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2024 DIGILAW 454 (ALL)

Laxmi Devi v. State of U. P.

2024-02-12

RAJEEV MISRA

body2024
JUDGMENT Rajeev Misra, J. Heard Mr. Rajnish Tripathi, the learned counsel for petitioner, the learned Standing Counsel for Respondents 1,2,3,4 and Mr. H.N. Singh, the learned counsel representing respondent 5, Gram Sabha. 2. Perused the record. 3. At the very outset, the learned counsel for petitioner submits that he be permitted to correct the description of Respondent 3 in the cause title of the writ petition as well as the stay application. 4. Prayer made by the learned counsel for petitioner is bona-fide. Same is not opposed by the learned Standing Counsel as well as the learned counsel representing respondent 5. 5. In view of above, prayer made by the learned counsel for petitioner is allowed. 6. Accordingly, the learned counsel for petitioner is permitted to amend the cause title of the writ petition/stay application during course of the day. 7. Challenge in this writ petition is to the order dated 04.08.2023 passed by Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, District-Kanpur Dehat in Case No. 1679 of 2022 (Gaon Sabha v. Lakshmi Devi), under Section 67 of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) as well as the order dated 16.11.2023 passed by the appellate authority i.e. Respondent 2, District Magistrate/Collector, Kanpur Dehat in Case No. 1117 of 2023 (Lakshmi Devi v. Gaon Sabha), 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 04.08.2023 has been dismissed. 8. Record shows that the dispute relates to Survey Plot No. 533, area 0.166 hectares which is recorded as Naveen Parti in the revenue records. The Halka Lekhpal submitted his report (R.C. Form-19) dated 06.07.2022 alleging therein that petitioner is in illegal possesion and occupation over part of (113.70 sq. mtrs) of Survey Plot No. 533 area 0.166 hectares. After receipt of aforementioned report, accordingly proceedings under Section 67 of U.P. Revenue Code, 2006 came to be registered against petitioner as Case No. 1117 of 2023 (Gaon Sabha v. Lakshmi Devi), under Section 67 of U.P. Revenue Code, 2006. Resultantly, notice (R.C. Form-20) in terms of Section 67(2) of U.P. Revenue Code, 2006 was issued to petitioner asking him to show cause, why an order of eviction be not passed against petitioner and further why damages be not imposed against petitioner for causing damages to Gaon Sabha land on account of illegal possession and occupation. Resultantly, notice (R.C. Form-20) in terms of Section 67(2) of U.P. Revenue Code, 2006 was issued to petitioner asking him to show cause, why an order of eviction be not passed against petitioner and further why damages be not imposed against petitioner for causing damages to Gaon Sabha land on account of illegal possession and occupation. In response to the said notice dated 22.07.2022, the petitioner duly appeared and filed his objections dated 27.07.2022. The Halka Lekhpal, who had submitted his report dated 06.07.2022 on the basis of which, the proceedings under Section 67 of U.P. Revenue Code, 2006 were drawn also appeared before Respondent 4, Tehsildar/Assistant Collector (First Class), TehsilMaitha, District-Kanpur Dehat and proved the report so submitted by him. The Halka Lekhpal was cross examined by the learned counsel for petitioner before Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, District-Kanpur Dehat. However, nothing adverse could be culled out in the examination in chief of the Halka Lekhpal. Respondent 4 further contended that the land in dispute is recorded as Gaon Sabha land and the petitioner has failed to establish his right, titile and interest over the same. The basis of the possession of the petitioner over the Gaon Sabha land also could not be established. As such, petitioner is in illegal possession and occupation of Gaon Sabha land. Ultimately, upon perusal and evaluation of the material on record and the submission made, Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, District-Kanpur Dehat came to the conclusion that petitioner is in illegal possession and occupation over part of Gaon Sabha land (area 0.0072 hectares). Respondent 4, Tehsildar/Assistant Collector (First Class), TehsilMaitha, District-Kanpur Dehat. Consequently, Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, DistrictKanpur Dehat passed the order dated 04.08.2023 whereby not only eviction of petitioner from the land in dispute was directed but also damages to the tune of Rs. 23,760/- were also imposed against petitioner. 9. Feeling aggrieved by above order dated 04.08.2023, petitioner preferred an appeal before the appelate authority i.e. District Magistrate/Collector, Kanpur Dehat. The same was registered as Appeal No. 1117 of 2023 (Lakshmi Devi v. Gaon Sabha). Though a number of grounds were raised in the memo of appeal disputing the correctness of the order dated 04.08.2023. 9. Feeling aggrieved by above order dated 04.08.2023, petitioner preferred an appeal before the appelate authority i.e. District Magistrate/Collector, Kanpur Dehat. The same was registered as Appeal No. 1117 of 2023 (Lakshmi Devi v. Gaon Sabha). Though a number of grounds were raised in the memo of appeal disputing the correctness of the order dated 04.08.2023. However, none of the grounds so raised in the memo of appeal as well as the submission urged on behalf of petitioner before the appellate authority found favour with District Magistrate/Collector, Kanpur Dehat. Accordingly, Respondent 2, District Magistrate/Collector, Kanpur Dehat, dismissed the appeal filed by petitioner vide order dated 16.11.2023 by passing an order of affirmance. 10. Learned counsel for petitioner submits that the orders impugned in present writ petition are unsustainable in law and fact. Attention of the Court was then invited to the order dated 04.08.2023 and on basis thereof, he submits that damages have been awarded against petitioner without adverting to the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016. No attempt has been made by Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, DistrictKanpur Dehat to calculate the market value of the land and the amount of damages caused by the petitioner with reference to the facts and circumstances of the case. He, therefore, contends that the amount of damages awarded against the petitioner by Respondent 4, Tehsildar/Assistant Collector (First Class), TehsilMaitha, District-Kanpur Dehat is not only illegal, irrational, excessive but also illusionary. Consequently, the amount of damages awarded against petitioner cannot be sustained. Attention of Court was then invited to the provisions contained in Section 67-A of U.P. Revenue Code, 2006. For ready reference, the same is reproduced hereinunder:- "67A. Certain house sites to be settled with existing owners thereof. - (1) If any person referred to in sub-section (1) of Section 64 has built a house on any land referred to in Section 63 of this Code, not being land reserved for any public purpose, and such house exists on the November 29, 2012, the site of such house shall be held by the owner of the house on such terms and conditions as may be prescribed. (2) Where any person referred to in sub-section (1) of Section 64, has built a house on any land held by a tenure holder (not being a government lessee) and such house exists on November 29, 2000, the site of such house, notwithstanding anything contained in this Code, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Explanation. - For the purpose of sub-section (2), a house existing on November 29, 2000, on any land held by a tenure holder, shall, unless the contrary is proved, be presumed to have been built by the occupant thereof and where the occupants are members of one family by the head of that family.]" 11. On the basis of above, the learned counsel for petitioner submits that the provisions contained in Section 67-A of U.P. Revenue Code, 2006 is a beneficial piece of legislation. Therefore, the authorities concerned before proceeding to pass an order of eviction against a person in terms of Section 67 of U.P. Revenue Code, 2006 are under a legal obligation to consider as to whether such illegal occupant is entitled to the benefit of Section 67-A of U.P. Revenue Code, 2006 or not. No attempt has been made by Respondent 4, Tehsildar/Assistant Collector (First Class), TehsilMaitha, District-Kanpur Dehat in this regard. Admittedly, the petitioner is in illegal possession and occupation over an area of 0.0072 hectares i.e. 72 sq. mtrs. Attention of the Court was then invited to the sale deed dated 12.04.2018 which was executed by Kailash Nath Dwivedi in favour of petitioner for an area of 113.7 sq. mtrs. of Survey Plot No. 533. With reference to above, he, therefore, contends that since petitioner is in possession and occupation over an area which is below 200 sq. mtrs., therefore, petitioner is clearly entitled to the benefit of the provisions contained in Section 67-A of U.P. Revenue Code, 2006 read with Section 64. However, neither respondent 4 nor the respondent 2 have adverted to this aspect of the matter. mtrs., therefore, petitioner is clearly entitled to the benefit of the provisions contained in Section 67-A of U.P. Revenue Code, 2006 read with Section 64. However, neither respondent 4 nor the respondent 2 have adverted to this aspect of the matter. Consequently, the order passed by respondent 4 stands vitiated and therefore, liable to be quashed with a direction to Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, District-Kanpur Dehat to redecide the matter after taking into consideration the provisions of Section 67-A of U.P. Revenue Code, 2006 and in case, the proceedings are decided against the petitioner then the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016 are also adhere to before passing an order of eviction against petitioner. 12. It is then submitted by the learned counsel for petitioner that the appellate authority i.e. respondent 2, District Magistrate/Collector, Kanpur Dehat dismissed the appeal filed by the petitioner without adverting to aforesaid illegality in the order passed by Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, District-Kanpur Dehat. He, therefore, submits that the appelalte authority has simply passed an order of affirmance by dismissing the appeal filed by the petitioner. Consequently, the appellate authority has failed to exercise the jurisdiction vested in it diligently and therefore, the order passed by the appellate authority is not only illegal but also arbitrary. 13. Learned Standing Counsel on the other hand has opposed the present writ petition. He submits that the dispute relatese to Survey Plot No. 533 area 0.166 hectares, which is recorded as Naveen Parti in the revenue records. As such, petitioner has no right to be in possession and occupation over Gaon Sabha land. It is then submitted that petitioner has purchased part of Survey Plot No. 533 by means of registered sale deed 12.04.2018. However, since the land in dispute is recorded as Naveen Parti, therefore, the sale deed executed in favour of petitioner shall not grant any right, title and interest in favour of petitioner in the land in dispute as no person can pass on a better title then what he has. He, therefore, submits that since no title has passed on in favour of petitioner in terms of aforementioned sale deed, therefore, petitioner is in illegal possession and occupation over Gaon Sabha land. He, therefore, submits that since no title has passed on in favour of petitioner in terms of aforementioned sale deed, therefore, petitioner is in illegal possession and occupation over Gaon Sabha land. However, the learned Standing Counsel could not dislodge the submissions urged by the learned counsel for petitioner with regard to the illegality to the amount of damages imposed against the petitioner being a derogation of the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016 and further the failure on the part of respondents 4 and 2 is not considering the provisions of Section 67-A of U.P. Revenue Code, 2006 with reference to petitioner before passing an order of eviction/damages against petitioner. 14. Having heard, the learned counsel for petitioner, the learned Standing Counsel for Respondents 1,2,3,4, Mr. H.N. Singh, the learned counsel representing respondent 5, Gram Sabha and upon perusal of record, this Court finds that the dispute relates to Survey Plot No. 533, area 0.166 hectares, which is recorded as Naveen Parti in the revenue records. The petitioner was found to be in illegal possession and occupation over an area of 113.70 sq. mtrs. of the land in dispute. Learned counsel for petitioner could not establish from the record the basis of possession of petitioner over the land in dispute, the sale deed relied upon by the petitioner in support of his case that he is the owner in possession of the land in dispute is misconceived inasmuch as, the land in dispute is recorded in the name of Gaon Sabha. In view of above, the vendor of the sale deed had no transferable interest/right in the land in dispute. As such, no transfer of right, title and interest regarding the land in dispute has taken place pursuant to the sale deed relied upon by the petitioner. In view of above, the petitioner is clearly in illegal possession and occupation over part of the land in dispute. Consequently, no illegality can be said to have been committed by the authorities below in directing eviction of the petitioner from the land in dispute. However, the Court further finds that damages have been awarded against the petitioner without considering the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016, on what basis, respondent 3, came to the conclusion that petitioner has caused damages to the tune of Rs. 23,760/- is conspicuous by its absence. However, the Court further finds that damages have been awarded against the petitioner without considering the mandatory provisions of Rule 67(4) of U.P. Revenue Code Rules, 2016, on what basis, respondent 3, came to the conclusion that petitioner has caused damages to the tune of Rs. 23,760/- is conspicuous by its absence. In view of above, the learned counsel for petitioner is right in submitting that the amount of damages awarded against petitioner by respondent 4 is not only illegal, unjust and arbitrary but also illusionary. The Court further finds that the appellate authority has dismissed the appeal without adverting the aforesaid aspect of the matter. Apart from above, there is another aspect of the matter, which has weighed with the Court. Admittedly, petitioner is in illegal possession and occupation over an area of 72 sq. mtrs. Moreover, the land in dispute is recorded as Naveen Parti and therefore, the same is not a public utility land covered under Section 77 of U.P. Revenue Code, 2006. The provisions contained in Section 67-A of U.P. Revenue Code, 2006 are beneficial in nature and therefore, the burden was upon the authorities themselves to examine as to whether benefit can be granted to the petitioner in terms of section 67-A of U.P. Revenue Code, 2006. Be that as it may, since the amount of damages awarded against the petitioner is illusionary, therefore, the orders impugned cannot be sustained and are therefore, liable to be quashed. 15. Consequently, the present writ petition succeeds and is liable to be allowed. 16. It is accordingly allowed. 17. The impugned order order dated 04.08.2023 passed by Respondent 4, Tehsildar/Assistant Collector (First Class), TehsilMaitha, District-Kanpur Dehat in Case No. 1679 of 2022 (Gaon Sabha v. Lakshmi Devi), under Section 67 of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) as well as the order dated 16.11.2023 passed by the appellate authority i.e. Respondent 2, District Magistrate/Collector, Kanpur Dehat in Case No. 1117 of 2023 (Lakshmi Devi v. Gaon Sabha), under Section 67(5) of U.P. Revenue Code, 2006 (Annexure-2 to the writ petition) are hereby quashed. 18. The matter shall stand remanded before Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, DistrictKanpur Dehat shall decide the same after giving notice and opportunity of hearing to the petitioner within a period of 3 months from the date of production of certified copy of this order. 19. 18. The matter shall stand remanded before Respondent 4, Tehsildar/Assistant Collector (First Class), Tehsil-Maitha, DistrictKanpur Dehat shall decide the same after giving notice and opportunity of hearing to the petitioner within a period of 3 months from the date of production of certified copy of this order. 19. It shall be opene to the petitioner to plead the grant of benefit in terms of Section 67-A of U.P. Revenue Code, 2006.