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2024 DIGILAW 284 (ALL)

Kedar Singh v. State of U. P.

2024-01-25

RAJEEV MISRA

body2024
JUDGMENT Rajeev Misra, J. Heard Mr. Jay Prakash Singh, the learned counsel for petitioner, the learned Standing Counsel for Respondents 1, 2 and 3 and Miss Satakshi Singh, Advocate holding brief of Mr. Avinash Chandra Srivastava, the learned counsel representing Respondent 4. 2. Perused the record. 3. Challenge in this writ petition is to the order dated 26.09.2019 passed by Respondent 3/Assistant Collector/Tehsildar, Tehsil- Fatehabad, District-Agra in Case No. 04165 of 2018 (Gram Sabha Hirner Navada Kheda v. Kedar Singh), under Section 67 of U.P. Revenue Code, 2006, the order dated 16.11.2019 also passed by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra in Case No. 03408 of 2019 (Kedar Singh v. ....), under Section 67 of U.P. Revenue Code, 2006 on the restoration application dated 04.10.2019 filed by the petitioner against earlier order dated 26.09.2019, an order dated 10.10.2022 passed by Respondent 2, Additional Collector (Administration), Agra in Appeal No. 10726 of 2019 (Kedar Singh v. Gram Sabha Hirner trough Pradhan), under Section 67(5) of U.P. Revenue Code, 2006 whereby aforementioned appeal filed by petitioner against the orders passed by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra has also been dismissed. 4. Record shows that the Halka Lekhpal submitted his report dated 20.12.2018 alleging there that petitioner is in illegal possession and occupation over an area of 322.5 sq. mtr. of Gram Sabha land i.e. Survey Plot No. 158 area 0.1500 Hectare. After submission of aforementioned report, proceedings under Section 67 of U.P. Revenue Code, 2006 came to be registered against petitioner as Case No. 04165 of 2018 (Gram Sabha Hirner Navada Kheda v. Kedar Singh), under Section 67 U.P. Revenue Code, 2006. Accordingly, notice dated 17.01.2019 (RC-Form20) was issued to the petitioner. Petitioner appeared in aforementioned proceedings and filed his objection dated 11.02.2019 disputing the correctness of the report submitted by the Halka Lekhpal giving rise to the proceedings under Section 67 of U.P. Revenue Code, 2006. In view of above, the parties went to trial. The petitioner appeared in person before Respondent 3/Assistant Collector/Tehsildar, Tehsil- Fatehabad, District-Agra and denied his illegal possession and occupation over the Gram Sabha land. According to the petitioner, he is in possession over Survey Plot No. 160. The Halka Lekhpal also appeared in person and proved the report submitted by him. In view of above, the parties went to trial. The petitioner appeared in person before Respondent 3/Assistant Collector/Tehsildar, Tehsil- Fatehabad, District-Agra and denied his illegal possession and occupation over the Gram Sabha land. According to the petitioner, he is in possession over Survey Plot No. 160. The Halka Lekhpal also appeared in person and proved the report submitted by him. In view of aforesaid contentious issues, the Revenue Inspector was directed to conduct on spot measurement with regard to the illegal possession and occupation of the petitioner, if any. Accordingly, the Revenue Inspector conducted an on spot inspection on 03.08.2019 and submitted his report dated 20.08.2019. However, no objection against the said report was filed by the petitioner. As per the report of the Revenue Inspector, the petitioner was found to be in illegal possession and occupation over an area of 322.5 sq. mtr. of Survey Plot No. 158. In the light of above and the pleadings of the parties, Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra proceeded to adjudicate upon the controversy involved. 5. Having dealt with the material on record and the evidence adduced of the parties, Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra came to the conclusion that petitioner is in illegal possession and occupation over an area of 322.5 sq. mtr. of Survey Plot No. 158. Furthermore, Survey Plot No. 158 of Village-Kheda, Mauja-Hirner Navada Kheda, Tehsil- Fatehabad, District-Agra is recorded as manure pit (Khad ka Gadha). 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. He, accordingly, directed eviction of the petitioner from Survey Plot No. 158 from an area 322.5 sq. mtrs. and further awarded damages to the tune of Rs. 11250/- against the petitioner. 6. Feeling aggrieved by the order dated 26.09.2019, petitioner filed a restoration application dated 04.10.2019 which was registered as Case No. 03408 of 2019 (Kedar Singh v. Gram Sabha), under Section 67 of U.P. Revenue Code, 2006. The said restoration application came to be dismissed by Respondent 3 vide order dated 16.11.2019 primarily on the ground that since the earlier order dated 04.10.2019 is not an ex-parte order, therefore, no good ground exist to recall of the said order. The said restoration application came to be dismissed by Respondent 3 vide order dated 16.11.2019 primarily on the ground that since the earlier order dated 04.10.2019 is not an ex-parte order, therefore, no good ground exist to recall of the said order. Feeling aggrieved by above orders dated 04.10.2019 and 26.09.2019, petitioner preferred an appeal under Section 67(5) of U.P. Revenue Code, 2006 before the appellate authority which was registered as Appeal No. 10726 of 2019 (Kedar Singh v. Gram Sabha Hirnesr trough Pradhan), under Section 67(5) of U.P. Revenue Code, 2006. The appellate authority upon consideration of the grounds of appeal as well as the arguments raised before the appellate authority did not find any such ground so as to take contrary view that was taken by Respondent 3. Accordingly, appellate authority passed an order of affirmance dismissing the appeal filed by petitioner vide order dated 10.10.2022. 7. Thus feeling aggrieved by above orders, petitioner has now approached this Court by means of present writ petition under Article 226 of the Constitution of India. 8. Learned counsel for petitioner submits that orders impugned in the present writ petition are manifestly illegal and therefore, liable to be quashed by this Court. He has then invited the attention of Court to ground no. 3 of the memo of appeal and on basis thereof, he submits that since there was a vast difference in the reports submitted by Halka Lekhpal and the revenue team, therefore, facts and circumstances of the case demanded that a denovo measurement exercise should have been undertaken to find out as to whether, petitioner is actually in illegal possession and occupation of Gram Sabha land or not. However, ignoring the above, the appellate authority dismissed the appeal. It is then contended that petitioner is in possession and occupation in his own right over Survey Plot No. 160. As such, no encroachment has been made by the petitioner over Gaon Sabha land. On the cumulative strength of above, it is urged by the learned counsel for petitioner that orders impugned in present writ petition cannot be sustained and therefore, liable to be quashed by this Court. He has then invited the attention of Court to the order dated 26.09.2019 and on basis thereof, he contends that amount of damages awarded by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra against the petitioner is not only irrational, harsh and excessive but also illusionary. He has then invited the attention of Court to the order dated 26.09.2019 and on basis thereof, he contends that amount of damages awarded by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra against the petitioner is not only irrational, harsh and excessive but also illusionary. No attempt was made by respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra in terms of Rule 67(4) of U.P. Revenue Code Rules, 2016 to calculate the amount of damages to be awarded against the petitioner. He, therefore, contends that since no exercise was undertaken by Respondent 3/Assistant Collector/Tehsildar, Tehsil- Fatehabad, District-Agra to calculate the amount of damages payable by the petitioner with reference to the facts and circumstances of the case and also the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016, therefore, the amount of damages awarded against the petitioner cannot be sustained. 9. Per contra, the learned Standing Counsel and the learned counsel representing Respondent 4 have opposed the present writ petition. They submit that after the petitioner had filed his objection to the report submitted by the Halka Lekhpal and after his statement had been recorded, respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra directed the Revenue Inspector to conduct a fresh measurement exercise with regard to the encroachment, if any, over Survey Pot No. 158. Subsequent to above, the Revenue Inspector duly undertook measurement exercise on 03.08.2019 and submitted his report dated 20.08.2019 specifically stating therein that petitioner is in illegal possession and occupation over an area of 322.5 sq. mtr. of Survey Plot No. 158 which is recorded as manure pit. No objection was filed by the petitioner to the aforesaid report. As such, the illegal possession of the petitioner over the land of public utility was conclusively established vide aforesaid report. In view of above, the learned Standing Counsel contends that no illegality has been committed by Respondent 3 in passing the order of eviction against the petitioner. Furthermore, since the land in dispute is a public utility land, therefore, the same is covered under Section 77 of U.P. Revenue Code 2006. Consequently, petitioner cannot claim right over the said land even on the basis of long and uninterrupted possession. As such, the appellate authority has rightly passed an order of affirmance. It is thus contended by the learned Standing Counsel that no interference is warranted in the present writ petition. Consequently, petitioner cannot claim right over the said land even on the basis of long and uninterrupted possession. As such, the appellate authority has rightly passed an order of affirmance. It is thus contended by the learned Standing Counsel that no interference is warranted in the present writ petition. However, the learned Standing Counsel could not dislodge the submission urged by the learned counsel for petitioner with regard to the damages awarded by the Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra. 10. Having heard, the learned counsel for petitioner, the learned Standing Counsel, the learned counsel representing respondent 4 and upon perusal of record this Court finds that during the pendency of proceedings under Section 67 of U.P. Revenue Code, 2006, after the petitioner had filed his objection to the report of the Halka Lekhpal and had also given his testimoney, Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra directed the Revenue Inspector to submit a fresh report with regard to the encroachment, if any, over Survey Plot No. 158. It is pursuant to above that Revenue Inspector conducted measurement proceedings on 03.08.2019 and submitted his report dated 20.08.2019 categorically stating therein that petitioner is in illegal possession and occupation over an area 322.5 sq. mtr. of Survey Plot No. 158. No objection was filed by the petitioner to the aforesaid report. In view of above, no illegality can be attached in the order of eviction passed against the petitioner. Apart from above, since the land in dispute is a public utility land, therefore, the same is covered under Section 77 of U.P. Revenue Code, 2006. Consequently, no right can accrue in favour of petitioner even on the basis of long and uninterrupted possession. As such, order of eviction passed against the petitioner is not liable to be interfered with. However, this Court finds that damages have been awarded against petitioner without observing the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016. No attempt was made by respondent 3/Assistant Collector/Tehsildar, Tehsil- Fatehabad, District-Agra to calculate the amount of damages with reference to the aforesaid provisions. As such, the amount of damages awarded by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra is not only irrational, arbitrary but also illusionary. On what basis, the Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra arrived at the figure of Rs. 11,250/- is not discernible from the orders impugned. 11. As such, the amount of damages awarded by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra is not only irrational, arbitrary but also illusionary. On what basis, the Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra arrived at the figure of Rs. 11,250/- is not discernible from the orders impugned. 11. In view of above, the present writ petition succeeds in part and is liable to be partly allowed. 12. It is accordingly partly allowed. 13. The impugned order dated 26.09.2019 passed by Respondent 3/Assistant Collector/Tehsildar, Tehsil-Fatehabad, District-Agra in Case No. 04165 of 2018 (Gram Sabha Hirner Navada Kheda v. Kedar Singh), under Section 67 U.P. Revenue Code, 2006 (Annexure-4 to the writ petition), the order dated 16.11.2019 also passed by Respondent 3/Assistant Collector/Tehsildar, Tehsil- Fatehabad, District-Agra in Case No. 03408 of 2019 (Kedar Singh v. ....), under Section 67 of U.P. Revenue Code, 2006 (Annexure- 6 to the writ petition) and on the restoration application dated 04.10.2019 filed by the petitioner against earlier order dated 26.09.2019, an order dated 10.10.2022 passed by Respondent 2, Additional Collector (Administration), Agra in Appeal No. 10726 of 2019 (Kedar Singh v. Gram Sabha Hirner trough Pradhan), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) are hereby partly modified to the extent that the damages awarded against the petitioner by means of above orders shall stand quashed whereas the order of eviction passed against the petitioner is sustained. 14. Cost made easy.