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2024 DIGILAW 1652 (ALL)

Saudagar Rajbhar v. State Of U. P.

2024-07-09

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : Ashutosh Srivastava, J. 1. Heard Shri Rohit Kumar Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the State Respondents Nos. 1 to 3. Shri Bhupendra Kumar Tripathi, learned counsel, who has put in appearance for the Respondent No. 4. 2. The instant writ petition arises out of proceedings undertaken under Section 67 of the U.P. Revenue Code, 2006 and is directed against the order dated 30.01.2024 passed by the Respondent No. 2, Additional District Magistrate (Finance & Revenue)/Additional Collector, Ghazipur in Restoration Application in Case No. 72 of 2024 (Saudagar Vs. Gaon Sabha), under Section 67(5) of the U.P. Revenue Code, 2006 and order dated 05.01.2024 passed by the Respondent No. 3, Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil Mohammadabad, District Ghazipur in Case No. 1707 of 2023 (Saudagar Vs. Gaon Sabhad and Others), under Section 67 (5) of U.P. Revenue Code, 2006 as well as order dated 19.05.2022 passed by Respondent No. 3, Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil Mohammadabad, Ghazipur in Case No. 4549 of 2021 (Gaon Sabha Vs. Saudagar), under Section 67 of U.P. Revenue Code, 2006. 3. It is the case of the petitioner that petitioner had constructed house in the year 1985 in the small area of Gata No. 399/0.005 hectare situated at Village Nevada, Pargana Zahurabad, Tehsil Mohammadabad, District Ghazipur and his family is residing in the said house. No notice was ever served to the petitioner and ex-parte order of eviction was passed. The statement of the concerned Lekhpal was recorded on 06.05.2022 wherein he has stated that the Gata No. 399 area 0.1260 hectare was register in the revenue record as "Jungle" land. The Tehsildar (Judicial) Mohammadabad, Ghazipur vide order dated 19.05.2022 passed the order of eviction and also imposed penalty to the tune of Rs.4100/-. Against the said order, the petitioner had filed the restoration application along with Section 5 of Limitation Act for recalling of the ex-parte order dated 19.05.2022, which was also rejected. 4. Being aggrieved the petitioner filed appeal being Appeal No. 1707 of 2023 (Saudagar Vs. Gaon Sabha) under Section 67(5) of the U.P. Revenue Code, 2006 before the Respondent No. 2, which was also dismissed. A specific ground to this effect was taken by the petitioner in the Appeal under Section 67 (5) but the same has not been adverted to. Being aggrieved the petitioner filed appeal being Appeal No. 1707 of 2023 (Saudagar Vs. Gaon Sabha) under Section 67(5) of the U.P. Revenue Code, 2006 before the Respondent No. 2, which was also dismissed. A specific ground to this effect was taken by the petitioner in the Appeal under Section 67 (5) but the same has not been adverted to. It is also alleged that the Lekhpal concerned has submitted a false report which was relied upon by the Assistant Collector-1st/Tehsildar, Tehsil Mohammadabad District Ghazipur and a request to examine the Lekhpal was allegedly turned down. It is contended that both the Assistant Collector-1st/Tehsildar and the Appellate Authority have not assigned any reasons for passing the orders impugned and the procedure as contemplated under Section 67 have not been followed by the Authorities. It is thus submitted that the impugned orders are liable to be set aside and the writ petition allowed. 5. Learned counsel for the State respondents and Gaon Sabha have supported the order impugned and submit that the authorities have recorded the findings of facts which call for no interference in writ proceedings and no relief can be granted to the petitioner. 6. I have heard the learned counsel for the parties and have perused the records. Admittedly the order passed by the Assistant Collector-1st/Tehsildar under Section 67 of the Code, 2006 is ex-parte. The petitioner took specific grounds in the Appeal under Section 67 (5). Prima facie, the Court finds that the grounds as raised in the Appeal has not been adverted to by the Appellate Authority while dealing with the Appeal. 7. The manner and the method in which spot inspection is to be conducted, reports prepared and the procedure to be adopted by the Revenue Authorities in exercise of powers conferred under Section 67 of the U.P. Revenue Code 2006 came up for consideration before a coordinate Bench of this Court in the case of Rishipal Singh vs. State of U.P. and 3 others (Writ C No. 6658 of 2022) decided on 2.12.2022, reported in 2023 (1) ADJ 154 . The Coordinate Bench after considering all aspects of the matter in para 74 of the judgment culled out the guidelines to be adopted as procedure to be applied to proceedings under Section 67, 67A and 26 of the UP Revenue Code for ensuring transparency in the procedure, judiciousness in approach and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing unnecessary harassment to an innocent villager. The guidelines enumerated are as under: (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 alongwith 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 alongwith 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 alongwith 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. 8. Prima-facie, the Court is of the opinion that the guidelines enumerated have not been followed by the Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil Mohammadabad, Ghazipur and Additional District Magistrate (Finance & Revenue)/ Additional Collector, Ghazipur while exercising powers under Section 67 and 67 (5) of the UP Revenue Code, 2006. 9. In view of the above, the impugned the order dated 30.01.2024 passed by the Respondent No. 2, Additional District Magistrate (Finance & Revenue)/Additional Collector, Ghazipur in Restoration Application in Case No. 72 of 2024 (Saudagar Vs. Gaon Sabha), under Section 67(5) of the U.P. Revenue Code, 2006 and order dated 05.01.2024 passed by the Respondent No. 3,Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil Mohammadabad, District Ghazipur in Case No. 1707 of 2023 (Saudagar Vs. Gaon Sabhad and Others), under Section 67 (5) of U.P. Revenue Code, 2006 as well as order dated 19.05.2022 passed by Respondent No. 3, Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil Mohammadabad, Ghazipur in Case No. 4549 of 2021 (Gaon Sabha Vs. Saudagar), under Section 67 of U.P. Revenue Code, 2006 are hereby set aside. 10. The writ petition stands allowed. 11. Saudagar), under Section 67 of U.P. Revenue Code, 2006 are hereby set aside. 10. The writ petition stands allowed. 11. The matter is remitted to the Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil Mohammadabad, District Ghazipur, to decide the same afresh in the light of the observations and guidelines made in the decision of this Court in the case of Rishipal Singh, (Supra), expeditiously.