Allahabad High Court
Sahabuddin vs State Of U.P. And 4 Others on 7 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:21206 Court No. - 5 Case :- WRIT - C No. - 40152 of 2023 Petitioner :- Sahabuddin Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pradeep Kumar,Piyush Patel Counsel for Respondent :- C.S.C.,Sudhir Bharti Hon'ble Rajeev Misra,J.
1. Heard Mr. Pradeep Kumar, the learned counsel for petitioner, the learned standing counsel representing respondents 1, to 4 and Mr. Brij Kumar Saroj, Advocate holding brief of Mr. Sudhir Bharti, the learned counsel representing respndent-5.
2. Perused the record.
3. Challenge in this writ petition is to the order dated 18.01.2023 passed by respondent-4, Tehsildar (Judicial) Tehsil-Sadar, District-Maharajganj in Case No. 929 of 2023 ( Sahabuddin Vs. State) under Section 67 of U.P. Land Revenue Code 2006 ( Annexure 2 to the writ petition) and the order dated 27.10.2023 passed by respondent-2, Additional District Magistrate (Finance and Revenue), Maharajganj in Appeal No. 929 of 2023 (Shahabuddin Vs. Gaon Sabha) under Section 67 (5) of U.P. Revenue Code 2006 (Annexure 5 to the writ petition, whereby the appeal filed by petitioner against order dated 18.02.2023 has been dismissed.
4. Present writ petition came up for admission on 19.01.2024 and this Court passed the following order:
"Heard Mr. Piyush Patel, the learned counsel for petitioner, the learned Standing Counsel representing respondents 1 to 4 and Mr. Sudhir Bharti, the learned counsel representing respondent no.5.
Challenge in this writ petition is to the order dated 18.01.2023, passed by respondent no.4-Tehsildar (Judicial), Tehsil Sadar, district Mahrajganj in Case No.9133 of 2021 (Gaon Sabha Vs. Sahabuddin), under Section 67 of U.P. Revenue Code, 2006 and the order dated 27.10.2023, passed by respondent no.2-Additional District Magistrate (Finance & Revenue), Mahrajganj in Appeal No.929 of 2023 (Sahabuddin Vs. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006.
Learned counsel for petitioner has invited attention of the Court to the judgement rendered by this Court in Rishipal Singh Vs. State of U.P. And 3 others 2022 SCC OnLine All 829 and also the averments made in paragraph 15 of the writ petition.
In view of above, the learned Standing Counsel is directed to obtain instructions regarding above.
Matter shall accordingly re-appear, as fresh, on 02.02.2024.
Order Date :- 19.1.2024. "
5. Pursuant to above order dated 19.01.2024, the learned standing counsel has received instructions in the matter, Copy of the same has been placed before this Court and the same is taken on record.
6. Record shows that the dispute relates to survey plot o. 149 area 0.295 hectares situate in village-Panchayat-Kotwa, Tappa-Biraicha, Pargana Haveli, Tehsil, Sadar, District-Maharajganj. The Halka Lekhpal submitted his report dated 18.09.2021 (R.C. Form-19) stating therein that petitioner is in illegal possession and occupation over an area of 0.215 hectares of the land in dispute. Consequently, proceedings under Section 67 of U.P. Revenue Code 2006 came to be registered against petitioner in the Court of respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj by way of Case No. 9133 of 2021 (Gaon Sabha Vs. Sahabuddin) under Section 67- of U.P. Revenue Code 2006.
7. Notice (R.C. Form No. 20) in terms of Section 67(2) of U.P. Revenue Code, 2006 was issued to the petitioner asking him to show cause why an order of eviction be not passed against petitioner and further why damages be also not imposed against petitioner for causing damage to Gaon Sabha land on account of illegal possession and occupation of Gaon Sabha land. In response to the said notice, the petitioner duly appeared in aforementioned case and filed his objections dated 25.01.2022. Petitioner disputed the contents of the report submitted by Halka Lekhpal and further alleged that he is not in illegal possession or occupation over survey plot no. 149, which is recorded as pond or survey plot no. 271 which is recorded as a road. The house of the petitioner is situate in Abadi (Dih). As such, it was urged on behalf of petitioner that the report submitted by Halka Lekhpal is manifestly incorrect and is liable to be ignored. Consequently proceedings under Section 67 of U.P. Revenue Code 2006 initiated against petitioner are also liable to be dropped. Since the petitioner had denied his possession and occupation over the land in dispute, the issue as to whether the petitioner is in illegal possession and occupation of Gaon Sabha land became a triable issue. Accordingly, Revenue Inspector was directed to conduct the spot inspection and thereafter submit his report. Pursuant to above, on the spot inspection was conducted and reports dated 11.12.2021 and 27.03.2022 were submitted wherein it was alleged that petitioner is in illegal possession and occupation over survey plot no. 149 area 0.012 hectare.
8. Apart from above, respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj, himself conducted spot inspection on 12.01.2023. It is apposite to mentioned herre that the petitioner has relied upon the order dated 10.06.2009 passed by respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj in favour of petitioner in Case No. 139/177 (Gaon Sabha Vs. Sahabuddin) under Section 112 B of U.P. ZA & LR Act, whereby and whereunder, the proceedings so initiated against petitioner were dropped. Copy of the same has been brought on record as Annexure-1 to the writ petition.
9. Respondent -3, Sub Divisional Magistrate, Tehsil Sadar, District Maharajganj, upon consideration of the material on record, came to the conclusion that since the land in dispute i.e. survey plot no. 149 are 0.295 hectare is recorded as pond in the revenue record, therefore, same is a public utility land. Consequently, same is covered under Section 77 of U.P. Revenue Code 2006. In view of above, no right, title and interest can accrue in favour of petitioner even on the basis of long and uninterrupted possession. Resultantly, respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj vide order dated 18.01.2023 has not only directed for eviction of petitioner from the land in dispute but also damages were imposed against petitioner to the tune of Rs.11, 600/-
10. Against order dated 18.01.2023 passed by respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj, petitioner filed an appeal before the appellate authority i.e District Magistrate/Collector, Maharajganj, The same was registered as Appeal No. 929 of 2023 ( Sahabuddin Vs.Gaon Sabha) under Section 67 (5) of UP Revenue Code 2006. In the appeal so filed by petitioner, number of grounds were raised regarding illegality in the order dated 18.01.2023 passed by respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj. However, none of the grounds raised the memo of appeal nor the submissions urged on behalf of petitioner before appellate authority found favour with the appellate authority. Consequently, respondent-2, Additional District Magistrate (F/R) Maharajganj dismissed the appeal filed by the petitioner by passing an order of affirmance dated 27.10.2023.
11. Thus feeling aggrieved by the order dated 18.01.2023and 27.10.2023 passed by respondents 2 and 3 respectively, petitioner has now approached this Court by means of present writ petition under Article 226 of the Constitution of India.
12. Learned counsel for petitioner submits that admittedly the proceedings under Section 67 of U.P. Revenue Code 2006 were drawn against petitioner on the basis of report dated 18.09.2021 submitted by Halka Lekhpal. However, the Halka Lekhpal himself did not appear before respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj to prove the aforesaid report. As such there was no conclusive material before respondent 4 to arrive at the conclusion that petitioner is in illegal possession or occupation over Gaon Sabha Land. Referring to the judgment of this Court in Rishipal Singh Vs. State of U.P., 2023 (1) ADJ 154. It is then contended that on the spot inspection was conducted regarding land in dispute and the spot inspection reports dated 11.12.2021 and 27.03.2022 were submitted regarding the same. However, spot inspection was carried out in absence of the petitioner.As such, the order impugned dated 18.01.2023 passed by respondent 4 is based upon a material which was prepared without giving notice and opportunity of hearing to petitioner, or the same was proved before respondent 3.
13. In view of above, this Court passed an order dated 19.01.2024 directing the learned standing counsel to obtain instructions in the matter. Pursuant to above order, the learned standing counsel has obtained instructions in the matter and on the basis thereof he contends that the spot inspection was conducted in the absence of the petitioner. Copies of the instructions so received by the learned standing counsel have been placed before court below, which are taken on record.
14. Learned counsel for petitioner then submits that damages have been awarded against petitioner to the tune of Rs. 11,160/- However, the amount of damages so awarded are not only illegal, irrational but also illusionary. There is nothing on record to show that proceedings in terms of Rule 67 (4) of U.P. Revenue Code Rules, 2016 were undertaken to arrive at the amount of damages caused by petitioner to Gaon Sabha Land. According to the learned counsel for petitioner, earlier proceedings under Section 122B of U.P. ZA & LR Act initiated against petitioner were dropped on account of the fact that the land in dispute is not capable of being measured. However, respondent-3, Sub-Divisional Magistrate, Tehsil Sadar, District-Maharajganj, while passing the order impugned has not adverted to aforesaid aspect of the matter. Above grounds were specifically raised in the memo of appeal filed by petitioner and also pressed before the appellate authority. However, none of the ground raised in the memo of appeal as well as the submissions urged on behalf of petitioner before the appellate authority found favour with him. The appellate authority simply dismissed the appeal filed by the petitioner by passing an order of affirmance. He therefore contends that appellate authority has failed to exercise the jurisdiction vested in him diligently. As such, order of appellate authority is not only illegal but also arbitrary in the facts and circumstances of the case. On the above conspectus he therefore contends that present writ petition is liable to be allowed by this Court.
15. Per contra, the learned standing counsel representing respondents 1 to 4 and Mr. Sudhir Bharti, the learned counsel representing respondent-5 have opposed this writ petition. They submit that it is an undisputed fact that land in dispute is recorded as a pond in the revenue record. Consequently, land in dispute is a public utility land and therefore, covered under Section 77 of U.P. Revenue Code 2006. Consequently, no right can accrue in favour of petitioner over the land in dispute on the basis of long and uninterrupted possession. No benefit can be granted to the petitioner in terms of Section 67-A of U.P. Revenue Code, 2006 either. An order passed under Section 122B of U.P. ZA & LR Act now section 67 of U.P. Revenue Code 2006 does not constitute res-judicata. As such, no benefit can be claimed by the petitioner from the earlier order dated 10.06.2009 since the petitioner was found in illegal possession and occupation over Gaon Sabha Land. Consequently, no illegality or irregularity has been committed by the authorities below in passing the order of eviction against petitioner and further imposing damages against petitioner. They, therefore, submit that present writ petition does not involve any substantial question of law and fact and therefore, same is liable to be dismissed by this Court.
16. In rejoinder, the learned counsel for petitioner has disputed the submissions urged by the learned standing counsel as well as the learned counsel representing respondent 5. He contends that judicial review of a decision is not like an appeal of the decision, but is confined to the decision making process. Admittedly, in the present case proceedings under Section 67 of U.P. Revenue Code 2006 were initiated against petitioner on the basis of report dated 18.09.2021 submitted by Halka Lekhpal. However, the Halka Lekhpal himself did not appear before respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajgaj to prove the report. As such, the basis of the proceedings initiated agaisnt petitioner under Section 67 of UP. Revenue Code 2006 was not proved. The Halka Lekhpal was under a judicial mandate to appear and prove the report so submitted by him, in view of the law laid down by this Court in the case of Rishipal Singh (Supra). It is then contended that spot inspection reports dated 11.12.2021 and 27.03.2022 were submitted by Revenue Inspector. However, as per the instructions received by the learned Standing Counsel pursuant to the order dated 19.01.2024 passed by this Court, it is evident that spot inspection was carried out by the Revenue Inspector in the absence of the petitioner. As such, the order dated 18.01.2023 passed by respondent 3 is based upon a material which was prepared without giving notice and opportunity of hearing to petitioner nor the said report was itself proved. With reference to above, the learned counsel for petitioner contends that there was no concluded material before respondent-4 to conclude that petitioner is in illegal possession and occupation over Gaon Sabha Land. On the cumulative strength of above, he therefore submits that present writ petition is liable to be allowed and the matter is liable to be remanded to respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj for decision afresh after giving an opportunity of hearing to the petitioner and in the light of the facts/observations made herein above.
17. Having heard the learned counsel for petitioner, the learned standing counsel representing respondents 1 to 4, Mr. Sudhir Bharti, the learned counsel representing respondent-5 and upon evaluation of the submissions urged by the learned counsel for the parties, this Court finds that admittedly the proceedings under Section 67 of U.P. Revenue Code 2006 were initiated against petitioner on the basis of the report dated 18.09.2021 submitted by Halka Lekhpal. However, the Halka Lekhpal himself did not appear before respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj to prove the report. The court funder finds that pursuant to the order passed by respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajga, the Revenue Inspector conducted spot inspection and submitted the reports dated 11.12.2021 and 27.03.2022. However, as per instructions received by the learned standing counsel in compliance of order dated 19.01.2024 passed by this Court, it is apparent that spot inspection was conducted in the absence of petitioner. Consequently, the order impugned ate 18.01.2023 is based upon the material, which was prepared without giving notice and opportunity of hearing to the petitioner and without proving the said document before respondent 3. Apart from above, the Court further finds that damages have been awarded against petitioner without adverting to the mandatory provisions of Rule 67 (4) of U.P. Land Revenue Code Rules 2016. The appellate authority while dismissing the appeal filed by the petitioner has not specifically dealt with any of aforesaid issues but has dismissed the appeal filed by the petitioner simply passing an order of affirmance. Consequently. the Court has no hesitation to observe that authorities below have failed its exercise their jurisdiction diligently. As such, the impugned orders cannot be sustained and are liable to be quashed by this Court.
18. In view of the observation made herein above, present writ petition succeeds and is allowed.
19. The impugned order dated 18.01.2023 passed by respondent-4, Tehsildar (Judicial) Tehsil-Sadar, District-Maharajganj in Case No. 929 of 2023 ( Sahabuddin Vs. State) under Section 67 of U.P. Land Revenue Code 2006 ( Annexure 2 to the writ petition) and the order dated 27.10.2023 passed by respondent-2, Additional District Magistrate (Finance and Revenue), Maharajganj in Appeal No. 929 of 2023 (Shahabuddin Vs. Gaon Sabha) under Section 67 (5) of U.P. Revenue Code 2006 (Annexure 5 to the writ petition are hereby quashed. The matter is remitted to respondent 4, Tehsildar (Judicial) Tehsil Sadar, District-Maharajganj, who shall proceed to decide the proceedings under Section 67 of U.P. Land Revenue Code 2006 in the light of the observations made herein above after giving a notice and opportunity of hearing to the petitioner. The necessary exercise shall be completed within a period of three months from the date of production of the certified copy of this order.
20. Considering the facts and circumstances of the case, cost is made easy.
Order Date :- 7.2.2024/YK