Allahabad High Court
Amit Kumar Dubey And 2 Others vs State Of U.P. And 2 Others on 3 August, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- WRIT - C No. - 11235 of 2022 Petitioner :- Amit Kumar Dubey And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vidya Dhar Dubey Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioners, Sri Bhupendra Kumar Tripathi, learned counsel for the Gaon Sabha as well as learned Standing Counsel.
By means of this petition under Article 226 of the Constitution, the petitioners have assailed the order dated 28.02.2022, whereby, the matter has been remanded to the concerned Tehsildar on the ground that the decision of the Tehsildar was not justified in respect of allegations of unauthorized possession over a land of Gaon Sabha falling in plot no. 554 with an area 0.45 hectares.
Learned counsel for the petitioners has vehemently urged before this Court that the view taken by the Collector in his order dated 28.02.2022 is highly misplaced for the simple reason that once the earlier proceedings have come to be withdrawn under Section 122-B of the erstwhile U.P.Z.A. & L.R. Act, 1950 in respect of the same plot number, the subsequent notice could not have been issued. He has further argued that allegations of five years possession as has come to be recorded in the order of the Collector and has been prima facie found to be correct, would mean that when the notice was issued to their father and uncle in the year 2016, there was already possession of the present petitioners over the land in question and no notices were issued. A plea of manifest error of law and facts has been taken before this Court in this petition.
Learned counsel for the Gaon Sabha as well as learned Standing Counsel have argued that absolutely a misinterpretation of the order of Collector has been placed before this Court by learned counsel for the petitioners and in support of this submission they have taken the Court to the latest notice issued to the present petitioners on 20.02.2018 which shows that it is a notice issued to the present petitioners only and in respect of an area 0.045 hectares of plot no. 554. This notice was issued under Section 67 of U.P. Revenue Code, 2006 and it is argued that upon comparing this notice with the earlier notice issued under Section 122-B of U.P.Z.A. & L.R. Act on 20.01.2015 it can be seen that earlier a notice was issued to the father and uncle of the petitioners only and that too to the extent of an area 0.018 hectares. It is thus, argued that looking to the two different notices issued at two different stages to different people it demonstrates that the observations made by the Collector with regard to the two cases as different cases are absolutely justified. It is therefore, argued that no interference should be made by this Court in exercise of its equitable jurisdiction under Article 226 of the Constitution of India in the matter of remand of a case where unauthorized encroachment upon a Gaon Sabha land is in issue.
Having heard learned counsel for the respective parties and their arguments raised across the bar, I find that there is a click worth consideration in the two notices, the first notice that was issued under Section 122-B of U.P.Z.A. & L.R. Act, as referred herein above, was with regard to the possession of the father and uncle of the petitioner in respect of an area 0.018 hectare only of plot no. 554. That notice ultimately stood withdrawn. So, in such circumstances, no fresh notices could have been issued or proceedings could have been drawn in respect of the possession of father and uncle of the petitioners over the area mentioned in the notice. However, in respect of the petitioners' possession over the same plot of an area of 0.045 hectares, the notice was maintainable under Section 67 of U.P. Revenue Code, 2006 and to that extent the two cases are of course different, but under no circumstances, the authorities can go into the question of possession of the father and uncle of the petitioners over an area 0.018 hectare in respect of which notices were withdrawn and no further appeal was preferred by the State or the Gaon Sabha.
In view of the above, therefore, even though I am declining to interfere in the matter of remand made by the Collector/ District Magistrate, Jaunpur under order dated 20.02.2022, I may observe at the same time that the proceedings should not be deemed to be in respect of the possession of the father and uncle of the petitioners over 0.018 hectare of land falling in plot no. 554. Since the total area of plot no. 554 is stated to be 0.113 hectares, the revenue authorities would examine the question of unauthorized possession only in respect of an area other than the area 0.018 hectare and therefore, they will be treating for this purpose the area to be only 0.95 hectares of plot no. 554. Proper exercise of measurement shall be done on the spot in presence of the father and uncle of the petitioners and the petitioners as well demarcating the boundaries of plot no. 554 to the extent of 0.95 hectares on the basis of scale provided for such purpose. Spot memo will be prepared and then the requisite report will be submitted. It is thereafter, objections, if any will be permitted to be taken by the petitioners and the proceedings thereafter shall be concluded in accordance with law within time prescribed for.
With these observations and directions, this writ petition stands disposed of.
Order Date :- 3.8.2022/IrfanUddin