Allahabad High Court
Amrit Lal vs State Of U.P. And 3 Others on 19 March, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on : - 17.01.2024 Delivered on :- 19.03.2024 Court No. - 83 Case :- WRIT - C No. - 36966 of 2023 Petitioner :- Amrit Lal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Dev Prakash Singh Counsel for Respondent :- CSC,Achal Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. Dev Prakash Singh, the learned counsel for petitioner, Mr. Abhishek Shukla, the learned Additional Chief Standing Counsel for Respondents 1 to 3 and Mr. Ambuj Srivastava, Advocate, holding brief of Mr. Achal Singh, the learned counsel representing Respondent 4.
2. At the very outset, the learned standing counsel and the learned counsel representing respondent 4 submit that present writ petition be decided finally without calling for a counter affidavit. Learned counsel for petitiioner has not objection to the same. Accordingly, with the consent of the counsel for the parties, the present writ petition is being decided finally at the admission stage, without calling for a counter affidavit.
2. Perused the record.
3. Challenge in this writ petition is to the order dated 31.03.2023 passed by Respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot in Case No. 603 of 2020 (Gaon Sabha Chakaundh Vs. Amrit Lal), under Section 67 of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) and the order dated 27.07.2023 passed by Respondent 2, Collector/District Magistrate, Chitrakoot in Appeal No. 213 of 2023 (Amrit Lal Vs. Gaon Sabha Chakaundh), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-3 to the writ petition), whereby aforesaid appeal filed by petitioner against order dated 31.03.2023 has been dismissed.
4. Record shows that the dispute relates to Survey Plot No. 466 area 0.182 hectares situate in Village-Chakaundh, Tehsil-Karvi, District-Chitrakoot. The halka Lekhpal submitted a report dated 08.01.2020 (RC Form-19) alleging therein that Survey Plot No. 466 area 0.182 hectares is recorded in category 5(1) (Naveen Parti) in the Khatauni of 1424-1429 Falsi. However, the petitioner-Amrit Lal has encroached upon an area of 0.015 hectares of aforesaid plot by illegaly constructing a boundary wall and thereby caused damage to the tune of Rs. 3,77,000/- to the Gaon Sabha.
5. Upon receipt of aforesaid report dated 08.01.2020, proceedings under Section 67 of U.P. Revenue Code, 2006 were initiated against the petitioner. Accordingly Case No. 603 of 2020 (Gaon Sabha Chakaundh Vs. Amrit Lal), under Section 67 of U.P. Revenue Code, 2006 came to be registered against petitioner in the court of respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot.
6. A show cause notice (RC Form-20) in terms of Section 67(2) of U.P. Revenue Code, 2006 was issued to the petitioner to show cause why an order of eviction/damages be not passed against petitioner for illegal possession/encroachment over Gaon Sabha land and thereby causing damage to the same. Upon receipt of aforesaid notice, petitioner duly appeared before respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot and filed an application seeking time to file objections. The petitioner, thereafter, duly filed his objections dated 18.07.2020 disputing the correctness of the proceedings. According to the petitioner, the land in dispute is Abadi on the spot. The predecessors in interest of the petitioner were in possession over the land in dispute. As such, petitioner is the Abadi holder of the land in dispute. The Halka Lekhpal has submitted his report on account of village politics which is factually and legally incorrect. Petitioner also filed documentary evidence in support of his objections namely C.H. Form-41, C.H. Form-45, Map of 1416 Fasli.
7. In view of the specific denial by petitioner regarding encroachment/illegal possession/occupation over Gaon Sabha land, the issue whether petitioner is in illegal possession/occupation over Gaon Sabha land become a contentious issue. Accordingly, the parties went to trial.
8. The halka Lekhpal who had submitted the report dated 08.01.2020 and which report formed the basis of the proceedings under Section 67 of U.P. Revenue Code, 2006 duly appeared before Respondent 3 and proved the report dated 08.01.2020 submitted by him.
9. Upon evaluation of the pleadings of the parties, the material on record and the submissions urged, Respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot came to the conclusion that the land in dispute is recorded as Naveen Parti (Category 5(1)). As such, the land in dispute is Gaon Sabha land. The petitioner has failed to prove his right, title and interest over the land in dispute by any cogent evidence. Petitioner is therefore, in illegal possession and occupation of Gaon Sabha land. No right can be acquired by petitioner over the land in dispute on the basis of long and uninterrupted possession. Since petitioner has caused damage to Gaon Sabha land by raising a wall, therefore, he is also liable to pay damages. Accordingly, Respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot passed the order dated 31.03.2023 whereby not only an order of eviction of petitioner from the land in dispute was passed but also damages were imposed against petitioner to the tune of Rs. 3,77,000/-.
10. Against order dated 31.03.2023, petitioner preferred an appeal before the appellate authority i.e. Respondent 2, Collector/District Magistrate, Chitrakoot in terms of Section 67(5) of U.P. Revenue Code, 2006. The same was registered as Appeal No. 213 of 2023 (Amrit Lal Vs. Gaon Sabha Chakaundh).
11. The appellate authority i.e. Respondent 2, Collector/District Magistrate, Chitrakoot did not agree with the grounds raised in the memo of appeal or the submissions urged on behalf of petitioner in support of the appeal. The appellate authority with reference to the documents on record as is evident from the recital contained in the 3rd paragraph at internal page 2 of the certified copy of order dated 27.07.2023 concurred with the findings recorded by Respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot. The appellate authority i.e. Respondent 2, Collector/District Magistrate, Chitrakoot consequently passed an order of affirmance and dismissed the appeal filed by petitioner, vide it's order dated 27.07.2023.
12. Thus feeling aggrieved by the orders dated 31.03.2023 and 27.07.2023 referred to above, 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 the orders impugned in present writ petition are manifestly illegal and without jurisdiction. Consequently, the same are liable to be quashed by this Court. It is then contended that on behalf of petitioner, evidence was filed before respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot in support of the fact that the land in dispute was previously recorded as Abadi. The same is evident from the recital contained in paragraph 4 of the certified copy of the order dated 31.03.2023. However, no attempt has been made by respondent 4 to consider the same and record a finding as to on what basis, the land in dispute came to be recorded as Naveen Parti. On the above premise, it is thus sought to be urged that since the petitioner is in rightful possession and occupation over the land in dispute which possession has continued from the time of predecessors in interest of the petitioner, therefore, the proceedings under Section 67 of U.P. Revenue Code, 2006 were liable to be dropped. The proper course for the revenue authorities was to intiate proceedings under Section 38 of U.P. Revenue Code, 2006 and correct the revenue records in the light of the documents prepared during the consolidation operations, and in case, even thereafter the land in dispute was found to be gaon sabha land, proceedings under Section 67 of U.P. Revenue Code, 2006 could have been maintained/continued.
14. It is then contended by the learned counsel for petitioner that respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot has awarded damages to the tune of Rs. 3,77,000/- against petitioner without discussing as to on what basis the market value of the land in dispute has been calculated. There is no discussion in the impugned order as to how the quantum of damages has been calculated/determined either. It is thus urged that the damages awarded against petitioner, is in derogation of the mandatory provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016, which provides the method and methodlogy for calculating damages. As such, damages awarded by respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot against petitioner is a bald conclusion bereft of any derivative discussion/finding. The damages so awarded against petitioner is thus not only illegal, unjust, arbitrary, harsh and excessive but also illusionary. As such, the order passed by respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot cannot be sustained and is therefore, liable to be quashed by this Court.
15. The aforesaid illegalities were duly pointed out before the Appellate Authority i.e. respondent 2, Collector/District Magistrate, Chitrakoot. However, respondent 2 without adverting to the aforesaid aspect of the matter, has summarily dismissed the appeal filed by petitioner by passing an order of affirmance. It is thus urged by the learned counsel for petitioner that the appellate authority has failed to exercise it's jurisdiction diligently inasmuch as, the appellate authority has not adverted to the aforesaid illegalities existing in the order passed by respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot as no finding has been recorded regarding the same. The Appellate Authority has thus exercised it's jurisdiction in a casual and caviliar fashin. Consequently, the order passed by the appellate authority i.e. Collector/District Magistrate, Chitrakoot is not only illegal but also unjust and arbitrary and therefore, liable to be quashed by this Court.
16. On the other hand, the learned Standing Counsel for respondents 1 to 3 and Mr. Achal Singh, the learned counsel representing respondent 4 have, however, opposed the present writ petition. They submit that it is an undisputed fact that the land in dispute is recorded as Naveen Parti in the revenue records. As such, proceedings under Section 67 of U.P. Revenue Code, 2006 have been rightly initiated against the petitioner as he was in illegal possession and occupation of Gaon Sabha land. It is then contended that since the petitioner was aggrieved by the revenue entry occurring in the revenue records regarding the land in dispute, therefore, burden was upon the petitioner himself to initiate proceedings under Section 38 of U.P. Revenue Code, 2006 for correction of revenue records in the light of documents prepared during consolidation operations and as noted by respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot in paragraph 4 of the certified copy of the order dated 31.03.2023. Admittedly, no proceedings were initiated by the petitioner himself regarding above. As such, petitioner cannot claim the benefit of his own wrong. In view of above, the order of eviction passed against petitioner by respondent 3 as affirmed by the appellate authority i.e. respondent 2, Collector/District Magistrate, Chitrakoot do not suffer from any illegality and consequently, the same are not liable to be interfered with by this Court. However, they could not dislodge the submission urged by the learned counsel for petitioner regarding the illegality in the amount of damages awarded against petitioner.
17. 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. 466, area 0.182 hectares situate in Village-Chakaundh, Tehsil-Karvi, District-Chitrakoot. The land in dispute is admittedly recorded as Naveen Parti in the revenue records. On account of revenue entry existing in the revenue records regarding the land in dispute, the proceedings under Section 67 of U.P. Revenue Code, 2006 could very well be maintained. The Court, however, finds that the land in dispute i.e. Survey Plot No. 466 area 0.182 hectares is recorded as Abadi as is established from the Khasra of 1426 F. However, as per the khatauni of 1424-1429 F, the land in dispute is recorded as Naveen Parti. Though the plea was raised by the petitioner before respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot that the land in dispute is not Gaon Sabha land as per the entries occuring in C.H. Form-41 and C.H. Form-45 but no finding has been recorded by respondent 4 in the light of the evidence adduced by the petitioner. In any case, since it is the petitioner, who is aggrieved by the entries occurring in the khatauni, therefore, burden is upon the petitioner himself to initiate proceedings under Section 38 of U.P. Revenue Code, 2006 for correction of the revenue record in the light of the documents prepared during consolidation operation.
18. The Court further finds that damages have been awarded against petitioner in ignorance of the mandatory provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016. The same is not irregular but illegal. There is no discussion in the order passed by respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot as to on what basis, the market value of the land was arrived at and by which process, the amount of damages was calculated against petitioner. As such, respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot has failed to exercise the jurisdiction vested in him diligently. The appellate authority has simply dismissed the appeal filed by petitioner by passing an order of affirmance without adverting to the aforesaid illegalities occurring in the order passed by respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot, even though, the same was specifically raised and pressed before the appellate authority, as is evident from the grounds of appeal.
19. In view of the discussion made above, the present writ petition succeeds and is liable to be allowed.
20. It is accordingly allowed.
21. The impugned order dated 31.03.2023 passed by Respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot in Case No. 603 of 2020 (Gaon Sabha Chakaundh Vs. Amrit Lal), under Section 67 of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) and the order dated 27.07.2023 passed by Respondent 2, Collector/District Magistrate, Chitrakoot in Appeal No. 213 of 2023 (Amrit Lal Vs. Gaon Sabha Chakaundh), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-3 to the writ petition) are hereby quashed.
22. The matter shall stand remanded to respondent 3, Assistant Collector/Tehsildar (Judicial), Karvi Chitrakoot who shall decide the proceedings under Section 67 of U.P. Revenue Code, 2006 afresh in the light of the observations made hereinabove.
23. It shall be open to the petitioner to initiate proceedings under Section 38 of U.P. Revenue Code, 2006 for correction of the revenue record as per the documents prepared during consolidation operations and the revenue entries occurring in the khasra.
24. In the facts and circumstances of the case, there shall, however, be no order as to cost.
Order Date :- 19.03.2024/Vinay