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2023 DIGILAW 546 (ALL)

Arun Kumar Agarwal v. State of U. P.

2023-02-23

CHANDRA KUMAR RAI

body2023
JUDGMENT : 1. Heard Mr. Arvind Srivastava Counsel for the petitioner and Mr. N.L. Pandey, learned Counsel assisted by Mr. K.C. Pandey, learned counsel for respondent No.4. 2. Brief facts of the case are that dispute relates to minjumla plot No. 165 total area 4.932 hectare situated in Village-Chakghambira, Pargana-Sakteshgarh, Tehsil-Chunar, District-Mirzapur. Petitioner purchased 0.759 hectare of plot No. 165M on 1.8.1998 through registered sale-deed executed by recorded tenure holder Gyan Singh and Awadh Narayan accordingly name of petitioner was recorded in the revenue records. Respondent No.4 has also purchased 0.7600 hectare area of plot No. 165M through registered sale-deed executed on 3.3.2017 by Mohammad Abdul Tahir as well as 0.5060 hectare area of plot No. 165 M through registered sale-deed executed on 4.3.2017 by Mangla Giri. Out of total area 4.932 hectare of plot No. 165 M 2.5290 hectare is reserved for forest department and 0.1780 hectare is reserved for rural forestry, the remaining area i.e. 2.2248 hectare belongs to petitioner, respondent No.4 as well as respondent Nos. 5 and 6, respondent No.4 filed an application under Section 24 of U.P. Revenue Code, 2006 on 13.10.2020 in respect to plot No. 165 M, the Sub-Divisional Magistrate vide order dated 2.2.2021 decided the application/ case under Section 24 of U.P. Revenue Code, 2006 filed by respondent No.4. Petitioner filed recall application to recall order dated 20.2.2021 which was allowed vide order dated 24.2.2021 setting aside the order dated 2.2.2021 and case under Section 24 of U.P. Revenue Code was restored to its original number. 3. Petitioner instituted a civil Suit No. 79 of 2021 for permanent prohibitory injunction impleading respondent No.4 as one of the defendant in which temporary injunction has been granted by Civil Court on 4.3.2021, the aforementioned civil suit is still pending between the parties before Civil Court. 4. On 30.6.2021, respondent No.4 filed an application under Section 30(2) of U.P. Revenue Code, 2006 read with Rule 26 of the U.P. Revenue Code Rules 2016 for division/ partition of Minjumla No. 165. On 18.11.2021 Lekhpal submitted proposal/ scheme as provided under Rule 26(3) of U.P. Revenue Code, Rules 2016. On 8.12.2021 notices were issued to the co-sharer including the petitioners as provided under Rule 26(7) of U.P. Revenue Code, Rules 2016. Petitioner filed his objection as provided under Rule 26(7) of U.P. Revenue Code, Rules 2016. On 18.11.2021 Lekhpal submitted proposal/ scheme as provided under Rule 26(3) of U.P. Revenue Code, Rules 2016. On 8.12.2021 notices were issued to the co-sharer including the petitioners as provided under Rule 26(7) of U.P. Revenue Code, Rules 2016. Petitioner filed his objection as provided under Rule 26(7) of U.P. Revenue Code, Rules 2016. Petitioner received a notice dated 17.01.2022 from the Court of Collector as provided under Rule 26(10) of U.P. Revenue Code, Rules 2016. In pursuance of the notice dated 17.01.2022, petitioner filed an application before Collector placing his objections on record and sought two months further time to file detailed objection as well as opportunity of hearing. According to petitioner the date on petitioner’s application dated 27.1.2022 was interpolated to 31.1.2022, Collector passed an order directing the parties to file written submissions before 7.2.2022. Petitioner filed another application before Collector for further time to file objections in the matter due to covid pandemic. Collector vide order dated 11.2.2022 confirmed the partition proposal submitted by Tahsildar, hence this writ petition. 5. This Court on 14.3.2022 has passed the following interim order:- “Heard Shri Naveen Sinha, learned Senior Counsel assisted by Shri Samsher Chandra Tripathi, learned counsel for the petitioner, learned Standing Counsel accepted notice on behalf of respondent nos. 1, 2, 3 and 8 and Shri Pradeep Singh, learned counsel accepted notice on behalf of respondent no.7. The petitioner has preferred the present petition inter-alia with the prayer to set aside the order dated 11.02.2022 passed by the Collector Mirzapur/respondent no. 2 in Suit No. 126 of 2022 (Shefali Kumar vs. State of U.P. & Others). It is argued by the counsel for the petitioner that the aforesaid order is in complete violation of Sub-rule 8 of Rule 26 of the U.P. Revenue Code Rules, 2016. Sub-rule 8 of Rule 26 of the U.P. Revenue Code Rules, 2016 is reproduced hereinbelow:- "(8) After receiving the objection in pursuance of the notice issued under sub-rule (7) or otherwise, the Revenue Inspector shall dispose of the objections on the basis of conciliation between the parties in consultation with the Village Revenue Committee." It is argued that the order could only be passed by the respondent no.2 after disposing of the objections and on the basis of conciliation between the parties. It is argued that the aforesaid exercise was not conducted by the respondent no. 2 while passing the aforesaid order. It is argued that the aforesaid exercise was not conducted by the respondent no. 2 while passing the aforesaid order. Matter requires consideration. Learned Standing Counsel accepted notice on behalf of respondent nos. 1, 2, 3 and 8 and Shri Pradeep Singh, learned counsel accepted notice on behalf of respondent no. 7. Issue notice to respondent nos. 4, 5 and 6. Steps be taken within a week. All the respondents are granted six weeks' time to file counter affidavit. Petitioner will have two weeks' thereafter to file rejoinder affidavit. List after the exchange of affidavits. Till the next date of listing, order dated 11.02.2022 passed by the respondent no. 2 namely Collector, Mirzapur shall remain stayed.” 6. In pursuance of the interim order dated 14.3.2022 respondent No.4 has filed her counter-affidavit. Petitioner has filed his rejoinder-affidavit also. The interim order dated 14.3.2022 was extended from time to time. 7. Counsel for the petitioner submitted that impugned order has been passed in gross violation of the principle of natural justice. He further submitted that Collector heard oral argument on behalf of respondent No.4 but he refused opportunity of oral argument to the petitioner. He further submitted that procedure prescribed under Rule 26(4) and 26(5) of U.P. Revenue Code, Rules 2016 has not been followed. Counsel for the petitioner placed Section 30(2) of U.P. Revenue Code, 2006 and Rule 26 of U.P. Revenue Code, Rules 2016 which are as follows:- Section 30(2) of U.P. Revenue Code 2006:- [(2) The minjumla number shall be divided physically in the manner prescribed and revenue records including map and khasra shall be corrected accordingly.] “Rule 26 of U.P. Revenue Code Rules 2016:- 26. Partition scheme of minzumla numbers [Section 30(2)].—(1) The Board shall, by general or special order direct the Collector that the minzumla numbers shall be divided physically and revenue records shall be corrected accordingly. (2) On the order under sub-rule (1) of this rule, the Collector shall get a partition scheme of minzumla numbers prepared for each village. (3) For the purpose of preparation of partition scheme of minzumla numbers, a provisional partition scheme of minzumla numbers shall be prepared by the Lekhpal in R.C. Form 5. (4) The provisional partition scheme of minzumla numbers shall be prepared by the Lekhpal in consultation with concerned tenure holders and Land Management Committee. (3) For the purpose of preparation of partition scheme of minzumla numbers, a provisional partition scheme of minzumla numbers shall be prepared by the Lekhpal in R.C. Form 5. (4) The provisional partition scheme of minzumla numbers shall be prepared by the Lekhpal in consultation with concerned tenure holders and Land Management Committee. (5) In the preparation of provisional partition scheme of minzumla numbers, the following principles shall be observed— (a) The portion allotted to each tenure holder shall be as compact as possible. (b) As far as possible no tenure holder shall be given all the inferior or all the superior classes of land. (c) If the tenure holders of minzumla number are in separate possession on the spot on the basis of mutual division, the same shall, as far as possible, be allotted as per the separate possession. (d) Every tenure holder shall, as far as possible, be allotted the area at the place on which his private source of irrigation or any other improvement is in existence. (e) If the plot or any part thereof, 2020 0 Supreme (All) 636 Mahipal Singh Versus Board of revenue and others is of commercial value or is adjacent to road, abadi or other land of commercial value, the same shall, as far as possible, be allotted to each tenure holder proportionately adjacent to such road, abadi or other land of commercial value. (6) The Lekhpal shall prepare and place on record a map showing in different colours, the area given to each tenure holder. (7) After preparation of provisional partition scheme of minzumla numbers a notice in R.C. Form 6 shall be issued to each tenure holder of the minzumla number inviting objection, if any, within the period of 15 days from the date of service of the notice on the tenure holder. (8) After receiving the objection in pursuance of the notice issued under sub-rule (7) or otherwise, the Revenue Inspector shall dispose of the objections on the basis of conciliation between the parties in consultation with the Village Revenue Committee. (9) All the objections which have not been decided by the Revenue Inspector on the basis of conciliation shall be forwarded along with the provisional partition scheme to the Collector through the Sub-Divisional Officer. (9) All the objections which have not been decided by the Revenue Inspector on the basis of conciliation shall be forwarded along with the provisional partition scheme to the Collector through the Sub-Divisional Officer. (10) The Collector after affording opportunity of hearing to the parties concerned shall decide the objection, if any, and thereafter either confirm the provisional partition scheme of minzumla numbers or pass such order as he deems fit. (11) The map, khasra and khatauni shall be corrected as per the confirmed partition scheme of minzumla numbers. (12) Any order passed under this rule shall, subject to the revision under Section 210 of the Code, be final.” 8. Counsel for the petitioner further submitted that petitioner had been in possession of his plot since the date of execution of sale-deed in his favour i.e. 1.8.1998 without any interference but impugned order dated 11.2.2022 has been passed resulting into interference with the possession of the petitioner. He further submitted that although remedy of revision under Section 210 of U.P. Revenue Code, Rules 2016 is available to petitioner against impugned order as provided under Rule 26(12) of U.P. Revenue Code, Rules 2016 but the impugned order dated 11.2.2022 has been passed in violation of principle of natural justice as well as pleading are exchanged between the parties, as such, writ petition filed by petitioner on 2.3.2022 be heard and disposed of on merit. 9. Counsel for the petitioner placed following case law on the point of alternative remedy : (i) (2003) 2 SCC 107 Harbans Lal Vs. Indian Oil Corporation Ltd. (ii) (2001) 10 SCC 740 State of Tripura Vs. Manoranjan Chakraborty. (iii) (2007) 9 SCC 593 Popcorn Entertainment Vs. City Industrial Development Corporation. (iv) (2011) 5 SCC 697 Union of India Vs. Tantia Construction (P) Ltd. (v) (2013) 5 ADJ 691 (DB) Dhani Ram Vs. Project Betwa River Board. 10. Counsel for the petitioner submitted that impugned order be set aside and matter be remanded back before Collector to decide the case under Section 30(2) of U.P. Revenue Code, 2006 on merit after affording opportunity of hearing to petitioner. 11. In reply, learned Counsel for respondent No.4 submitted that respondent No.4 has filed a caveat before this Hon’ble Court on 24.02.2022 against the impugned order dated 11.2.2022 but caveat has not been reported and interim order has been granted in ex-parte manner. 11. In reply, learned Counsel for respondent No.4 submitted that respondent No.4 has filed a caveat before this Hon’ble Court on 24.02.2022 against the impugned order dated 11.2.2022 but caveat has not been reported and interim order has been granted in ex-parte manner. He further submitted that petitioner has not constructed any boundary in the disputed plot wall rather a small room has been constructed in the northern side of the plot. He further submitted that in suit No. 79 of 2021, it has been clarified that Revenue Court is free to take decision in the light of the provisions contained under Rule 26 of U.P. Revenue Code, Rules 2016 as well as U.P. Revenue Code, 2006, the Civil Court has also clarified that status quo will be applicable to parties to the suit. He further submitted proceeding under Section 30(2) of U.P. Revenue Code, 2006 has been initiated by respondent No.4 in accordance with the provisions of the Code and Rules framed thereunder. He further submitted that after issuance of the R.C. Form 6 as provided under Rule 26 of U.P. Revenue Code, Rules 2016 petitioner filed his objection. He further submitted that after compliance of the Rule 26(8) of the U.P. Revenue Code, Rules 2016 the order dated 28.12.2021 has been passed by Revenue Inspector, the procedure of Rule 26(9) of U.P. Revenue Code Rules 2016 was followed and report has been sent to the Sub-Divisional Magistrate. Learned Counsel has placed the report/ order dated 28.12.2021 which has been annexed as Annexure No. C-A2 to the counter-affidavit, the report/ order dated 28.12.2021 is as follows:- 12. Counsel for the respondent No.4 submitted that each and every provision of Rule 26 of U.P. Revenue Code, Rules 2016 have been followed, as such, no interference is required against the impugned order. 13. I have considered the argument advanced by learned Counsel for the parties and perused the record. 14. There is no dispute about the fact that respondent No.4 initiated proceeding under Section 30(2) of U.P. Revenue Code, 2006 for partition of minjumla plot No. 165 which has been decided vide order dated 11.2.2022 on the basis of Tahasil report for partition. I have considered the argument advanced by learned Counsel for the parties and perused the record. 14. There is no dispute about the fact that respondent No.4 initiated proceeding under Section 30(2) of U.P. Revenue Code, 2006 for partition of minjumla plot No. 165 which has been decided vide order dated 11.2.2022 on the basis of Tahasil report for partition. There is also no dispute about the fact that petitioner has not availed the alternative remedy of appeal and challenged the order impugned before this Court on the ground of violation of natural justice as well as violation of provisions of Rule 26 of U.P. Revenue Code, Rules 2016 although according to Counsel for respondent No.4 principle of natural justice has been followed and provisions of Rules 26 of U.P. Revenue Code Rules 2016 have been also complied with. 15. Since the pleadings are exchanged between the parties, as such, in view of ratio of law laid down by Apex Court in the judgment as mentioned above as well as referred by Counsel for the petitioner, the interest of justice requires that writ petition filed by petitioner be heard and disposed of on merit accordingly Court is deciding the instant writ petition on merit. 16. The perusal of record reveals that proceeding under Section 30(2) of U.P. Revenue Code, 2006 was conducted following the each and every provisions of Rule 26 of U.P. Revenue Code 2016. In order to appreciate the compliance of the provisions of Rule 26 of U.P. Revenue Code, Rules 2016, the report dated 6.1.2022 submitted by Upziladhikari Chunar Before District Magistrate Mirzapur will be relevant which is as follows:- 17. The above mentioned report dated 6.1.2022 fully demonstrate that each and every provisions contained under Rule 26 of U.P. Revenue Code, Rules 2016 has been followed regarding notice, opportunity, mediation and reference to District Magistrate, as such, the argument advanced by learned Counsel for petitioner that provisions of Rule 26 of U.P. Revenue Code Rules 2016 are not followed is misconceived. 18. So far as opportunity of hearing to petitioner is concern it is material that petitioner has filed objection before the District Magistrate and also praying for time to file detailed objection on one ground or other which proves that petitioner was interested to linger on the proceedings. 18. So far as opportunity of hearing to petitioner is concern it is material that petitioner has filed objection before the District Magistrate and also praying for time to file detailed objection on one ground or other which proves that petitioner was interested to linger on the proceedings. The argument advanced by learned Counsel for the petitioner on the point of opportunity of hearing also cannot be accepted. 19. Considering the entire facts and circumstances, no interference is required against the impugned order dated 11.2.2022 passed by respondent No.2 under Section 30(2) of U.P. Revenue Code, 2006. 20. The writ petition is dismissed. 21. No order as to costs.