Allahabad High Court
Shankar Sharan Singh vs State Of U.P. And 3 Others on 7 November, 2022
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?In Chamber Case :- WRIT - C No. - 33778 of 2022 Petitioner :- Shankar Sharan Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vijay Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
Heard Shri Vijay Pratap Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents no.1 to 3.
The petitioner has preferred present writ petition inter-alia with the prayer to quash the notice dated 21.10.2022 issued by respondent no.3/Tehsildar, Tehsil-Soraon, District Prayagraj. Further prayer has been made to direct the respondent no.2/District Magistrate/Chief Revenue Officer, District Allahabad now Prayagraj to decide the restoration application dated 10.08.2022 filed by the petitioner being Case No.2401 of 2022 (Computerized No.D202202030002401) (Shankar Sharan Singh Vs. State of U.P. and another).
The facts in brief as contained in the writ petition are that Khata No.540 area 0.0110 hectare situated in Village Madari, Tehsil-Soraon, District Allahabad (now Prayagraj) is recorded as chakmarg in the revenue records. The petitioner and before him his forefathers were residing in the same by constructing the pakka house. Proceedings under Section 67 of the U.P. Revenue Code, 2006 was initiated against the petitioner. In the aforesaid proceedings an order dated 09.10.2018 was passed against him by the respondent no.3 namely Tehsildar, Tehsil-Soraon, District Prayagraj by which the petitioner was directed to forthwith vacant the possession of the same and penalty of Rs.19,000/- was also imposed.
It is argued by the counsel for the petitioner that the aforesaid order was passed in ex-party manner and when the petitioner came to know regarding the aforesaid order, immediately, an appeal as provided under sub Section 5 of Section 67 of the U.P. Revenue Code, 2006, which was filed by him before the respondent no.2/District Magistrate/Chief Revenue Officer, District Allahabad. In the said appeal 22.07.2022 was dated fixed for hearing. It is further argued that due to personal difficulty nobody was present on the said date before the respondent no.2 but wholly illegally by giving a wrong findings that the counsel for the petitioner was present appeal was rejected. Immediately thereafter, a recall application was filed by the petitioner before the respondent no.2 on 10.08.2022 supported by an affidavit. It is argued that on the basis of the questionnaire that the next date fixed in the aforesaid restoration application for hearing is 14.11.2022 (page 41 of the paper book) but without taking into consideration the fact that 14.11.2022 is the date fixed for hearing on the restoration application, the notice dated 21.10.2022 was issued by the respondent no.3 to the petitioner directing him to remove his possession from the plot in dispute on or before 25.10.2022 at 12.00 noon. It is further argued that wholly illegally respondent no.3 along-with police force has visited the house of the petitioner on 05.11.2022 at 4.00 P.M. in order to demolish the same. When the petitioner informed regarding pendency of the restoration application with great difficulty they went away by saying that they will again come to demolish the house on 08.11.2022.
In this view of the matter it is argued that the matter should be heard during vacation and interim protection be also granted.
On the other hand it is argued by Shri Vijay Shankar, learned Standing Counsel appearing on behalf of respondent-State that inspite of the fact that the proceedings were initiated against the petitioner under Section 67 of the U.P. Revenue Code, 2006 nobody was present neither before the respondent no.3 where the proceedings were initiated nor before the respondent no.2 in the appeal filed by the petitioner. It is further argued that since illegal possession of the petitioner was found on the spot the order of eviction was rightly passed by the authorities, which does not call for any interference of this Court specially under Article 226 of the Constitution of India.
Heard learned counsel for the parties and perused the record.
From perusal of the record it transpires that in the appeal filed by the petitioner before the respondent no.2 being appeal no.2401/2022 an order was passed by him on 22.07.2022 dismissing the appeal filed by the petitioner. The appeal filed by the petitioner is statutory in nature and the same was filed in view of the provisions of sub Section (5) of Section 67 of the U.P. Revenue Code, 2006.
It is settled law that in case statutory appeal is filed, appellate authority is duty bound to decide the same by giving reasons. From perusal of the order dated 22.07.2022, Court is of the opinion that the said order is absolutely non speaking order. No reasons whatsoever has been assigned by the respondent no.2 while dismissing the appeal. Further once an restoration application was filed in which next date fixed is 14.11.2022, the respondent no.3 has no power or jurisdiction to issue such kind of notice.
Considering the facts and circumstances of the case, with the consent of counsel for the parties present, the present petition stands disposed of finally with a direction to the respondent no.2/District Magistrate/Chief Revenue Officer, District Allahabad now Prayagraj to pass appropriate orders on the recall application filed by the petitioner in his pending appeal as stated above, in accordance with law, on the next date fixed in the matter, i.e., 14.11.2022 after hearing all the parties concerned. If on account of any reason no orders were passed on the aforesaid date, the decision will be taken on the aforesaid application preferably within a period of six weeks, thereafter.
Till 31.01.2023 no coercive action be taken against the petitioner.
Shri Vijay Shankar, learned Standing Counsel is directed to inform regarding the order passed today to the District Magistrate, Prayagraj today itself for onward transmission.
Order Date :- 7.11.2022 Pramod Tripathi