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2024 DIGILAW 205 (ALL)

Hari Om v. State of U. P.

2024-01-18

RAJEEV MISRA

body2024
JUDGMENT Rajeev Misra, J. Heard Mr. Arvind Kumar Pandey, the learned counsel for petitioner, the learned Standing Counsel for Respondents 1, 2, 3 and 4 and Mr. Sunil Kumar Singh, the learned counsel representing Respondent 5, Land Management Committee. 2. Perused the record. 3. Challenge in this writ petition is to the order dated 24.03.2023 passed by Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar in Case No. 6066 of 2023 (LMC v. Hari Om), under Section 67 of U.P. Revenue Code, 2006 (Annexure 1 to the writ petition) as well as the order dated 27.09.2023 passed by Respondent 2, Additional District Magistrate (Administration), Gautam Budh Nagar in Appeal No. 521 of 2023 (Hari Om v. Noida Industrial Development Authority), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) whereby aforementioned appeal filed by petitioner against order dated 06.04.2023 has been dismissed. 4. Record shows that the Halka Lekhpal submitted the report (RC Form-19) alleging therein that petitioner-Hari Om has illegally encroached upon Survey Plot No. 493 area 1.0250 hectares. On the basis of aforesaid report, a case under Section 67 of U.P. Revenue Code, 2006 (LMC v. Hari Om) came to be registered in the Court of Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar. Notice dated 25.02.2023 was issued to the petitioner asking him to show cause. In response to the aforesaid notice dated 25.02.2023, petitioner appeared and filed his objection dated 02.03.2023. Petitioner disputed the contents of the notice by alleging that the said notice is manifestly illegal and contrary to law and facts. On account of above, parties went to trial. In view of the objections raised by the petitioner, Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar came to the conclusion that it is necessary to get measurement and demarcation of the land in dispute i.e. Survey Plot No. 493 area 1.0250 hectares (Petitioner is alleged to be in possession over 0.0500 hectares) measured and demarcated. Consequently, the revenue team was constituted, which made measurement on the spot. Subsequently, the revenue team submitted its report dated 18.03.2023. According to the said report, the petitioner was found to be in illegal possession and occupation over an area of 0.0500 hectare of Survey Plot No. 493. No objections were filed by the petitioner to the said report. Consequently, the revenue team was constituted, which made measurement on the spot. Subsequently, the revenue team submitted its report dated 18.03.2023. According to the said report, the petitioner was found to be in illegal possession and occupation over an area of 0.0500 hectare of Survey Plot No. 493. No objections were filed by the petitioner to the said report. Respondent 3 upon evaluation of the material on record came to the conclusion that Survey Plot No. 493 area 1.0250 hectares is recorded as a pond in the revenue records. As such, the land in dispute falls in the category of public utility land. Consequently, the same is covered under Section 77 of U.P. Revenue Code, 2006. In view of above, no right can accrue in favour of petitioner, even on account of long and uninterrupted possession. Consequently, respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar vide order dated 24.03.2023 directed eviction of the petitioner from the land in dispute. Simultaneously, respondent 3 also awarded damages to the tune of Rs. 60 lacs and further imposed execution cost to the tune of Rs. 4200/-. 5. Feeling aggrieved by above order dated 24.03.2023, petitioner filed an appeal in terms of Section 67(5) of U.P. Revenue Code, 2006, which was registered as Appeal No. 521 of 2023 (Hari Om v. Noida Industrial Development Authority), under Section 67(5) of U.P. Revenue Code, 2006. Various submissions were urged on behalf of the petitioner in support of the appeal. However, none of the same found favour by the appellate authority. Consequently, the appellate authority i.e. Respondent 2, Additional District Magistrate (Administration), Gautam Budh Nagar passed an order of affirmance dated 27.09.2023 dismissing the appeal filed by petitioner. Thus feeling aggrieved by above order dated 24.03.2023 and 27.09.2023, petitioner has now approached this Court by means of present writ petition under Article 226 of the Constitution of India. 6. Learned counsel for petitioner submits that order impugned in the present writ petition are manifestly illegal and without jurisdiction. He submits that on account of objections raised by the petitioner, a revenue team was constituted to make measurement and demarcation of Survey Plot No. 1.0250 hectares on which, petitioner is alleged to have made encroachment. The revenue team so constituted, submits its report on 18.03.2023. He submits that on account of objections raised by the petitioner, a revenue team was constituted to make measurement and demarcation of Survey Plot No. 1.0250 hectares on which, petitioner is alleged to have made encroachment. The revenue team so constituted, submits its report on 18.03.2023. However, without granting reasonable opportunity to the petitioner to file his objection to the same, respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar decided the proceedings under Section 67 of U.P. Revenue Code, 2006 vide order dated 24.03.2023. It is then contended that proceedings were initiated against the petitioner on the report of Lekhpal, as is evident from the recital contained in the order dated 24.03.2023. Perusal of the order dated 24.03.2023 goes to show that the Halka Lekhpal on whose report, the proceedings were initiated did not appear before court below to prove the report. He, therefore, contends that no trial of the issue involved in the proceedings under Section 67 of U.P. Revenue Code, 2006 has taken place. The appellate authority without considering the grounds urged by the petitioner in support of the appeal as well as the facts as noted above, has dismissed the appeal by passing an order of affirmance, which is illegal. 7. According to the learned counsel for petitioner, the damages awarded by Respondent 3, Sub Divisional Officer, Dadari, District-Gautam Budh Nagar is not only illegal, irrational but also arbitrary. No attempt has been made by Respondent 3, Sub Divisional Officer, Dadari, District-Gautam Budh Nagar to undertake any exercise in terms of Rule 67(4) of U.P. Revenue Code Rules, 2016. Consequently, the amount of damages awarded against the petitioner to the tune of Rs. 60 lacs cannot be sustained in any view of the matter inasmuch as, no attempt has been made by Respondent 3, Sub Divisional Officer, Dadari, District-Gautam Budh Nagar to calculate the damages with reference to the facts and circumstances of the case. As such, the orders impugned in present writ petition are liable to be quashed by this Court. 8. Per contra, the learned Standing Counsel and the learned counsel representing Respondent 5 have opposed the present writ petition. They submit that though the petitioner has disputed possession and occupation over the land in dispute i.e. Survey Plot No. 493 area 1.0250 hectare but he has not categorically stated the Survey Plot No. over which, he is in possession. 8. Per contra, the learned Standing Counsel and the learned counsel representing Respondent 5 have opposed the present writ petition. They submit that though the petitioner has disputed possession and occupation over the land in dispute i.e. Survey Plot No. 493 area 1.0250 hectare but he has not categorically stated the Survey Plot No. over which, he is in possession. On the above premise, they submit that the objections raised by the petitioner were wholly devoid of material particulars. However, irrespective of above, Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar constituted a revenue team to undertake measurement and demarcation of the land in dispute to find out as to whether petitioner is actually in illegal possession and occupation over Survey Plot No. 493 area 1.0250 hectare or not. The revenue team submit its report on 18.03.2023. It is apposite to mention here that the measurement and demarcation exercise was undertaken in the presence of the petitioner but no objection was raised by the petitioner at the time of the measurement/demarcation exercise nor to the report dated 18.03.2023. As such, petitioner is now estopped from contradicting the report dated 18.03.2023. Furthermore, as per the said report, it is fully established that petitioner has encroached upon an area of 0.0500 hectare of Survey Plot No. 1.0250 hectare. Apart from above, the land in dispute i.e. Survey Plot No. 493 is recorded as a pond. As such, the same is land of public utility. Consequently, the same is covered under Section 77 of U.P. Revenue Code, 2006. In view of above, no right can accrue in favour of the petitioner in the land in dispute even on the basis of long and uninterrupted possession. As such, no illegality has been committed by the authorities below in passing an order of eviction against the petitioner. However, the learned Standing Counsel cannot justify the damages to the tune of Rs. 60 lacs against the petitioner with reference to Rule 67(4) of U.P. Revenue Code Rules, 2016. 9. Having heard, the learned counsel for petitioner, the learned Standing Counsel for Respondents 1, 2, 3 and 4 and Mr. Sunil Kumar Singh, the learned counsel representing Respondent 5, Land Management Committee and upon perusal of record this Court finds that since the petitioner has failed to establish his right title and interest over Survey Plot No. 493. 9. Having heard, the learned counsel for petitioner, the learned Standing Counsel for Respondents 1, 2, 3 and 4 and Mr. Sunil Kumar Singh, the learned counsel representing Respondent 5, Land Management Committee and upon perusal of record this Court finds that since the petitioner has failed to establish his right title and interest over Survey Plot No. 493. Therefore, no illegality has been committed by authorities below in passing the order of eviction against the petitioner. Survey Plot No. 493 is recorded as a pond in the revenue records. As such, the same is land of public utility. By virtue of the provisions contained in Section 77 of U.P. Revenue Code, 2006, no right can accrue in favour of petitioner in the land in dispute even on the basis of long and uninterrupted possession. Apart from above, the Court further finds that though the petitioner denied his possession over the land in dispute but he has not disclosed the Survey Plot Number over which, he is in possession. Irrespective of above, Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar in order to do complete justice between the parties, constituted a revenue team for measurement and demarcation of the land in dispute. The revenue team so constituted submitted its report dated 18.03.2023 wherein it was found that the petitioner has made encroachment over an area of 0.0500 hectare of Survey Plot No. 493. The measurement and demarcation exercise was undertaken by the revenue team in presence of the petitioner. As such, it cannot be said that the measurement and demarcation exercise of the land in dispute was conducted in violation of the principles of natural justice. No objection was filed by the petitioner to the report dated 18.03.2023 submitted by the revenue team. As such, the petitioner cannot contradict the report dated 18.03.2023. In view of above, this Court does not find any illegality in the order of eviction passed by the authorities below against the petitioner. However, the Court finds that damages to the tune of Rs. 60 lacs have been imposed by Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District Gautam Budh Nagar against the petitioner. In view of above, this Court does not find any illegality in the order of eviction passed by the authorities below against the petitioner. However, the Court finds that damages to the tune of Rs. 60 lacs have been imposed by Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District Gautam Budh Nagar against the petitioner. The order impugned dated 24.03.2023 passed by Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar does not show that any exercise was undertaken by Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar for calculating the amount of damages so awarded. It is thus apparent that damages have been awarded against the petitioner in complete ignorance of the mandatory provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016. Consequently, the amount of damages awarded against the petitioner cannot be sustained. 10. In view of above, the present writ petition succeeds in part and is liable to be partly allowed. 11. It is accordingly partly allowed. 12. The impugned order dated 24.03.2023 passed by Respondent 4, Tehsildar (Judicial)/Assistant Collector, Tehsil Dadari, District-Gautam Budh Nagar in Case No. 6066 of 2023 (LMC v. Hari Om), under Section 67 of U.P. Revenue Code, 2006 (Annexure 1 to the writ petition) as well as the order dated 27.09.2023 passed by Respondent 2, Additional District Magistrate (Administration), Gautam Budh Nagar in Appeal No. 521 of 2023 (Hari Om v. Noida Industrial Development Authority), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) are modified to the extent that the damages awarded to the petitioner by means of above orders is hereby quashed whereas the order of eviction passed against the petitioner is sustained. 13. Cost made easy.