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2020 DIGILAW 359 (ALL)

Salar Baksh v. Collector, Bahraich

2020-02-03

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. Heard learned Counsel for the petitioner. 2. The petitioner is aggrieved by the order dated 28.11.2019 passed by the Collector, District Bahraich and the order dated 17.3.2018 as well as order dated 3.8.2015 passed by the Tehsildar, Nanpara, District Bahraich. 3. It is the case of the petitioner that his house is constructed on plot No 523 of village Bhahorikapur, Pargana and Tehsil-Nanpara, District Bahraich. Towards the west of such plot, there is a road on plot No. 542 Min. area 1.305 hectares. Proceedings were initiated after the report under the Rules framed under the U.P. Z.A. & L.R. Act was submitted by the area Lekhpal. In the said proceedings under section 122-B of the Act, it was wrongly alleged that the petitioner had encroached 0.016 hectare of the road situated on plot No. 542 Min. The petitioner denied the report dated 1.6.1998 in his reply to the show-cause notice and on 13.12.1999, the Assistant Collector/Tehsildar Nanpara remitted the file to the Revenue Inspector to enquire into the matter and submit a report with regard to the petitioner's allegation that several other persons and not the petitioner had encroached the public rasta. 4. The Lekhpal submitted his report on 24.2.2006 again alleging that the petitioner's house was built on the land in dispute i.e. plot No. 542. On the basis of such report, an ex parte order was passed on 3.8.2015 directing the petitioner to remove his encroachment from plot No. 540 and imposing the penalty of ` 15,000/- for damages to the Gaon Sabha property. The petitioner moved an application on 2.2.2016 for recalling of the ex parte order. On 17.3.2018, the recall application was rejected ex parte again. The petitioner preferred an Appeal along with the application under section 5 of the Limitation Act before the Collector, which was dismissed on 28.11.2019. Aggrieved by the orders, the petitioner has filed this writ petition. 5. Learned Standing Counsel on the basis of the orders impugned has pointed out that initially the area Lekhpal had submitted the report on 1.6.1998. The petitioner having encroached upon the land of rasta has been able to continue with his unauthorized occupation for the past more than 20 years. 5. Learned Standing Counsel on the basis of the orders impugned has pointed out that initially the area Lekhpal had submitted the report on 1.6.1998. The petitioner having encroached upon the land of rasta has been able to continue with his unauthorized occupation for the past more than 20 years. No doubt, there was an order dated 13.12.1999 by the Tehsildar, Nanpara directing the Revenue Inspector and the Lekhpal to submit another report, however another report was in-deed submitted on 21.4.2006 containing the same allegation of the petitioner encroaching upon 0.016 hectare of plot No. 542 admeasuring 1.305 hectare. The orders impugned are not ex parte as the petitioner had initially appeared in the proceedings under section 122-B and filed his reply and his Advocate was also heard. Thereafter, the petitioner's Advocate chose not to appear. The matter being old and instituted under section 122-B of the U.P. Z.A. & L.R. Act, no Appeal was maintainable against the orders under section 67 of the U.P. Revenue Code, 2006. The petitioner ought to have filed a Revision against the order passed by the Tehsildar. 6. This Court has considered the orders impugned. It finds therefrom that the initial order passed against the petitioner is not ex parte as the petitioner has appeared and participated in the proceedings. However, after the second report dated 21.4.2006 was submitted, the petitioner chose not to appear and therefore, the order impugned was passed. No evidence has been submitted by the petitioner to show that his house is situated on plot No. 523 which belongs to him and not on plot No. 542 Min. i.e. public rasta. 7. It is the case of the petitioner that similarly situated persons who have encroached upon the land of public rasta has not been proceeded against and the authorities have adopted pick and choose method. 8. The petitioner's house may have been situated initially on plot No. 523 i.e. his own plot but he has thereafter made some constructions admeasuring 0.016 hectares on the land of public rasta also. This Court cannot appreciate the petitioner's argument that several other persons who have constructed their house over the public rasta have not been proceeded against. There can be no parity sought in illegal or irregular action. Article 14 is a concept and does not envisage negative parity. 9. This Court cannot appreciate the petitioner's argument that several other persons who have constructed their house over the public rasta have not been proceeded against. There can be no parity sought in illegal or irregular action. Article 14 is a concept and does not envisage negative parity. 9. This Court having perused the orders impugned is satisfied that the petitioner has sufficient opportunity, yet he failed to submit any evidence that he had not encroached upon the land of plot No. 542 i.e. public rasta. 10. This petition is dismissed. No order as to costs. 11. Since the petition has been dismissed, the petitioner shall forthwith remove all encroachment from public rasta.