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2023 DIGILAW 1864 (ALL)

Shatrohan v. State of U. P.

2023-08-03

SAURABH LAVANIA

body2023
JUDGMENT Saurabh Lavania, J. Heard Sri Alok Kr. Misra, learned counsel for the petitioner, Sri Hemant Kumar Pandey, learned counsel for the State as also Sri Dileep Kumar Pandey, learned counsel for the Gaon Sabha. 2. Under challenge is the order dated 29.11.2022 passed by the opposite party No.4-Assistant Collector/Tehsildar, Tehsil- Ikauna, District-Shrawasti, in the proceedings carried out against the petitioner under Section 67 of the U.P. Revenue Code, 2006 (in short "Code of 2006") which was registered as Case No.4255 of 2022, Computerized Case No.T202208620204255. 3. The petitioner has also challenged the order dated 19.01.2023 passed by the opposite party No.2-District Magistrate, District- Shrawasti, in the Appeal No.568 of 2022, Computerized Case No.D202208620000568 filed under Section 67(5) of the Code of 2006 and also the order dated 03.04.2023, whereby the application for restoration preferred by the petitioner for restoring the appeal decided vide order dated 19.01.2023, was rejected. 4. By the order dated 29.11.2022, the opposite party No.4 directed the revenue official to evict the petitioner from Gata No.780/0.065 Hect. (recorded as Naveen Parti) alleging that the petitioner is encroacher of 0.035 Hect. land of Gata No.780. 5. A challenge has been made to the impugned order(s) on the ground that the procedure, which ought to have been followed by the opposite party No.4 at the time of passing of final order in the proceedings instituted under Section 67(1) of the Code of 2006, was not followed. In continuation, it is stated that the procedure, which should be followed, has been indicated by this Court in the judgment dated 02.12.2022 passed in the bunch of petitions, leading of which, is Writ C No.6658 of 2022 (Rishipal Singh v. State of U.P. & 3 Others) reported in 2022 SCC Online All 829. A reference has been made to para 74 of the report of Rishipal Singh (Supra), which reads as under:- "74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. A reference has been made to para 74 of the report of Rishipal Singh (Supra), which reads as under:- "74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager: (i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis. (ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of subrule 1 Rule 67. (iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted along with RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above. (iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved. (v) In the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same along with the matter under Section 67, without requiring aggrieved party to move separate application under Section 67-A. (vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him. (vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner. (viii) In case of appeal under Section 67(5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed along with interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67-A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant. (ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation." 6. He stated that this Court in the judgment passed in Writ - C No.9500 of 2022 (Sharda Industries Thru. Partner Mayank v. The Additional District Collector, District Unnao And 2 Others); also observed that the report of Lekhpal should be proved and unproved report can not be relied upon. 7. It is also stated that a perusal of the impugned order(s) would show that without following the procedure as indicated by this Court in the judgment, referred above, the opposite party No.4 passed the order dated 29.11.2022, which was affirmed by the impugned order dated 19.01.2023. As such, the interference of this Court is required in the matter. 8. Learned counsel for the side opposite could not dispute the principle settled by this Court while dealing with the proceedings instituted under Section 67 of the Code of 2006. 9. Considered the submissions advanced by the learned counsel for the parties and the orders particularly the order dated 29.11.2022 passed by the opposite party No.4 and the order dated 19.01.2023 passed by the opposite party No.2. 10. 9. Considered the submissions advanced by the learned counsel for the parties and the orders particularly the order dated 29.11.2022 passed by the opposite party No.4 and the order dated 19.01.2023 passed by the opposite party No.2. 10. It is apparent from the impugned order dated 29.11.2022 that the procedure as indicated by this Court in the judgment, referred above, was not followed while deciding the case instituted under Section 67(1) of the Code of 2006 by opposite party No.4 affirmed by the opposite party No.2 vide order dated 19.01.2023, who also failed to take note of the fact that while passing the order dated 29.11.2022 the opposite party No.4 has not followed the procedure prescribed. Thus, to the view of this Court, the interference is required in the matter. 11. Accordingly, the petition is allowed. The order(s) dated 03.04.2023, 19.01.2023 and 29.11.2022 are set aside and the matter is remanded back to opposite party No.4-Assistant Collector/Tehsildar, Tehsil-Ikauna, District-Shrawasti to conclude the proceedings afresh strictly in terms of law laid down by this Court in the judgment, referred above, within a period of three months as statutory provisions says that the proceedings under Section 67 of the Code of 2006 ought to have been concluded within a period of 90 days. 12. For concluding the proceedings, the opposite party No.4 shall not provide any adjournment to the petitioner and in case, the petitioner fails to appear on the date fixed, then in that event, the authority concerned is at liberty to proceed ex-parte, however, in the light of the law laid down by this Court and conclude the proceedings within a period of three months. 13. At this stage, learned counsel for the petitioner as also other Members of Bar stated that despite specific direction issued by this Court in the judgment passed in the case of Rishipal Singh (Supra) and the observations made in the case of Sharda Industries (Supra), regarding proving of report of Lekhpal, the revenue authorities are not conducting the proceedings as per law declared by this Court. As such, some direction be issued to the concerned officials. 14. As such, some direction be issued to the concerned officials. 14. In the judgment passed in the case of Rishipal Singh (Supra), this Court has already observed that the Rules or Procedure deserve to be amended by the State Government by incorporating the guidelines framed by this Court, as appears from para 75 which on reproduction reads as under:- "75. India lives largely in villages and still by and large is an agregarian economy. The State of Uttar Pradesh is no exception. Accordingly, I may observe here that rules of procedure deserve to be suitably amended by the State Government incorporating above guidelines for leaving no scope for any arbitrariness that is seen largely as influencing the decision making process by the authority, may be for local village politics." 15. Considering the aforesaid, this Court is of the view that the Additional Chief Secretary, Department of Revenue, Civil Secretariat, Lucknow, U.P. be apprised on this aspect for the purposes of directing the Revenue Authorities under the Code of 2006 to conduct the proceedings under Section 67 of the Code of 2006 in the light of judgment(s), referred above, till the statutory provisions are not suitably amended by the State Government. 16. Accordingly, the Senior Registrar of this Court is directed to communicate this Order to Additional Chief Secretary, Department of Revenue, Civil Secretariat, Lucknow, U.P. for necessary compliance.