Ram Bhawan Yadav v. State of U.P. and 6 Others

Court No. - 51 Case :- WRIT - C No. - 36396 of 2023 Petitioner :- Ram Bhawan Yadav Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Babu Ram Yadav , Arun Yadav Counsel for Respondent :- C.S.C. , Sudhir Bharti Hon'ble Chandra Kumar Rai,J.

¶1Heard Mr. Babu Ram Yadav, learned counsel for the petitioner, Mr. J. N. Maurya, learned Chief Standing Counsel for the State-respondents and Mr. Sudhir Bharti, learned counsel for respondent Nos.6 and 7 Land Management Committee and Gram Panchayat.

¶2The instant petition has been filed against the order of Tehsildar dated 11.10.2023 passed in the proceeding under Section 67 of U.P Revenue Code, 2006 in respect to the plot No.2725 area 0.0200 hectare, which is recorded as Khalihan.

¶3Learned counsel for the petitioner submitted that authorities are adamant to demolish the construction of the petitioner, as such petitioner has filed instant petition without availing remedy of appeal under Section 67 (5) of U.P. Revenue Code, 2006. He further submitted that even on merit, the impugned order cannot be maintained, but without affording proper opportunity of hearing as well as without making proper survey and demarcation, the order for ejectment and damages has been passed against the petitioner. He further submitted that interim protection be granted during pendency of appeal / revision if the order under appeal and revision has serious civil consequences as held by this Court in the case reported in 2007 (102) RD 498 Ali Sher vs. State of U.P. through Collector Bijnor and others.

¶4On the other hand, Mr. J.N. Maurya, learned Chief Standing Counsel for the State-respondent and Mr. Sudhir Bharti, learned counsel for respondent Nos.6 and 7-Land Management Committee/ Gaon Sabha submitted that impugned order is appealable under Section 67 (5) of U.P. Revenue Code, 2006 as such writ petition is liable to be dismissed on the ground of alternative remedy. They further submitted that land in dispute is recorded as khalihan, as such no interference is required in the matter.

¶5I have considered the arguments advanced by the learned counsel fora the parties and perused the record.

¶6There is no dispute about the fact that order for ejectment and damages has been passed by Tehsildar against the petitioner vide order dated 11.10.2023. There is no dispute about the fact that order is appealable under Section 67 (5) of U.P. Revenue Code, 2006.

¶7This Court in the case reported in 2023 (1) ADJ 154 Rishipal Singh Vs. State of U.P. and 3 Others has considered the scope of Section 67, 67-A as well as 67-5 of U.P. Revenue Code, 2006. Paragraph No. 74 of the judgment rendered in Rishipal Singh (Supra) is relevant for consideration which is 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 67A.

(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.

¶8This Court in the case of Ali Sher (Supra) has held that the interim protection be granted during pendency of appeal / revision if the order under appeal and revision has serious civil consequences. Paragraph Nos.4 & 5 of the judgment is relevant which is as follows: "4. It is well settled that once an appeal or revision is entertained by a higher Court against an order having civil consequences stay normally should be granted to avoid swinging pendulum unless the Court for the reasons to be recorded finds that there is no case for grant of stay as observed by the Hon'ble Apex Court in the case of Mool Chand v. Raza Buland Sugar Industries."

¶5Considering the facts and circumstances, impugned order dated

16.11.2006 is hereby quashed. Writ petition stands allowed. Appellate Court is directed to disposal of the appeal of petitioner in accordance with law as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order before him and till the disposal of appeal as directed above, parties shall maintain status quo with regard to nature and possession over the land in dispute."

¶9In view of the remedy of appeal against the order impugned passed by the Tehsildar, the writ petition is disposed of finally directing the petitioner to file an appeal before respondent No.2/ Collector against the order impugned dated 11.10.2023 passed by the Tehsildar within a period of two weeks from today. If the appeal is filed within the aforesaid period, the same shall be registered and disposed of in accordance with ratio of law laid down in Rishipal Singh (Supra).

¶10It is further directed that in view of ratio of law laid down in Ali Sher (Supra), the order dated 11.10.2023 passed by Tehsildar for demolition and damages shall not be given affect till the disposal of petitioner's appeal under Sectin 67 (5) of U.P. Revenue Code, 2006 as indicated above.

¶11Certified copy of the order be given to learned counsel for the petitioner today as per rules. Order Date :- 16.10.2023 PS* High Court of Judicature at Allahabad