Research › Search › Judgment

Allahabad High Court · body

2025 DIGILAW 99 (ALL)

Mahendra Pal v. State of U. P.

2025-01-23

CHANDRA KUMAR RAI

body2025
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard learned counsel for the petitioners, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sher Bahadur Singh, learned counsel for Gaon Sabha. 2. With the consent of learned counsel for the parties the writ petition is heard finally without inviting counter affidavit. 3. The brief facts of the case are that petitioners' mother was recorded over plot No. 236 area 1/1 situated at village-Behati, Dehjagir Tehsil & District Bareilly. An order for ejectment and damages has been passed by Tehsildar Bareilly against the petitioners on 27.07.2024 in the proceeding under Section 67 of U.P. Revenue Code, 2006. An appeal under Section 67 (5) of U.P. Revenue Code, 2006 filed by petitioner against the order dated 27.07.2024 has been dismissed by Collector under the impugned order dated 15.10.2024. Hence this writ petition on behalf of petitioner for following relief:- "a. Issue a writ, in the nature of certiorari to quash the impugned order dated 27.07.2024 passed by Assistant Collector/Tehsildar (Sadar) Bareilly, in Case No. 395 of 2023 under Section 67 of U.P. Revenue Code and order dated 15.10.2024 passed by District Magistrate/Collector Bareillyu in Appeal No. 1497 of 2024 under Section 67 (5) of U.P. Revenue Code passed by respondent No. 2 & 3 in the interest of Justice. b. To issue a writ in the nature of mandamus commanding upon the respondents not to dispossess the petitioner from the land in dispute and not take any coercive action during the pendency of this petition." 4. Learned counsel for the petitioners has submitted that without affording proper opportunity of hearing to the petitioner, the order for ejectment and damages has been passed by Tehsildar in an arbitrary manner. He further submitted that the damages has been imposed without any urisdiction in respect to plot which is recorded as naveen parti. He further submitted that the petitioner has taken ground in appeal that petitioner is in possession since his ancestral and the order for ejectment and damages of Rs. 10,45,000/- has been passed without any basis. He further submitted that the damages has been imposed without any urisdiction in respect to plot which is recorded as naveen parti. He further submitted that the petitioner has taken ground in appeal that petitioner is in possession since his ancestral and the order for ejectment and damages of Rs. 10,45,000/- has been passed without any basis. He further submitted that the petitioner has taken ground in appeal that petitioners are in possession of their bhumidhari land since the time of their ancestor and the order for ejectment/damages has been passed without affording opportunity of hearing to the petitioners as well as the provisions contained under the U.P. Revenue Rules Code & Rules framed thereunder has been violated. He placed reliance upon judgment of this Court reported in Rishipal Singh Vs. State of U.P. and Others , 2023 (1) ADJ 154 in support of his argument. 5. On the other hand, learned Standing Counsel for the State and counsel for Gaon Sabha submitted that no interference is required against the impugned orders passed by respondent Nos. 2 & 3. They submitted that the plot in dispute is recorded as naveen parti as such, there is no illegality in the impugned orders. 6. I have considered the argument advanced by learned counsel for the parties and perused the record. 7. There is no dispute about the fact that the order for ejectment and damages has been passed on 27.07.2024 by Tehsildar against the petitioners and the same has been maintained in appeal. 8. 6. I have considered the argument advanced by learned counsel for the parties and perused the record. 7. There is no dispute about the fact that the order for ejectment and damages has been passed on 27.07.2024 by Tehsildar against the petitioners and the same has been maintained in appeal. 8. In order to appreciate the controversy involved in the matter perusal of Rule-67 (2) and 67 (4) of U.P. Revenue Code Rules 2016 will be relevant for perusal which are as under:- U.P. Revenue Code Rules 2016 "67 (2) The Assistant Collector shall thereafter proceed to take action under section 67(2) and for that purpose issue a notice to the person concerned in R.C. Form-20 to show cause as to why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land." "67 (4) The amount of damages sought to be recovered and the expenses of execution of the order shall be specified in such notice, which shall be determined in the following manner:- (a) In the case of damage or misappropriation, the amount of damages shall be assessed at the prevailing market rate. (b) In the case of unauthorized occupation of any land, the amount of damages shall be the amount equal to the five percent of the market value of the land calculated at the circle rate fixed by the Collector for each year of unauthorized occupation. (c) The expenses of execution of the order shall be assessed on the basis of one day's pay and allowances payable to the staff deputed." 9. Perusal of the order dated 27.07.2024 passed by Tehsildar fully demonstrate orders has been passed in ex-parte manner as well as in violation of the provision contained under Rule- 67 (4) of the U.P. Revenue Code Rules 2016. 10. This Court in the case of Rishipal Singh (supra) has laid down the principle for deciding the proceeding under Section-67 of U.P. Revenue Code 2006 as well as appeal under Section-67 (5) of U.P. Revenue Code 2006. Paragraph No. 74 of Rishipal Singh (supra) will be also relevant for perusal which are as under:- "74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67 , 67A and 26 of the U.P. Revenue Code. Paragraph No. 74 of Rishipal Singh (supra) will be also relevant for perusal which are as under:- "74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67 , 67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager: (i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis. (ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of sub-rule 1 Rule 67. (iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted alongwith RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above. (iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved. (v) In the event, objection includes a plea of statutory protection/ benefit under Section 67 -A, the authority should invite the objection from the Gaon Sabha, and will decide the same alongwith the matter under Section 67 , without requiring aggrieved party to move separate application under Section 67 -A. (vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him. (vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner. (viii) In case of appeal under Section 67 (5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed alongwith interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67 -A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant. (ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation." 11. Petitioners' case is that they are in possession of this bhumidhari Plot No. 236 as such there should be proper consideration of petitioner's case in the light of the provision contained under U.P. Revenue Code 2006 as well as Rules framed thereunder as quoted above. The imposition of damages should be according to the provision contained under Rule 67 (4) of U.P. Revenue Code Rules, 2016 subject to the order of ejectment, if any, as such impugned orders cannot be sustained in the eye of law. 12. Considering the entire facts and circumstance of the case the impugned order dated 27.07.2024 passed by respondent No. 3/ Tehsildar and 15.10.2024 passed by respondent No. 2/Collector are liable to be set aside and the same are hereby set aside. The writ petition is allowed and the matter is remanded back before the respondent No. 3, Assistant Collector/Tehsildar Sadar-Bareilly, to restore the proceeding under Section 67 of the U.P. Revenue Code, 2006 to its original numbers and decide the same afresh after affording opportunity of hearing of both the parties, considering the ratio of law laid down by this Court in Rishipal Singh Vs. State of U.P. and Others , 2023 (1) ADJ 154 , expeditiously, preferably, within a period of three months from the date of production of a certified copy of this order before him.