Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 362 (ALL)

Umesh Singh v. State Of U. P.

2024-02-02

RAJEEV MISRA

body2024
JUDGMENT : Rajeev Misra, J. 1. Heard Mr. Rajesh Kumar Singh, the learned counsel for petitioner, the learned Standing Counsel representing respondents 1, 2, 3 and Mr. D.S. Pandey, the learned counsel representing respondent 4 . 2. Perused the record. 3. Challenge in this writ petition is to the order dated 30.12.2020 passed by respondent 3 Tehsildar/Assistant Collector Ist Class, Tehsil Sadar, District Mau in Case No. 02973 of 2020 (Report Vs. Umesh Singh) under Section 67 of U.P. Revenue Code 2006 (Annexure 2 to the writ petition) and the order dated 31.10.2023 passed by respondent Collector/District Magistrate, Mau in Appeal No. 35 of 2023 (Umesh Singh Tehsildar), under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure 1 to the writ petition). 4. Record shows that the Halka Lekhpal submitted his report dated 2.3.2020 (R.C. Form 19) alleging therein that petitioner is in illegal possession and occupation over Survey Plot No. 1 area 0.023 hectare which is recorded as a nala in the revenue record. After submission of aforesaid report, proceedings under Section 67 of the U.P. Revenue Code 2006 came to be registered against petitioner by way of Case No. 2973 of 2020 (Report Lekhpal Vs. Umesh Singh) under Section 67 of U.P. Revenue Code 2006. Accordingly, notice (R.C. Form 20) was issued to the petitioner. However, in spite of service of notice, the petitioner did not appear in aforementioned proceedings nor he filed his objection in the same. Respondent 3 Tehsildar/Assistant Collector, Ist Class, Tehsil Sadar, District Mau upon consideration of the material on record accepted the report of the Halka Lekhpal and accordingly, passed an order dated 30.12.2020, whereby not only eviction was directed against petitioner but also damages were imposed to the tune of Rs. 7,82,000/-Petitioner feeling aggrieved by the order dated 30.12.2020 preferred a time barred appeal in terms of Section 67 (5) of U.P. Revenue Code, 2006 before respondent 2 Collector/District Magistrate, Mau. The same was registered as Appeal No. 35 of 2023. Respondent 2 Collector/District Magistrat, Mau did not agree with the grounds of appeal or the arguments raised on behalf of petitioner in support of the appeal. Consequently, respondent 2 Collector/District Magistrate, Mau without first deciding the delay condonation matter dismissed the appeal filed by petitioner by passing an order of affirmence dated 31.10.2023. 5. Respondent 2 Collector/District Magistrat, Mau did not agree with the grounds of appeal or the arguments raised on behalf of petitioner in support of the appeal. Consequently, respondent 2 Collector/District Magistrate, Mau without first deciding the delay condonation matter dismissed the appeal filed by petitioner by passing an order of affirmence dated 31.10.2023. 5. Thus feeling aggrieved by the orders dated 30.12.2020 and 31.10.2023 referred to above, 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 though the petitioner did not appear before respondent 3 Tehsildar/Assistant Collector Ist Class, nor he filed an objection to the notice (R.S. Form 20), yet irrespective of above, the order dated 30.12.2020 passed by respondent 3 cannot be sustained in law. It is by now well settled that even if a judgement is ex-parte, yet it must be in accordance with law. Attention of the Court was then invited to the order dated 30.12.2020 and with reference to above, the learned counsel for petitioner submits that no trial has taken place in respect of the issues involved in the present proceedings under Section 67 of U.P. Revenue Code, 2006, inasmuch as the Halka Lekhpal, who submitted the report dated 02.03.2020 (R.C. Form 19) and which forms the basis of the proceedings under Section 67 of U.P. Revenue Code, 2006 did not appear before respondent 3, Tehsildar/Assistant Collector, Ist Class, Tehsil Sadar, District Mau to prove the report. He, therefore, contends that no trial has taken place. It is then contended that vide order dated 30.12.2020 not only eviction of petitioner from the land in dispute has been directed but also damages to the tune of 7,82,000/-have bene imposed against the petitioner. However, the damages so awarded against the petitioner is not only excessive, irrational but also illusionary. As no attempt was made by respondent 3 to determine the damages imposed upon the petitioner, in light of the mandatory provisions contained in Rule 67 (4) of U.P. Revenue Code Rules, 2016. On the above premise, he, therefore, submits that order impugned dated 30.12.2020 passed by respondent Tehsil/Assistant Collector Ist Class, Tehsil Sadar, District Mau cannot be sustained and therefore liable to be quashed by this Court. On the above premise, he, therefore, submits that order impugned dated 30.12.2020 passed by respondent Tehsil/Assistant Collector Ist Class, Tehsil Sadar, District Mau cannot be sustained and therefore liable to be quashed by this Court. The Appellate Authority i.e. respondent 2 Collector/District Magistrate, Mau has simply passed an order of affirmance without adverting to the facts and circumstances of the case as noted herein above. He thus submits that the Appellate Authority has failed to exercise the jurisdiction vested in him diligently and with reference to the material on record. As such, the order of the Appellate Authority is simply an order of affirmance without adverting to the facts and circumstances of the case. In view of above, the order of Appellate Authority is not only illegal but also arbitrary and hence liable to be quashed by this Court. 7. Per contra, the learned Standing Counsel representing respondents 1, 2, 3 and Mr. D.S. Pandey, Advocate, holding brief of Mr. Dharmaveer Singh, the learned counsel representing respondent 4 have opposed the present writ petition. They submit that since petitioner is in illegal occupation of public land i.e. Survey Plot No. 1 area 0.023 hectare, which is recorded as a Nala therefore, no illegality has been committed by the Authorities below in directing eviction of the petitioner. They also contend that notice was issued to the petitioner, but for the reasons best known to him, he did not appear before respondent 3. On the above conspectus, it is urged by the learned Standing Counsel that once the petitioner has chosen not to contest the proceedings aforementioned, therefore, he now cannot turn around and challenge the same before this Court. It is thus urged that no interference is warranted by this Court in present writ petition. 8. In rejoinder, the learned counsel for petitioner has taken the Court to the order passed by the Appellate Authority. He submits that the appeal filed by the petitioner was barred by limitation, but the Appellate Authority has dismissed the appeal filed by the petitioner on the ground of limitation as well as the merits of the case, which is illegal. The proper course for the appellate authority was to first decide the delay condonation application and in case, the delay condonation application was allowed, the appellate authority could have considered the merits of the case. The proper course for the appellate authority was to first decide the delay condonation application and in case, the delay condonation application was allowed, the appellate authority could have considered the merits of the case. Much emphasis was laid to the recital contained at page 23 of the paper book. With reference to above, he submits that once the petitioner himself did not appear before Trial Court i.e. the Tehsildar, therefore, there could not be any appeal on the part of the part of the petitioner to prolong the proceedings on the ground of cross examining. He, therefore, contends that Appellate Authority has not even adverted the record of the case before passing the order impugned. 9. Having heard the learned counsel for petitioner, the learned Standing Counsel, the learned counsel representing respondent 4 and upon perusal of the record and the fact as noted herein above, this Court finds that the petitioner has failed to establish his right, title and interst in the land in dispute. Furthermore, the land in dispute i.e. Survey Plot No. 1, area 0.023 hectares is recorded as a Nala 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. As such, no right can accrue in favour of petitioner in the land in dispute even on the basis of long and uninterrupted possession. In view of above, no illegality has been committed by Respondent 3, Tehsildar/Assistant Collector, First-Class, Tehsil Sadar, District-Mau in passing an order of eviction against petitioner. However, the Court finds that damages have been awarded against petitioner without adverting to the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016. There is nothing in the order passed by Respondent 3 to show as to on what basis respondent 3 has arrived at the conclusion that damages should be awarded to the tune of Rs. 7,82,000/-. As such, the damages awarded against the petitioner is not only illegal, irrational, excessive but also illusionary. Consequently, the damages awarded against the petitioner cannot be sustained. 7,82,000/-. As such, the damages awarded against the petitioner is not only illegal, irrational, excessive but also illusionary. Consequently, the damages awarded against the petitioner cannot be sustained. The appellate authority has decided the appeal in derogation of the established legal principle inasmuch as, where an appeal has been filed with delay, the appellate authority must first decide the delay condonation matter and only in case, the delay condonation application is allowed, the appellate authority can consider the merits of the appeal. Apart from above, this Court further finds that the appellate authority has failed to consider the illegality in the order passed by respondent 3 inasmuch as, no finding has been returned by appellate authority regarding the amount of damages awarded against the petitioner. When admittedly the same was awarded by respondent 3 in derogation of the mandatory provisions contained in Rule 67(4) of U.P. Revenue Code Rules, 2016. 10. In view of the discussion made herein above, the present writ petition is liable to succeeds in part, It is accordingly partly allowed. 11. The impugned order dated 30.12.2020 passed by respondent 3 Tehsildar/Assistant Collector Ist Class, Tehsil Sadar, District Mau in Case No. 02973 of 2020 (Report Vs. Umesh Singh) under Section 67 of U.P. Revenue Code 2006 (Annexure 2 to the writ petition) and the order dated 31.10.2023 passed by respondent Collector/District Magistrate, Mau in Appeal No. 35 of 2023 (Umesh Singh Tehsildar), under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure 1 to the writ petition) are, hereby, modified to the extent that the order of eviction passed against petitioner is sustained whereas the amount of damages awarded against petitioner is quashed. 12. Cost made easy.