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2024 DIGILAW 1700 (ALL)

Brij Kumar v. State Of U. P.

2024-07-19

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : (Ashutosh Srivastava, J.) 1. Heard Shri Kunal Shah, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Shri Azad Rai, learned counsel for the respondent No. 7, the Land Management Committee concerned. Shri Sanjeev Kumar Tyagi, learned counsel has put in appearance on behalf of the private respondent No. 8. 2. The writ petition arises out of proceedings under Section 24 of the U.P. Revenue Code, 2006 and has been filed questioning the legality, propriety and correctness of the order dated 15.4.2024 passed by the Board of Revenue U.P. at Allahabad in Revision under Section 210 of the Revenue Code, 2006, order dated 14.3.2024 passed by the Commissioner, Prayagraj Division, Prayagraj in Appeal No. 00177 of 2021, under Section 24 (4) of the U.P. Revenue Code, 2006 as also the order dated 8.2.2021 passed by the Addl. Sub Divisional Magistrate, Tehsil Sadar, District Prayagraj in Case No. 06288 of 2020 under Section 24 of the U.P. Revenue Code, 2006. 3. By the order dated 8.2.2021 passed by the Sub Divisional Magistrate, Sadar, District Prayagraj in Case No. 06288 of 2020 under Section 24 of the U.P. Revenue Code, 2006, the objections preferred by the petitioner to the exparte demarcation report of the Revenue Inspector/respondent No. 6 was rejected and the demarcation report was confirmed. By the order dated 14.3.2024, the appeal preferred by the petitioner under Section 24 (4) of the Revenue Code, 2006 has been rejected. By the order dated 15.4.2024, the Board of Revenue has proceeded to reject the revision preferred by the petitioner under Section 210 of the Revenue Code, 2006. 4. It is the case of the writ petitioner that his father along with others was the recorded tenure holder/Bhumidhar of Plot No. 122 area 0.5450 hectares situate in village Dadanpur, Tehsil Sadar, District Prayagraj. Subsequent to the death of his father in the year 2018, the petitioner succeeded to the share of his father in the aforesaid plot No. 122. The plot No. 122 is adjacent and contiguous to plot No. 123 area 0.610 hectare belonging to the respondent No. 8 and other tenure holders. The respondent No. 8 initiated proceedings for demarcation and fixation of boundaries of his Plot No. 123 before the Sub Divisional Magistrate, Tehsil Sadar, District Prayagraj under Section 24 of the U.P. Revenue Code, 2006. The plot No. 122 is adjacent and contiguous to plot No. 123 area 0.610 hectare belonging to the respondent No. 8 and other tenure holders. The respondent No. 8 initiated proceedings for demarcation and fixation of boundaries of his Plot No. 123 before the Sub Divisional Magistrate, Tehsil Sadar, District Prayagraj under Section 24 of the U.P. Revenue Code, 2006. The petitioner was not made a party to the proceedings under Section 24 in violation of the sub Rule 1 of Rule 22 of the U.P. Revenue Code Rules, 2016. The Sub Divisional Magistrate/respondent No. 4 called for a report vide order dated 27.7.2020 from the respondent No. 6/Revenue Inspector. The respondent No. 6 carried out an exparte inspection and demarcation exercise relating to Plot No. 123. In the report submitted on 14.8.2020, it was stated that inspection was conducted on the spot after issuing the notices to the concerned parties. 5. Learned counsel for the petitioner vehemently submitted that no notice was issued to the petitioner or his father whose name stood recorded in the relevant records even after his death by virtue of being a tenure holder of the adjacent and contiguous Plot No. 122 and thus, a necessary party and the exercise of demarcation and inspection was carried out without intimating the petitioner of the date of inspection and demarcation which was in violation of Sub Rule 7, 8 & 9 of Rule 22 of the 2016 Rules. Besides, it is submitted that the assertion in the spot inspection memo that notices were given to all the affected parties prior to inspection is ex-facie illegal and incorrect inasmuch as, there is no mention of the name of the father of the petitioner or the petitioner for that matter and the names of one Sonu Singh, Dhussa, Suraj and Shyamkali are mentioned who are not the tenure holders of Gata No. 122 and have no interest in the said gata. The respondent No. 6 thereafter submitted a demarcation report on 17.8.2020, taking a chak road abutting the plot No. 125 as the fixed point in clear violation of the decision of this Court in the case of Ramawati Charitable Trust Vs. State of UP, Civil Misc. Writ Petition No. 25925 of 2016 wherein it has been held that a Chak road or a road can never be taken as a fixed point. State of UP, Civil Misc. Writ Petition No. 25925 of 2016 wherein it has been held that a Chak road or a road can never be taken as a fixed point. It is thus submitted that the Demarcation Report dated 17.08.2020 was patently illegal. 6. It is next contended by the learned counsel for the petitioner that on 06.11.2020 the petitioner came to know of the proceedings under Section 24 of the Code, 2006 when the respondent no. 4 issued the notices in the name of the deceased father of the petitioner. On the inspection of the records the petitioner learnt about the ex-parte inspection and demarcation exercise dated 14.08.2020. The petitioner also learnt about another ex-parte report dated 02.11.2020 of the respondent no. 6 which was submitted to the respondent no. 4 based upon a spot inspection stated to have been carried out on 28.10.2020. The petitioner filed his objections to the demarcation application of the respondent no. 8 as also to the demarcation report submitted by the respondent no. 6 primarily on the following grounds: "(i) No notices were ever issued by the Respondent No. 6 to the Petitioner or other co-tenure holders of Plot No. 122 before carrying out the inspection and demarcation proceedings on 14.08.2020. (ii) At the site in question there was no fixed point available and as such the demarcation of Plot No. 122 by Respondent No. 6 having not been done from fixed points could not be confirmed. (iii) Large scale constructions had been carried out over Plot No. 123 and thus the nature of the land had been changed, as such demarcation could not be carried out. (iv) Since the Petitioner had filed Application for correction of map as regards Plot No. 122, a request was made by the Petitioner that the Respondent No. 4 may defer the proceedings of demarcation till the time the correction of the map proceedings were finalized." 7. The respondent no. 4 without considering the objections of the petitioner and without returning any finding in respect thereof passed the impugned order dated 08.02.2021 and confirmed the demarcation report prepared by the respondent no. 6. 8. Aggrieved by the order dated 08.02.2021 passed by the respondent no. 4 preferred an Appeal under Section 24 (4) of the Revenue Code, 2006 before the respondent no. 6. 8. Aggrieved by the order dated 08.02.2021 passed by the respondent no. 4 preferred an Appeal under Section 24 (4) of the Revenue Code, 2006 before the respondent no. 6 specifically raising the following grounds inter-alia: "(i) Despite the categorical objection of the Petitioner that neither he nor other co-tenure holders of Plot No. 122 were made party to the demarcation proceedings instituted by the Respondent No. 8, nor notices were issued to the Petitioner or other co-tenure holders of Plot No. 122 regarding demarcation which was carried out behind his back on 14.08.2020, the Respondent No. 4 did not advert to the said objection of the Petitioner and returned no finding in the said regard. (ii) The Respondent No. 4 erred in not considering the objection of the Petitioner that there was no fixed point available and as such the demarcation of Plot No. 122 by Respondent No. 6 having not been done from fixed points could not be confirmed. (iii) The Respondent No. 4 did not return any finding to the objection of the Petitioner that in light of the fact that large scale constructions had been carried out over Plot No. 123, the nature of the land had been changed, and as such no demarcation could not be carried out. (iv) The Respondent No. 4 also did not render any finding as regards the contention of the Petitioner that the demarcation proceedings ought to have been deferred in view of the fact, that the Petitioner had applied for correction of map. (v) The Respondent No. 4 erred in law in confirming the demarcation report prepared by Respondent No. 6, without even subjecting him to examination." 9. It is contended that the respondent no. 3 without adverting to the grounds raised by the petitioner in the Appeal, the respondent no. 3 rejected the Appeal vide order dated 14.03.2024. 10. Aggrieved, the petitioner filed a Revision under Section 210 of the UP Revenue Code, 2006 assailing the order dated 14.03.2024 which too has been erroneously rejected vide the impugned order dated 15.04.2024. 11. 3 without adverting to the grounds raised by the petitioner in the Appeal, the respondent no. 3 rejected the Appeal vide order dated 14.03.2024. 10. Aggrieved, the petitioner filed a Revision under Section 210 of the UP Revenue Code, 2006 assailing the order dated 14.03.2024 which too has been erroneously rejected vide the impugned order dated 15.04.2024. 11. Shri Kunal Shah, learned counsel for the petitioner has argued that the Revenue Authorities be it the SDM, the Divisional Commissioner and the Board of Revenue have utterly failed to adjudicate the core issues involved in the case of the petitioner that the petitioner being a tenure holder of the adjacent contiguous plot was required to be impleaded in the proceedings at the inception and if not impleaded initially ought to have been issued notices and impleaded at the time of undertaking the exercise of demarcation by the Revenue Inspector. Shri Kunal Shah has invited the attention of this Court to the provisions of Rule 22 of the Revenue Code Rules, 2016 particularly to Rule 22 (1)(b), 22 (7), 22 (8) and 22 (9) of the Rules. He further submits that in the case at hand the petitioner had on getting knowledge of the proceedings appeared and filed his objections to the ex-parte demarcation report but his objections were not looked into at any stage of the proceedings and as such, the orders impugned are vitiated in law and liable to be set aside. 12. Per contra, learned Standing Counsel appearing for the State respondents and Shri S.K. Tyagi leaned counsel appearing for the Respondent no. 8 at whose instance the proceedings under Section 24 of the UP Revenue Code, 2006 had been initiated, in opposition to the writ petition submit that the authorities have recorded findings of fact that the affected parties had been heard and in the wake of such concurrent findings the writ petition is not liable to be entertained and deserves to be dismissed at the threshold. 13. This Court during the course of the arguments vide order dated 5.7.2024 being of the opinion that the parties were at variance regarding the service of notice upon the tenure holders, had summoned the records pertaining to the proceedings so as to ascertain the factum of service of notice upon the tenure holders including the petitioners herein. 13. This Court during the course of the arguments vide order dated 5.7.2024 being of the opinion that the parties were at variance regarding the service of notice upon the tenure holders, had summoned the records pertaining to the proceedings so as to ascertain the factum of service of notice upon the tenure holders including the petitioners herein. The records were received and the same were perused by the parties as also the Court. 14. Shri S. K. Tyagi, learned counsel for the contesting respondent does not dispute that no notice had been sent to the father of the petitioner or to the petitioner as contemplated under Rule 22 (7) of the U.P. Revenue Code Rules, 2016. After perusal of the records the same was handed back to the learned Standing Counsel who in turn handed over to the person who had produced the records. 15. I have heard learned counsel for the parties and have perused the records. 16. Rule 22 of the U.P. Revenue Code Rules, 2016 contains a provision for making application for settlement of boundary dispute under Section 24 (1) of the U.P. Revenue Code, 2006 and the procedure for disposal thereof. The Sub Rule (6), (7) and (8) clearly contemplate that after receiving the application, notices be issued to all the tenure holders concerned. The spot memo prepared at the time of demarcation of the plot shall be signed by all the parties concerned and also by the Chairman of the Land Management Committee in the presence of two witnesses present at the time of demarcation. The procedure prescribed appears to have been not followed. Besides the objections of the petitioner has also not been considered before finalizing the proceedings under Section 24. 17. Learned counsel for the petitioner has also submitted that the petitioner had filed an application for correction of map in respect of Plot No. 122 which proceedings are pending. He submits that during the pendency of the proceedings for correction of map, no demarcation can be carried out. 18. The Court finds substance in the submissions of learned counsel for the petitioner. He submits that during the pendency of the proceedings for correction of map, no demarcation can be carried out. 18. The Court finds substance in the submissions of learned counsel for the petitioner. Considering the totality of the circumstances, the Court is of the opinion that ends of justice shall stand sub served if proceedings for demarcation of the Plot No. 123 are carried out de novo in strict compliance of the procedure laid down under the U.P. Revenue Code, 2006 and the U.P. Revenue Code Rules 2016 framed thereunder. 19. Accordingly, the impugned orders dated 15.4.2024, 14.3.2024 and 8.2.2021 passed by the Board of Revenue, Commissioner, Prayagraj Division, Prayagraj and the Addl. Sub Divisional Magistrate, Tehsil Sadar, District Prayagraj are set aside. The writ petition stands allowed. The matter is remitted back to the Addl.Sub Divisional Magistrate, Tehsil Sadar, District Prayagraj to proceed to decide the case under Section 24 of the U.P. Revenue Code, 2006 afresh on merits, strictly adhering to the Rule 22 of the Revenue Code Rules, 2016 and affording opportunity of hearing to the petitioner and all affected tenure holders, expeditiously preferably within three months from the date of service of certified copy of the order of this Court. However, before proceedings with the case under Section 24, it shall be ensured that proceedings under Section 30 (1) for correction of map and field book have been finalized. 20. No order as to costs.