 were initiated against the petitioners. In the absence of above, there was no conclusive material before the respondent no.3 to conclude that petitioners are in illegal possession and occupation over the Gaon Sabha land. Apart from above, this Court further finds that damages have been awarded against the petitioners without taking into consideration the mandatory provision of Rule 67(4) of U.P. Revenue Code Rules, 2016. No attempt has been made by respondent no.3 to calculate the amount of damages on prevailing market value. The conclusion drawn by the respondent no.3 in respect of damages is vague inasmuch as the order impugned is derived of basic discussion regarding the same. As such, the amount of damages awarded against the petitioners by the respondent no.3 is not only illegal, harsh, arbitrary and illusionary but also in excess of jurisdiction. The appellate authority has not adverted to aforesaid aspect of the matter and has thus failed to exercise the jurisdiction vested in him diligently and in accordance with law. As such, the order of the appellate authority is not only illegal but also arbitrary in the facts and circumstances of the case.
In view of above, the present writ petition succeeds and is liable to be allowed.
It is, accordingly, allowed.
The impugned orders dated 07.02.2023, passed by respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot in Case No.2899 of 2022 (Report Lekhpal Vs. Kallu), Annexure-'4' to the writ petition and the order dated 31.05.2023, passed by respondent no.2-Additional District Magistrate (Judicial) Chitrakoot, district Chitrakoot in Appeal No.102 of 2023 (Kallu Prajapati Vs. Bhumi Prabandhak Samiti), Annexure-'6' to the writ petition, are hereby quashed. Matter is remanded to the respondent no.3-Assistant Collector 1st Class/Tehsildar, Tehsil Manikpur now Mau, district Chitrakoot, who shall proceed to decide the same afresh after giving due notice and opportunity of hearing to the petitioners and after recording the statement of Halka Lekhpal 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 :- 8.2.2024.
Rks.