Allahabad High Court
Imtiyaz Ahmad And Another vs State Of U.P. And 3 Others on 6 March, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:40876 Reserved on: 06.02.2024 Delivered on:19.03.2024 Court No. - 83 Case :- WRIT - C No. - 43492 of 2023 Petitioner :- Imtiyaz Ahmad And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Sahai Counsel for Respondent :- C.S.C.,Rameshwar Prasad Shukla Hon'ble Rajeev Misra,J.
1. Heard Mr. Saumitra, Advocate, holding brief of Mr. Rahul Sahai, the learned counsel for petitioners, the learned Standing Counsel for respondents- 1,2,3 and Mr. Vijay Bhan Singh, Advocate, holding brief of Mr. R.P. Shukla, the learned counsel representing respondent-4.
2. Perused the record.
3. Challenge in this writ petition is to the order dated 20.6.2023, passed by respondent-3, Assistant Collector/Tehsildar, Ballia, in Case No.266 of 2023 (Gram Sabha Vs. Imtiyaz and Others) under Section 67 of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) as well as the order dated 13.10.2023, passed by respondent-2 District Magistrate/Collector, Ballia in Appeal No. 1102 of 2023 (Imtiyaz Ahmad and Others Vs. Gram Sabha Turtipar and Others) under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition), whereby aforesaid appeal filed by petitioners against the order dated 20.6.2023 has been dismissed.
4. At the very outset, learned Standing Counsel for state respondents-1,2,3 and Mr. Vijay Bhan Singh Advocate, holding brief of Mr. R.P. Shukla, the learned counsel representing respondent-4, Gaon Sabha submit that present writ petition may be disposed of finally on the basis of record without formally calling a counter affidavit. Learned counsel for petitioners has no objection to the same. Accordingly, this writ petition is being disposed of finally at the admission stage, with the consent of the learned counsel for parties and as provided under the Rules of Court.
5. Record shows that dispute relates to Survey Plot No. 609-Ga area 0.251 hectare situate in village Mauja Turtipara, Pargana Sikandarpur Garvi, District Ballia. The land in dispute is said to be a public utility land recorded in the name of Gaon Sabha. Therefore, Halka Lekhpal submitted its report dated 2.2.2023 (R.C. Form- 19) alleging therein that petitioners are in illegal possession and occupation over Gaon Sabha land, therefore, they have caused damage to Gaon Sabha Land. After submission of aforesaid report, proceedings under Section 67 of U.P. Revenue Code 2006 came to be drawn against the petitioners in the Court of respondent-3- Assistant Collector/Tehsildar, Ballia. The same came to be registered as Case No. 266 of 2023 (Gram Sabha Vs. Imtiyaz and Others) under Section 67 of U.P. Revenue Code, 2006 .
6. A show cause notice (R.C. Form- 20) was issued to the petitioners in terms of Section 67(2) of U.P. Revenue Code, 2006 asking them to show cause why an order of eviction be not passed against them for their eviction from the land in dispute and further why damages be also not imposed against petitioners for causing damage to Gaon Sabha Land. In response to the said show cause notice, the petitioners filed their detailed objection dated 27.5.2023 before respondent-3, Assistant Collector/Tehsildar, Ballia, disputing the contents of the notice as well as the report of Lekhpal.
7. Primarily the contention raised by petitioners before respondent-3 Assistant Collector/Tehsildar, Ballia was to the effect that since Survey Plot No. 609 is a minzumla plot, therefore, it comprises various sub plots. As such, in the absence of any partition of the same on the spot and its consequential independent representation in the map, no proceedings under section 67 of U.P. Revenue Code, can be initiated.
8. It was further contended on behalf of petitioners that since proceedings regarding correction of map are already pending, therefore, in view of above, proceedings under Section 67 of U.P. Revenue Code, 2006 cannot continue simultaneously.
9. However, irrespective of aforesaid objections, respondent-3 Assistant Collector/Tehsildar, Ballia, proceeded with the merits of the matter. He, recorded a finding that the map pertaining to Survey Plot No. 611 which was purchased by petitioners by means of registered sale deed has been measured and it is found that there is no error in the map. On the strength of above finding, he came to the conclusion that since petitioners are in illegal possession and occupation over the land in dispute, which is recorded as Rasta, as such, they are liable to be evicted from the same. Since on account of illegal possession and occupation of Gaon Sabha land damages have been caused by petitioners, therefore they are liable to pay damages for the same. Consequently, respondent-3, Assistant Collector/Tehsildar, Ballia, passed the order dated 20.6.2023, whereby not only an order of eviction was passed against the petitioners for evicting them from the land in dispute but also damages to the tune of Rs. 1,90,000/- were awarded against the petitioners for causing damage to Gaon Sabha land on account of illegal possession and occupation.
10. Against order dated 20.6.2023, petitioners filed an appeal before the Appellate Authority i.e. District Magistrate, Ballia. The same was registered as Appeal No. 1102 of 2023 (Imtiyaz Ahmad and Others Vs. Gram Sabha Turtipar and Others) under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition). Number of grounds was raised in the memo of appeal which was also pressed before the Appellate Authority. However, the Appellate Authority i.e. respondent-2 District Magistrate/Collector, Ballia without considering the same simply passed an order of affirmance and dismissed the appeal filed by petitioners vide order dated 13.10.2023.
11. Thus feeling aggrieved by above orders 20.6.2023 and 13.10.2023, referred to above, petitioners have now approached this Court by means of present writ petition under Article 226 of Constitution of India.
12. Mr. Rahul Sahai, the learned counsel for petitioners, submits that petitioners are the rightful owners of the Survey Plot Nos. 610 and 611. Proceedings under Section 24 of U.P. Revenue Code 2006 were initiated in respect of Survey Plot No. 610 after measurement and demarcation exercised was completed. Boundary marks were installed on Survey Plot No. 609. Since the area of Survey Plot No. 611 is deficient in the map, therefore, proceedings under section 30 of U.P. Revenue Code, 2006 have been initiated and are pending. On the above premise, it is thus contended that since proceedings regarding correction of map were also pending before the appropriate authority, therefore proceedings under Section 67 of U.P. Revenue Code, 2006 cannot have been initiated. In support of above, reliance is placed upon the judgment of this Court in Yagya Narain Jaiswal Vs. State of U.P. and Others, 2015 SCC OnLine All 7593 and Arvind Kumar Yadav Vs. State of U.P. and Others, 2018 (140) RD 473.
13. It is then submitted that Survey Plot No. 609 Ga, area 0.251 hectare is part of Survey Plot No. 609 which is Minjumla Plot comprising of various plots until and unless the partition of the various sub plot is given effect to on the spot in terms of Section 30(2) U.P. Revenue Code, 2006, they are independently represented in the map, no proceedings under section 67 could be undertaken independently in respect of Survey Plot No. 609.
14. According to learned counsel for petitioners, no statement of Lekhpal, who had submitted the report dated 2.2.2023, was recorded. As such, petitioners had no opportunity to cross examine the Halka Lekhpal, who had submitted the aforesaid report. Referring to the judgement of Rishipal Singh Vs. State of U.P. 2023 160 R.D. 204, it is urged that statement of Halka Lekhpal was mandatorily required. Since the order impugned dated 20.6.2023 has been passed in derogation of above and also the fact that no opportunity was afforded to the petitioners to cross examine the Lekhpal and procedure adopted by respondent-3 in deciding the case under Section 67 of U.P. Revenue Code, 2006 is manifestly illegal which has vitiated the order dated 20.6.2023.
15. It is further submitted that damages have been awarded against the petitioners to the tune of rs. 1,92,000/- and Rs. 2,000/- has been awarded as execution cost. However, from the perusal of order impugned dated 20.6.2023, passed by respondent-3 Assistant Collector/Tehsildar, Ballia, it is apparent that no attempt has been made by respondent-3 to calculate the market value of the land in dispute or determine the market value of the land in dispute nor there is any observation in the impugned order as to on what basis amount of damages has been quantified as Rs. 1,90,000/- with reference to material on record. It is thus urged that damages have been awarded against the petitioners in complete derogation of Rule 67(4) of U.P. Revenue Code, Rules, 2016. As such, the amount of damages awarded by court below is not only illegal, harsh, excessive, arbitrary but also illusionary.
16. Learned counsel for the petitioners then submits that aforesaid illegalities occurring in the order dated 20.6.2023 passed by respondent-3 Assistant Collector/Tehsildar, Ballia were specifically raised in the ground of appeal preferred against order dated 20.6.2023. The same were also pressed before the Appellate Authority i.e. respondent-2 District Magistrate/Collector, Ballia. However, respondent-2, District Magistrate/Collector, Ballia in ignorance of above dismissed the appeal filed by petitioners by simply passing an order of affirmance. It is thus urged that order of Appellate Authority dated 13.10.2023 is not only illegal but also unjust and arbitrary as the Appellate Authority has failed to exercise the jurisdiction vested in it, diligently. On the cumulative strength of above, it is urged by the learned counsel for petitioner that impugned orders cannot be sustained in law and fact and are therefore, liable to be quashed by this Court.
17. Per contra, the learned Standing Counsel for respondents- 1,2,3 and Mr. Vijay Bhan Singh, Advocate, holding brief of Mr. R.P. Shukla, the learned counsel representing respondent-4, Gaon Sabha have opposed the present writ petition. They submit that since a categorical finding has been returned by respondent-3 Assistant Collector/Tehsildar, Ballia that the petitioners are in illegal possession and occupation over the Survey Plot No. 609- Ga, therefore, no illegality can be attached to the order impugned. Respondent-3 has also returned a finding that upon measurement made in the map, it is found that the area of Survey Plot No. 611 i.e. tenure of the petitioners is correctly discripted in the map. On the above premise, what is sought to be urged is that since prima faice the petitioners were found to be in illegal possession and occupation of Gaon Sabha land, therefore, the order of eviction was rightly passed against the petitioners. In the submission of learned Standing Counsel, since the land in dispute is a public utility Rasta, therefore, same shall fall within the category of public utility land. Consequently, same shall stand covered by Section 67 of the U.P. Revenue Code. Since the land in dispute is to be utility land, therefore, no right can accrue in favour of petitioners over the same even on the basis of long uninterrupted possession. No benefit can be granted to petitioners either under section 67 A of U.P. Revenue Code, 2006.
18. On the above conspectus, it is thus urged that no illegality has been committed by Appellate Authority i.e. District Magistrate/Collector, Ballia in dismissing the appeal filed by petitioners. They, therefore, contend that present writ petition does not merit consideration by this Court and is therefore, liable to be dismissed.
19. Having heard the learned counsel for petitioners, the learned Standing Counsel for respondents- 1,2,3 and Mr. Vijay Bhan Singh, Advocate, holding brief of Mr. R.P. Shukla, the learned counsel representing respondent-4, Gaon Sabha and upon perusal of record, this Court finds that the dispute relates to Survey Plot No. 609-ga, area 0.251 hectare, which is recorded as Rasta in the revenue records, since the land in dispute is public Rasta, therefore, same shall fall within the rigours of Section 67 of U.P. Revenue Code i.e. land in dispute is a public utility land, on account of above, no right can accrue in favouur of petitioners in the land in dispute, even on the basis of long and uninterrupted possession, however, the Court finds that petitioners have purchased Survey Plot No. 610 and 611, admittedly the proceedings under section 30 of U.P. Revenue Code, with regard to correction of map regarding Survey Plot No. 611 has already been initiated. In view of above and the law laid down by this Court as noted above, the proceedigns under Section 67 of U.P. Revenue Code, 2006 cannot be maintained during the pendency of the proceedings for correction of map. Apart from above, the Court further finds that Survey Plot No. 609 is a Minzumla Plot comprising various sub plots. However, there is nothing on record to show that the various sub plots of Survey Plot No. 609 were measured and demarcated in terms of Section 30(2) of U.P. Revenue Code, 2006, inasmuch as, there is no recital to that effect in the impugned order.
19. In view of above, this Court finds that since Survey Plot No. 609 Ga which is part of Minzumla was not specifically measured and demarcated and independently represented in the map, no proceedings under section 67 of U.P. Revenue Code, 2006 could have been initiated against the petitioners in terms of Section 67 of U.P. Revenue Code, 2006. Moreover, the damages have been awarded against the petitioners in derogation of Rule 67 (4) of U.P. Revenue Code, Rules, 2006. There is nothing on record to show as to on what basis respondent-3 Assistant Collector/Tehsildar, Ballia determined the market value of land in dispute and by which procedure, the amount of damages caused by petitioners came to be quantified at Rs. 1,92,000/-. As such, damages awarded against petitioners under the impugned order dated 20.6.2023 is a bald conclusion bereft of any derivative finding in the order impugned. As such, the learned counsel for petitioners is right in his submission that the damages awarded against petitioners are not only illegal, harsh, excessive, arbitrary but also illusionary.
20. In view of the discussion made above, present writ petition succeeds and is liable to be allowed.
21. It is accordingly allowed.
22. The impugned order dated 20.6.2023, passed by respondent-3 Assistant Collecor/Tehsildar, Ballia in Case No.266 of 2023 (Gram Sabha Vs. Imtiyaz and Others) under Section 67 of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) as well as the order dated 13.10.2023, passed by respondent-2 District Magistrate/Collector, Ballia in Appeal No. 1102 of 2023 (Imtiyaz Ahmad and Others Vs. Gram Sabha Turtipar and Others) under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) are, hereby, quashed.
23. It shall, however, be open to respondent-3- Assistant Collector/Tehsildar, Ballia to initiate fresh proceedings under section 67 of U.P. Revenue Code, 2016 after disposal of the proceedings under section 30 (2) of U.P. Revenue Code, 2006, initiated by petitioners in respect of Survey Plot No. 611 and further upon measurement and demarcation of Survey Plot No. 609 and it's consequential independent representatives in the map.
24. In the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 19.03.2024 Arshad