Court No. - 39
Case :- WRIT - C No. - 37819 of 2019 Petitioner :- Hariom Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- R.P.S. Chauhan Counsel for Respondent :- C.S.C.,Amresh Singh,Nagendra Nath Mishra
Hon'ble Ashwani Kumar Mishra,J.
This petition arises out of order of eviction/ removal of unauthorized encroachment dated 25.07.2019, as affirmed with dismissal of petitioner's appeal by the Collector, Buduan on 04.10.2019. These orders are annexed as annexure No. 14 and 18 to the writ petition and have been impugned in this petition.
At the outset it would be worth noticing that while proceedings for removal of unauthorized encroachment under section 67 of U.P. Revenue Code, 2006 were pending orders were passed by this Court in PIL Petition No. 4634 of 2018 to expedite the proceedings whereafter a contempt petition has also been filed. A recall application has thereafter been filed in the PIL petition and notices have been issued to the petitioner, who filed the PIL petition. Those proceedings need not be referred to at any greater length inasmuch as proceedings under Section 67 of U.P. Revenue Code, 2006 would have to be decided on its own merit. Learned counsel for the petitioner, however, submits that it is only on account of orders passed in the PIL petition and the contempt petition filed thereafter that the authorities have proceeded in undue hot haste to pass orders without any just adjudication on merits.
Dispute in the present writ petition relates to a part of plot no. 271 (kha) situated in Village Vikrampur Charsaura, Post Rudain, Tehsil Bisauli, District Budaun. Plot No. 271 appears to be a big plot and has been divided into different parts including plot no. 271(ka) and 271(kha). It appears that there is no demarcation of plot in the revenue map. Plot no. 271(ka) is recorded as Aabadi while plot no. 271(kha) is recorded as school. Proceedings were initially started against the petitioner for eviction under section 122(B) of the U.P. Zamindari Abolition and Land Reforms Act on the ground that school land has been encroached upon by the petitioner. The proceedings ultimately resulted in an order of eviction passed against the petitioner on 04.08.2012. This order was challenged by petitioner in a revision before the Collector. The revision was allowed and the matter was remitted back for a fresh consideration of cause. The revisional order dated 29.02.2016 is relevant and its operative portion is reproduced hereinafter:-
^^eSus i=koyh dk Hkyh Hkkafr v/;;u fd;kA i=koyh ds v/;;u ls Li"V gS fd iz'uxr Hkwfe xkVk la0 271 [k@ 0-203 gs0 xzke lekt dh lEifRr gS blesa orZeku esa Ldwy lapkfyr gSA mDr xkVs esa ls 0-014 gs0 ij foi{kh }kjk edku cukdj voS/k dCtk fd;k x;k gSA voj U;k;ky; us vius vkns'k esa ;g Li"V ugha fd;k gS fd foi{kh }kjk edku cuk;s gq;s fdrus o"kZ gks x;s gS tcfd ys[kiky us vius c;kuksa esa dgk gS fd izfroknh dk edku iqjkuk gS rFkk dqN yksxksa us crk;k fd budk dCtk 5 o"kZ ls gS rFkk dqN yksxks us crk;k fd budk dCtk pdcUnh ls iwoZ ls gSA pdcUnh vfHkys[kksa ds vuqlkj xkVk la0 271d@0-063 gs0 esa vkcknh rFkk 271[k@0-203 gs0 esa Ldwy vafdr gS tcfd ys[kiky }kjk vius uD'kk utjh esa xkVk la0 271 eas d ,oa [k dks i`Fkd i`Fkd iznf'kZr ugh fd;k x;k gSA ys[kiky us vius c;ku es ;g Hkh Li"V ugha fd;k gS fd mlus fof/k vuqlkj iSekb'k djds fjiksVZ dh gS cfYd mlus dgk gS fd ekSds ij tkap dj fjiksVZ dh gSA voj U;k;ky; }kjk voS/k dCts dh vof/k ds lEcU/k esa vkns'k esa dksbZ mYys[k ugha fd;k x;k gSA vkns'k djus ls iwoZ ;g lqfuf'pr djuk pkfg, Fkk fd uD'kk utjh esa xkVk la[;k 271d ,oa xkVk la[;k 271 [k vyx vyx iznf'kZr gS ;k ugh] Ldwy dk {ks=Qy iwjk gS vFkok ugh ijUrq voj U;k;ky; }kjk ,slk ugh fd;k x;k gSA voj U;k;ky; }kjk ikfjr vkns'k fof/k lEer ugh gS fujLrdj izdj.k voj U;k;ky; dks iqu% lquokbZ gsrq izfrizsf"kr fd;k tkuk vko';d gSA vr% rnuqlkj fuxjkuh vkaf'kd #i ls Lohdkj dj voj U;k;ky; }kjk ikfjr vkns'k fnukad 04-08-2012 fujLr dj izdj.k voj U;k;ky; dks bl funsZ'k lfgr izfrizsf"kr fd;k tkrk gS fd fu;ekuqlkj nks LFkk;h fcUnqvksa ls fof/kor iSekb'k djk dj eki lfgr utjh uD'kk rS;kj dj iz'uxr Hkwfe ij foi{kh dk voS/k dCtk gksus vFkok u gksus ,oa Ldwy dk {ks=Qy iwjk gksus ds lEcU/k esa fu/kkZj.k dj] mHk;i{kksa dks lk{; ,oa lquokbZ dk iw.kZ volj iznku djrs gq;s iqu% xq.k & nks"k ds vk/kkj ij vkns'k ikfjr fd;k tk;sA vkns'k dh izfr lfgr voj U;k;ky; dh i=koyh okil dh tk;sA bl U;k;ky; dh i=koyh vko';d dk;Zokgh mijkUr nkf[ky nQ~rj gksA^^ The order passed in revision came to be challenged before this Court in Writ Petition No. 36847 of 2016, and the petition has been dismissed on 09.08.2016 relying upon a previous order of this Court dated 18.07.2016 wherein also the same order of Collector was assailed. Order dated 09.08.2016, passed in Writ Petition No. 36847 of 2016 and 36848 of 2016, is extracted hereinafter:-
“Heard Shri R.P.S. Chauhan, learned counsel for the petitioner, Shri Amresh Singh, learned counsel for the respondent No. 4-Land Management Committee of Gaon Sabha Vikrampur Charsaura, Budaun and learned Standing Counsel appearing for the State-respondents.
These two writ petitions are both directed against the same order dated 29.2.2016 passed by the respondent No. 2-Collector, Budaun. These petitions have, therefore, been heard and are being decided by a common order.
Yet, another Writ Petition No. 32343 of 2016 (Ramesh vs. State of U.P. and 3 others) had earlier been filed challenging the same order, which is impugned in these writ petitions. The said Writ Petition No. 32343 of 2016 was dismissed vide order dated 18.7.2016 and the impugned order dated 29.2.2016, which is an order of remand, was affirmed.
Since, the order impugned in these two writ petitions has also been affirmed by me vide order dated 18.7.2016 passed in Writ Petition No. 32343 of 2016, these two writ petitions are also liable to be dismissed for the reasons given in my order dated 18.7.2016.
These writ petitions are, therefore, dismissed.”
“Heard Sri R.P.S. Chauhan, learned counsel for the petitioner and Sri Amresh Singh, who has accepted notice on behalf of respondent no.4, Land Management Committee as also the learned Standing Counsel for the State- respondents.
The petition arises out of proceedings under Section 122-B of the U.P. Zamindari abolition and Land Reforms Act, wherein the Tehsildar directed eviction of the petitioner from portion of plot no.271 Kha vide order dated 04.08.2012.
Aggrieved by the aforesaid order, the petitioner preferred a revision which had allowed on 29.02.2016 and the matter has been remanded back for a fresh decision.
The contention of the learned counsel for the petitioner is that the plot in question is a very big one and that his eviction is sought from a very small portion thereof. Although, part of this large plot has been reserved for a school during the consolidation operations, in the map, the area which has been so reserved is not demarcated. It is therefore not clear where the area reserved actually lies; the proceedings under Section 122-B of the Act therefore cannot be continued because any correction/ demarcation in the map can only be ordered by the Collector and not by the Tehsildar. He further claims that the land in question is his ancestral land and he is wrongly sought to be evicted therefrom.
In my considered opinion, the submissions that have been made for devoid of substance. I do not agree with the submission of learned counsel for the petitioner that eviction proceedings under Section 122-B of the Act cannot be initiated or maintained only on the ground that the map has not been rightly prepared. The question as to the area of the plot in question which has been reserved for a school during consolidation operations can easily be determined from the orders that have been passed by the Consolidation Authorities themselves.
In so far as the submission that the land in question is the ancestral land of the petitioner or his ancestral abadi cannot be accepted because learned counsel for the petitioner has admitted that no such claim was raised by him during the consolidation operations which have necessarily intervened because it is his admitted case that portion of plot in question has been reserved for a public purpose during consolidation operations.
Since the submissions of learned counsel for the petitioner have been repelled, I do not find any illegality in the proceedings drawn against the petitioner for his eviction under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act. The order of remand also calls for no interference.
The writ petition is accordingly dismissed.”
It is clear with the dismissal of writ petition that the directions contained in the order of Collector, Budaun dated 29.02.2016 has attained finality. After the matter has been remitted back to the 3rd respondent certain exparte orders were initially passed which have all been recalled. Ultimately the proceedings have been concluded with passing of the order dated 25.07.2019, which is first order impugned in the writ petition. This order records that in terms of the order passed by the Collector a team of revenue officials under the Naib Tehsildar, Bisauli has inspected the spot and has submitted its report on 03.04.2019 as per which the petitioner is found to have encroached upon the land earmarked for school in the revenue records. This report is Annexure No. 15 to the writ petition.
Learned counsel for the petitioner submits that the report dated 03.04.2019 is exparte and that no date was fixed or intimated to the parties before the alleged inspection was undertaken. It is also stated that the directions contained in the order of Collector have not been complied with inasmuch as fixed points have not been determined and the position on spot has not been ascertained with reference to the revenue records. Contention of learned counsel for the petitioner that land ear-marked for school has been encroached from the other side is also an aspect which could not be examined at the time of inspection since the petitioner was not associated with the inspection.
This Court finds substance in the contention advanced on behalf of the petitioner inasmuch as the report dated 03.04.2019 does not refer to issuance of any notice to the parties or fixing of any date in the matter. None of the affected persons apparently were present when this report has been prepared. The report is absolutely silent about issuance of notice or presence of the parties at the spot. In a case where demarcation is required to be carried out as per the direction of the Collector in the background that plot no. 271(ka) is recorded as Aabadi and plot no. 271(kha) is recorded in the name of school, it was imperative that parties be put to notice of the date of inspection and that the inspection itself be carried out in their presence. The specific direction of the Collector otherwise does not appear to have been specifically taken note of while carrying out the physical inspection. It is this report which is made the basis for passing of the first order under challenge. Since this Court finds that the inspection itself has not been carried out in accordance with law, therefore, the consequential order of the 3rd respondent dated 25.07.2019 is not liable to be sustained. The appellate authority also while endorsing the orders of the 3rd respondent has not adverted to this aspect of the matter. This Court finds that order of the Collector dated 29.02.2016 which has otherwise attained finality with dismissal of writ petition filed against it, has not been carried out in true spirit. Consequently the orders impugned in the present writ petition cannot be sustained and are quashed. Matter stands remitted to the 3rd respondent. The petitioner shall appear before the Assistant Collector i.e. respondent no.3 along with certified copy of this order on 10th December, 2019. A date for inspection would be fixed with due notice to the aggrieved persons after a week. The inspection would be carried out keeping in view the orders passed by the Collector on 29.02.2016. The parties shall have a right to submit their objections to the inspection within a week and thereafter the 3rd respondent shall pass a fresh reasoned order, within a period of two months. This order has been passed in the presence of learned Standing Counsel, who appears for respondent no. 1, 2 and 3 and Sri Amresh Singh, learned counsel for respondent No.4. The Caveator has also been heard through Sri Nityanand Mishra, Advocate holding brief for Sri Nagendra Nath Mishra.
Order Date :- 27.11.2019 Abhishek Singh