Allahabad High Court
Awadesh Narayan Tiwari vs State Of U.P. And 03 Others on 7 February, 2020
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 9 Case :- WRIT - C No. - 38307 of 2019 Petitioner :- Awadesh Narayan Tiwari Respondent :- State Of U.P. And 03 Others Counsel for Petitioner :- Brijesh Kumar Pandey Counsel for Respondent :- C.S.C.,Diwakar Singh,Krishna Kant Singh Hon'ble Anjani Kumar Mishra,J.
Heard Shri Brijesh Kumar Pandey, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The writ petition arises out of proceedings under Section 67 of the U.P. Revenue Code, 2006, wherein the petitioner had been ordered to be evicted from plot no.509M area 0.057 hectares situated in village Badanpur Kadipur Ichauli, Pargana Kada, Tehsil Sirathu, District Kaushambi and damages of Rs.25,000/- have been imposed, vide order dated 11.09.2019 passed by the Tehsildar. This order has been affirmed upon dismissal of the subsequent appeal by the Collector, vide order dated 30.10.2019. It is these two orders, which are impugned in this writ petition.
An application along with an affidavit has been filed by the petitioner seeking an amendment in the writ petition, wherein it has been stated that plot no.510 has wrongly been mentioned in paragraphs 4 and 5 and grounds 1,2 and 3 in place of plot no.509.
Accordingly, this Court is treating the plot no.510 mentioned in paragraphs 4 and 5 of the writ petition and the grounds thereof as plot no.509 as is the plea of the petitioner.
On the proceedings being initiated, the petitioner failed to appear and therefore, an exparte order of eviction was passed on 01.08.2019. Subsequently this order was set aside and a fresh order has been passed on 11.09.2019 by the Tehsildar ordering eviction of the petitioner after hearing him and after taking into consideration, the evidence filed by the petitioner.
The defence of the petitioner was that the alleged encroachment, namely, a charhi and tin shed were old structures in existence since the time of his ancestors. They do not exist on plot no.509 but exists on the old abadi, namely, plot no.510.
In the proceedings and on an application filed by the petitioner, a fresh survey was carried out by a revenue team, which also established the petitioner's encroachment.
The Tehsildar, on the basis of the khasra filed by the petitioner himself, found that the plot no.509 is recorded, therein as naveen parti and that in the survey conducted, the petitioner's encroachment over plot no.509 was established.
It was also observed that the petitioner could not prove his defence that his tin shed and charhi existed over the abadi plot and therefore, eviction was ordered.
On this petition being filed, this Court had directed for a fresh survey, which survey report has been filed along with a compliance affidavit.
The petitioner has filed an objection to the survey report aforesaid. The allegation being that there is no boundary marks fixed on plot no.270 as is alleged in the survey report. The other objection is that the fixed point identified on plot no.784 has been so identified on the basis of the statement of the villagers and therefore, the same was not a valid fixed points. It is, therefore, contended that the survey report is not worthy of credence and the writ petition is liable to be allowed.
Learned Standing counsel has submitted that the survey has been carried out and made from one existing fixed point, namely, a boundary mark existing on plot no.207. From this fixed point, various measurements and triangulation was carried out and two other fixed points was identified on its basis which identified fixed points match with the existent revenue map. This survey report is correct and shows that the petitioner has encroached upon the land of the Gaon Sabha recorded as Naveen Parti. His eviction has rightly been ordered and the writ petition deserves to be dismissed.
I have considered the submissions made by counsel for the parties and perused the record.
The only point for consideration before this Court is whether the survey report brought on record pursuant to the order passed by this Court earlier, is a valid survey report.
I find merit in the submission of learned Standing Counsel that at least one boundary marks exists as has been admitted by counsel for the petitioner. This boundary marks is of plot no.270.
Since, no other boundary marks was found in the vicinity, the other two other boundary marks had been fixed and their location has been established after due measurement to be as per the existent revenue map. Thereafter by a process of trangulation from these three points measurements have been carried out, which reveal that the petitioner has encroached over an area of 0.057 hectares of plot no.509.
The objection of the petitioner is only with regard to selection of the fixed points and not to the measurement made on their basis. I do not find any illegality in the manner, in which, the survey has been conducted and two fixed points identified for carrying out the survey.
It has also not the case of the petitioner that what has been stated in the survey report that the measurements were initially carried out from an existing boundary marks on plot no.270 and after two other fixed points were identified, which upon measurement from the existent boundary mark were found to be in consonance with the existing revenue map and thereafter the measurements show that the petitioner has encroached upon portion of pot no.509.
I do not find any illegality in the survey report in view of what has been stated above. For the same reason, the petitioner is proved to have encroached over land of the Gaon Sabha from which, he has been ordered to be evicted.
Accordingly, I do not find any good ground to interfere in the impugned orders.
The writ petition for the reasons given above is without force and is dismissed.
Order Date :- 7.2.2020 RKM