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2024 DIGILAW 2010 (ALL)

Rajvansi v. State Of U. P.

2024-09-04

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : Ashutosh Srivastava, J. 1. Heard Sri Manish Kumar Singh, learned counsel for the petitioners, learned Standing Counsel for the State-respondents no. 1 to 3 and 6, Sri Rameshwar Prasad Shukla, learned counsel for the respondent no. 4, the Gaon Sabha as also Sri Rahul Sahai, learned counsel, who has put in appearance on behalf of the respondent no. 5. 2. The writ petition arises out of proceedings under Section 134 of the U.P. Revenue Code, 2006 and is directed against the order dated 27.08.2024 passed by the Board of Revenue in Revision No. 3376 of 2024 (Rajvanshi and others vs. State of U.P. and others) whereby and whereunder the revision preferred by the petitioners assailing the order dated 24.07.2024 passed by the Commissioner, Azamgarh Division, Azamgarh rejecting the appeal and upholding the order dated 26.05.2022 passed by the Sub Divisional Magistrate, Tehsil Sikandarpur, Ballia in proceedings under Section 134 of the U.P. Revenue Code, 2006 has been upheld. 3. Learned counsel for the petitioners contends that the respondent no. 5, Veer Bahadur initiated proceedings under Section 134 of the U.P. Revenue Code, 2006 with the allegation that he is the recorded Bhumidhar of Gata No. 632sa area 0.3840 hectare contained in Khata No. 145 and Gata No. 632 area 0.0400 hectare contained in Khata No. 148 of Mauja Firozpur, Pargana Sikanderpur Poorvi, District Ballia and that the petitioners have occupied the Bhumidhari land without title and have set up a tin shed and are residing there. The Sub-Divisional officer vide order dated 19.04.2018 without hearing the petitioners passed an order directing the dispossession/ejectment of the petitioners from the Gatas in question. The petitioners assailed the order dated 19.04.2018 in revision before the Commissioner Azamgarh Division, Azamgarh under Section 210 of the U.P. Revenue Code, 2006 which was registered as Revision No. 603 of 2018. The revision was allowed vide order dated 26.10.2018 and matter was remanded to the SDO to decide the same afresh after affording opportunity of hearing to the parties. After remand the SDO passed the order dated 26.05.2022 allowing the case of the respondent no. 5 under Section 134 and directing the dispossession of the petitioners from the Gata Nos. 632sa area 0.384 hectare and Gata No. 632 area 0.040 hectares after recording the finding that Gata no. After remand the SDO passed the order dated 26.05.2022 allowing the case of the respondent no. 5 under Section 134 and directing the dispossession of the petitioners from the Gata Nos. 632sa area 0.384 hectare and Gata No. 632 area 0.040 hectares after recording the finding that Gata no. 632ka/801 area 0.081 hectare and Gata No. 632 kha/801 area 0.041 hectares allotted to the petitioners as agricultural land was cancelled under the order of the ADM (Finance & Revenue), Ballia in proceeding under Section 198(4) of the U.P. Z.A.&L.R. Act registered as Case No. 058/2003 dated 30.06.2006 with the further direction that the SDM undertakes fresh proceedings for allotment. The said order dated 30.06.2006 was carried in Revision No. 64 of 2005-2006 under Section 333 of the U.P. Z.A.&L.R. Act. The Board of Revenue vide its order dated 11.07.2014 upheld the order dated 30.06.2006 however observed that if any land is left after construction of the road and culvert the petitioners shall not be evicted from such land. The SDO found that as per the report of the Joint Revenue Team and spot inspection the Gata No. 632ka/801 area 0.081 hectare and Gata No. 632 kha/801 area 0.040 total area 0.121 hectare had been utilized for construction of the road and culvert and the entire area allotted to the petitioners has been consumed in the construction of the road and culvert. The SDO further recorded the finding that the petitioners have illegally and unauthorizedly occupied the Gata No. 632sa area 0.384 hectare and Gata no. 632 area 0.040 hectare which area distinct Gatas belonging to the respondent no. 5 and accordingly directed for the dispossession of the petitioners. The appeal preferred by the petitioners against the order dated 26.05.2022 under Section 207 of the Revenue Code has also been rejected by the Commissioner, Azamgarh, Division Azamgarh vide order dated 24.07.2024. The revision preferred by the petitioners under Section 210 of the Revenue Code, 2006 before the Board of Revenue has been dismissed in default in the absence of the counsel for the petitioners. 4. The revision preferred by the petitioners under Section 210 of the Revenue Code, 2006 before the Board of Revenue has been dismissed in default in the absence of the counsel for the petitioners. 4. Learned counsel for the petitioners submits that the revision of the petitioners was fixed for 28.08.2024 as per the message received by the counsel for the petitioners conducting the case before the Board of Revenue however the revision was listed on 27.08.2024 itself and the Board of Revenue without looking into the records proceeded to dismiss the revision for default. Learned counsel for the petitioners further contends that the respondent no. 5 under the garb of the dismissal of the revision of the petitioners is bent upon to execute the orders of the SDO as affirmed by the Commissioner in Appeal and in fact has demolished major portion of the constructions existing over the land. He thus submits that the impugned orders be set aside and the writ petition be allowed as prayed. 5. Per contra Sri Rahul Sahai, learned counsel who has put in appearance on behalf of the contesting respondent no. 5 submits that findings of fact regarding the petitioners having illegally and unauthorisedly occupied the Bhumidhari gatas of the respondent and in such circumstances no interference is warranted by this Court. Sri Sahai further submits that the revision of the petitioners has not been decided on merits and has only been dismissed in default and it is always open for the petitioners to seek restoration of the revision and the writ petition otherwise need not be entertained. 6. I have heard the respective counsels for the parties and have perused the records. I find that the revision of the petitioners have not been decided on merits and has been dismissed in default. From the perusal of the Annexure-16 to the writ petition which is reproduction of the message received by the counsel for the revisionists before the Board of Revenue about the date fixed in the matter i.e. 28.08.2024 the revision was listed on 27.08.2024 and was dismissed in default on the non-presence of the counsel for the parties. In the opinion of the Court the petitioners ought to have applied for restoration of the revision rather than approaching this Court seeking quashing of the orders impugned. In the opinion of the Court the petitioners ought to have applied for restoration of the revision rather than approaching this Court seeking quashing of the orders impugned. Besides the court notices that the revision under Section 210 of the Revenue Code, 2006 did not lay as against an order passed in Appeal under Section 207 of the Revenue Code, 2006 arising out of proceedings under Section 134 of the Code, a second appeal under Section 208 of the Revenue Code, 2006 shall lay. The instant case arises out of proceedings under Section 134 of the Revenue Code, 2006 and have been initiated by the respondent no. 5, the recorded Bhumidhar of the Gatas No. 632sa area 0.3840 hectares and 632 area 0.040 hectares while the petitioners claim their rights over gata nos. 632ka/801 area 0.081 hectare and Gata No. 632kha/801 area 0.041 hectares. Two authorities have found that the petitioners have unauthorisedly occupied the Bhumidhari land of the respondent no. 5 and have accordingly ordered for dispossession of the petitioners from the aforesaid Gatas. Learned counsel for the parties submit that most of the constructions have since been removed. 7. In the wake of the above, the Court is not inclined to entertain this writ petition and the same is dismissed leaving it open for the petitioners to avail the remedy available to them under the law and seek recovery of possession and damages for wrongful dispossession if they succeed. 8. Parties to bear their own costs.