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2019 DIGILAW 2360 (ALL)

Hori Lal v. State of U. P.

2019-10-17

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Narendra Bhushan Nigam, learned Counsel for the petitioners and Shri Deepak Kashinath Dubey for the caveator, respondent No. 4. 2. The writ petition arises out of proceedings under section 26 of the U.P. Revenue Code, 2006 initiated by the respondents for removal of the constructions over a rasta and seeks a writ of certiorari for quashing the order dated 23.6.2018 passed by the Tehsildar, respondent No. 3 directing removal of encroachment by petitioner with the help of police force and the order dated 19.6.2019 passed by the Sub Divisional Magistrate, Mariyahu, respondent No. 2, whereby the consequential revision filed by the petitioner has been rejected. 3. Assailing the impugned orders, the contention of Counsel for the petitioners is that the land regarding which, proceedings for removal of obstructions was initiated, is land which was allotted to the petitioners during the consolidation operations being plot No. 256. It is also contended that a Civil Suit with regard to this land is pending consideration. 4. It is next submitted that the Re-visional Court made a spot inspection and recorded the statements of several persons behind the back of the petitioners. 5. Thereafter, the revision has been dismissed without affording any further opportunity of hearing to the petitioners. No such jurisdiction is vested in the Revisional Court. 6. It has lastly submitted that the respondents have raised constructions over the entire area of their land are now seeking a rasta over the land of the petitioners. In any case, it is not the case of the respondents that any public pathway exists, which have been encroached or obstructed. 7. Counsel appearing for the caveator respondent has supported the impugned orders. 8. I have considered the submissions made by Counsel for the parties and perused the record. 9. The proceedings under section 26 of the U.P. Revenue Code, 2006 were initiated by the Tehsildar consequent to the directions issued by the Writ Court vide order dated 9.1.2018 passed in Writ Petition No. 723 of 2018. 10. The Tehsildar has recorded a finding that a chak road exist on plot No. 75 and to approach it, the applicants and other persons have established a 8 feet wide gate for wide rasta on the northern end of his bhumidhari plot No. 86, which rasta had been blocked by the petitioners by placing nad, khunta and bricks. 11. 10. The Tehsildar has recorded a finding that a chak road exist on plot No. 75 and to approach it, the applicants and other persons have established a 8 feet wide gate for wide rasta on the northern end of his bhumidhari plot No. 86, which rasta had been blocked by the petitioners by placing nad, khunta and bricks. 11. The Tehsildar further after spot inspection found that apart from this rasta, there is no other manner of approaching the chak road on plot No. 75. He accordingly directed removal of the encroachment/obstructions vide order dated 23.4.2018 with the use of police force. 12. Even the Revisional Court has observed that the rasta which has been obstructed by the petitioners exists in plot No. 86. 13. It is no doubt true that the Revisional Court has also observed that it had made a spot inspection and also recorded the statements of 12 persons of the village, thereafter on the spot, there is nothing in the impugned order to indicate that after the spot inspection and after having recorded the statements of the villagers, the petitioners were afforded any opportunity of hearing. 14. In my considered opinion, if such evidence of these 12 persons was the sole basis of the revisional order, the revisional order was necessarily required to be interfered with. However, the revision has been dismissed relying also upon the reports filed by the revenue inspector and the Lekhpal. 15. Under the circumstances, the impugned revisional order cannot be said to be completely vitiated. It may at be the said to be irregular because after recording evidence of third parties, during spot inspection, no further opportunity of hearing was provided to the petitioners. This is so because, the oral testimony recorded on the spot, referred to above, has only corroborated the reports of the Lekhpal and the revenue inspector. 16. The contention of Counsel for the petitioners is that the rasta allegedly blocked, exists on his bhumidhari plot No. 256, is contrary to the categorical findings returned by the Revisional Court, which are to the effect that the rasta exists on the northern portion of plot No. 86. 17. It is settled law that this Court while exercising jurisdiction under Article 226 of the Constitution of India is not competent to enter into a factual dispute. 17. It is settled law that this Court while exercising jurisdiction under Article 226 of the Constitution of India is not competent to enter into a factual dispute. The argument raised on behalf of the petitioners raises precisely such a factual dispute and therefore, this Court does not find it a fit case for interference. 18. This Court is refusing to interfere also because admittedly a civil suit is stated to be pending consideration before the competent Court. 19. Even otherwise, the orders passed under sections 26 and 27 of the U.P. Revenue Code, 2006 are subject to the orders passed in a civil suit as provided by section 28, itself. 20. Since, the dispute is admittedly pending consideration before the Civil Court, the orders impugned shall necessarily have to abide by the final decision of the Civil Court. 21. Subject to the above observations, this writ petition fails and is dismissed.