Rekha Kapoor and others v. State of U.P. and others)

3. Learned counsel for the applicants submits that applicant is the owner of the property in question. He also submits that private respondent with the collusion of State authorities, moved an application under Section 24 of U.P. Revenue Code, in which order was also passed by S.D.M., Sadar Lucknow and the said order was challenged before this Court in Writ C No.3124 of 2023.

4. The order dated 20.4.2023 passed in Writ C No.3124 of 2023 reads as under:- Shri Ravindra Pratap Singh, Advocate, filed Vakalatnama today on behalf of opposite party No.8 is taken on record. Heard. By means of the present petition, the petitioner is assailing the validity of the order(s) dated 31.12.2022 and 20.03.2023 passed by opposite party No.3 in Case No.14091 of 2022, (Rekha Kapoor and others vs. State of U.P. and others). Shri Hemant Kumar Pandey, learned counsel for the State stated that the statutory remedy is available to the petitioner by preferring an application for recall of order. In response, Shri Sudeep Seth, Advocate, assisted by Shri Manoj Kumar Dubey, learned counsel for the petitioner says that no doubt that the remedy as indicated by State Counsel is available, however, the present petition has been filed on the ground that the land situates in the urban area and the provisions of U.P. Revenue Code of 2006 would not attract in the instant case, as such the opposite party No.3- Sub- Divisional Magistrate, Sadar, Lucknow under Section 24 was not having any jurisdiction to pass the order on an application under Section 24 of the Code of 2006 (in short "Code of 2006"). The order passed therein is wholly without jurisdiction. In nutshell, this is a case of inherent lack of jurisdiction of the opposite party No.3- Sub-Divisional Magistrate, Sadar, Lucknow. As such the petitioner has directly approached this Court by means of the present petition. This Court finds that matter requires consideration. Accordingly, on the aforesaid aspect of the case, prior to issuance of notice, this Court is of the view that matter be heard in the next week. List/put up this case on 27.04.2023. Learned counsel for the parties shall come prepare on the issue aforesaid. Till the next date of listing, the operation and implementation of the impugned order shall remain stayed.

5. Learned counsel for the applicants further submits that F.I.R. was also lodged against the applicants, in which, charge sheet was submitted by the Investigating Officer in the most mechanical manner without considering the evidences provided by the applicants. He also submits that charge sheet was challenged before this Court in Application U/S 482 No.9971 of 2024, in which, proceeding was stayed by this Court vide order dated 19.12.2024.

6. The order dated 19.12.2024 passed in Application U/S 482 No.9971 of 2024 is as under:-

1. On 04.12.2024, following order was passed: "1. Vakalatnama filed by Sri Ratnesh Chandra, Advocate & Sri Anurag Kishore, Advocate on behalf of the private respondent is taken on record. 2. Heard learned counsel for the applicant, learned counsel for the private respondent and learned A.G.A. for the State. 3. The instant application is filed with the prayer to quash the entire proceeding of Case No.65709 of 2023 (State Vs. Sushil Kumar Agrawal & Ors.), arising out of impugned charge sheet No.01, dated 23.4.2023 filed by the Investigating Officer in Case Crime No.0028/2023, under Sections 447, 504, 506 & 120-B I.P.C., Police Station Madeyganj, District Lucknow. 4. On 26.11.2024, following order was passed:- 1. Supplementary affidavit filed today is taken on record. 2. Vakalatnama filed by Sri Rajesh Kumar, Advocate on behalf of opposite party no.2 is taken on record. 3. On 22.11.2024 following order was passed:- "1. List this case on 26.11.2024 at 11:30 A.M. 2. District Magistrate, Lucknow is directed to ensure the production of complete record related to the Case No.14091 of 2022 (Rekha Kapoor & Ors. Vs. State of U.P. & Ors.) under Section 24 of U.P. Revenue Code, 2006 passed by Mr. Naveen Chandra, S.D.M., Sadar, Lucknow vide order dated 31.12.2022, before this Court. 3. In the meantime, instructions be also placed by S.H.O., Police Station - Madeyganj, Lucknow. 4. Senior Registrar of this Court is directed to communicate this order to the District Magistrate, Lucknow forthwith for necessary compliance." 4. In pursuance of aforesaid order, Sri Sharnendu Singh, Naib Tehsildar, Sadar, Lucknow is present along with record of Case No.14091 of 2022, under Section 24 of U.P. Revenue Code, 2006; Rekha Kapoor vs. State of U.P. and others. A specific question has been asked from him that as to whether the proceedings under Section 24 of U.P.Revenue Code, 2006 can be initiated for the core area of municipal corporation to which he categorically denied and informed that proper remedy is civil suit. 5. The record placed by the Officer reveals that one undated application along with unfilled affidavit of Rakha Kapoor, wife of late Prem Kapoor, resident of B-604, Suresh Smriti, Prathmesh Complex Meera Desai Road in front of country club, Andheri West, Mumbai, Maharashtra was placed on 14.04.2022 before the Sub Divisional Officer, Sadar, Lucknow under Section 24 of U.P. Revenue Code, 2006 for demarcation of gata nos.358/1 rakba 0.0320 hectare, khasra no.360/1 rakba 0.1530 hectare, khasra no. 361/1M rakba 0.2320 hectare, Ahibaranpur, Tehsil Sadar, Lucknow. The Sub-Divisional Officer forwarded the said application to the Revenue Inspector of the area in question for submitting his report within fifteen days whereupon notice was issued to Rekha Kapoor, w/o Prem Kapoor, Vishal Kapoor and Akshay Kapoor, s/o late Prem Kapoor, r/o B-604, Suresh Smriti, Prathmesh Complex Meera Desai Road in front of country club, Andheri West, Mumbai. In pursuance of the same, the Revenue Inspector forwarded the report of spot inspection dated 27.06.2022 mentioning that the applicant of the said application as well as other responsible persons were present on the spot. The report was submitted by the Revenue Inspector to the Sub-Divisional Officer, Sadar on 28.06.2022 with the conclusion that there is no sub division in the revenue map as the alleged gatas are situated in the dense core urban area, therefore, the demarcation proceedings under Section 24 of U.P. Revenue Code, 2006 are not feasible. 6. Learned counsel for the applicants submits that ignoring the said report, again only formal notice was issued to the applicants and thereafter inspection report dated 04.07.2022 was obtained by the Revenue Officer and conducted demarcation through ETS machine. It is vehemently submitted that a report dated 22.11.2022 was prepared by Mr. Shree Kant, Revenue Inspector, which was forwarded to Tehsildar with the observation that the said area is situated in the dense core population, and therefore, change of possession is not possible, even then, the final order was passed on 31.12.2022 by the Sub-Divisional Officer, Sri Naveen Chandra, Sadar, Lucknow by confirming the report dated 22.11.2022. Despite the aforesaid report of the Revenue Inspector dated 22.11.2022, possession was also taken by the Sub Divsional Officer and handed over to the private respondent, who immediately fixed the iron gate and raised boundary wall. 7. Further submission of learned counsel for applicant is that the property in question was recorded as nazul land. He has also submitted that gata nos.198/199 were recorded as nazul land and after freehold, it was purchased by one Sumer Chand Jain, who sold out the aforesaid plot having area 8970 sq ft to the applicants. It is further submitted that the applicants were in possession over the property in question, which was taken by the Sub-Divisional Officer as well as other police officials under the garb of aforesaid order of the Sub-Divisional Officer passed under Section 24 of U.P. Revenue Code. 8. He has next submitted that admittedly private respondent was the recorded tenure holder of gata no.358/1 area 5 biswansi (0.0032 hectare) but due to collusion with the revenue authorities in the revenue record, area was changed and the same has been mentioned as 0.032 hectare in place of 0.0032 hectare. It was also reported that the revenue authorities conducted the inquiry and the Naib Tehsildar, Kakori, Lucknow submitted the report dated 23.04.2024, which is annexed at page 33 of the supplementary affidavit filed today and thereafter with the association of police authorities excess possession was taken by the private respondent and thereafter the FIR in question was lodged. It is vehemently submitted that the charge sheet has been submitted by the Investigating Officer in the most mechanical manner and, therefore kind indulgence of this Court is necessary. 9. Learned A.G.A. as well as learned counsel for complainant have opposed the prayer of the applicant and submitted that in the real time khatauni, area of plot no. 358/1 is mentioned as 0.032 hectare. 10. The record placed by the Naib Tehsildar be kept in sealed cover. 11. List this case on 04.12.2024. 12. On the next date Sri Naveen Chandra, then Sub-Divisional Officer, Sadar, Lucknow shall appear before this Court and explain as to under what circumstances, he concluded the proceedings under Section 24 of U.P. Revenue Code, 2006. 13. Until further order of this Court, impugned proceedings shall remain stayed. 13. On the next date, the revenue record related to all disputed gatas be placed before this Court from the date of basic year upto the current date. 5. In pursuance of aforesaid order, Mr. Naveen Chandra, the then S.D.M., Sadar, Lucknow is present and he conceded this fact that no notice was issued to other recorded tenure holder adjoining to the boundary of the property in question and the report was sought from the Revenue Inspector. On the basis of report dated 28.6.2022 forwarded by Revenue Inspector, Mohibullapur, Lucknow, demarcation was not done but the record reveals that without giving any information to other recorded tenure holders of the adjoining property, demarcation through E.T.S. machine was conducted ignoring the aforesaid report of Revenue Inspector, thereafter, Tehsildar, Sadar, Lucknow also submitted a report dated 17.11.2022 with the observation that 'Kabza Parivartan' is not feasible. Thereafter, on the basis of report of Tehsildar, Sadar, Lucknow, dated 17.11.2022, order dated 31.12.2022 was passed. 6. It is evident from the record that certain photographs were annexed with the present application, in which, police officials like Ms. Manisha Singh, A.D.C.P., Lucknow, Ms. Neha Tripathi, A.C.P., Mr. Sunil Azad, S.H.O., Madeyganj, Lucknow are present on 31.3.2023. 7. Two weeks time is granted to learned counsel for the private respondent to file counter affidavit. 8. List this case on 19.12.2024 at 11:30 A.M. 9. Interim order, granted earlier, shall continue till the next date of listing. 10. Registry is directed to show the name of Sri Ratnesh Chandra, Advocate & Sri Anurag Kishore, Advocate as counsel for the private respondent in the cause list. 11. Original record related to the Case No.14091/2022 is returned to Mr. Shardendu Singh, Naib Tehsildar, Sadar, Lucknow. 12. Officer present today, need not to appear until further order. 13. Applicant as well as private respondent or her authorized shall appear before this Court. " 2. List this case on 13.01.2025. 3. In the meantime, learned counsel for the private respondent may file counter affidavit. 4. On the next date, Sub-Divisional Magistrate of area in question shall also file an affidavit and inform, as to whether, the area of plots in question have been corrected or not. 5. Interim order, if any, is extended till the next date of listing. 6. Parties present today need not to appear before this Court until further order.

7. Learned counsel for the applicant submits that private respondent filed an application under Section 145 Cr.P.C. with the collusion of the officials, in which, notice was issued and objection was filed by the applicants apprising the officials concerned that the proceeding is pending before this Court but the same was rejected in the most mechanical manner, therefore, indulgence of this Court is necessary.

8. Learned A.G.A. oppose the prayer of the applicant but he does not dispute this fact that proceeding related to the Section 24 of U.P. Revenue Code, 2006 challenged before this Court, in which, stay order was passed by this Court.

9. Considering the submissions of learned counsel for the parties, going through the contents of the application as well as other relevant documents, it is evident from the record that applicant is over the property in question and when the application under Section 145 Cr.P.C. was filed by the private respondent despite this fact that proceeding under Section 24 of U.P. Revenue Code was stayed by this Court, requires consideration. therefore, matter

10. Issue notice to the private respondent.

11. List this case on 17.3.2025.

12. The Sub Divisional Magistrate of area concerned is directed to file his personal affidavit that under what circumstances, knowing this fact that the proceeding is pending before this Court, objection of the applicant has not been considered in proper manner.

13. Until further order, impugned proceeding shall remain stayed. Order Date :- 13.1.2025 Gaurav/-

3. Learned counsel for the applicants submits that applicant is the owner of the property in question. He also submits that private respondent with the collusion of State authorities, moved an application under Section 24 of U.P. Revenue Code, in which order was also passed by S.D.M., Sadar Lucknow and the said order was challenged before this Court in Writ C No.3124 of 2023.

4. The order dated 20.4.2023 passed in Writ C No.3124 of 2023 reads as under:- Shri Ravindra Pratap Singh, Advocate, filed Vakalatnama today on behalf of opposite party No.8 is taken on record. Heard. By means of the present petition, the petitioner is assailing the validity of the order(s) dated 31.12.2022 and 20.03.2023 passed by opposite party No.3 in Case No.14091 of 2022, (Rekha Kapoor and others vs. State of U.P. and others). Shri Hemant Kumar Pandey, learned counsel for the State stated that the statutory remedy is available to the petitioner by preferring an application for recall of order. In response, Shri Sudeep Seth, Advocate, assisted by Shri Manoj Kumar Dubey, learned counsel for the petitioner says that no doubt that the remedy as indicated by State Counsel is available, however, the present petition has been filed on the ground that the land situates in the urban area and the provisions of U.P. Revenue Code of 2006 would not attract in the instant case, as such the opposite party No.3- Sub- Divisional Magistrate, Sadar, Lucknow under Section 24 was not having any jurisdiction to pass the order on an application under Section 24 of the Code of 2006 (in short "Code of 2006"). The order passed therein is wholly without jurisdiction. In nutshell, this is a case of inherent lack of jurisdiction of the opposite party No.3- Sub-Divisional Magistrate, Sadar, Lucknow. As such the petitioner has directly approached this Court by means of the present petition. This Court finds that matter requires consideration. Accordingly, on the aforesaid aspect of the case, prior to issuance of notice, this Court is of the view that matter be heard in the next week. List/put up this case on 27.04.2023. Learned counsel for the parties shall come prepare on the issue aforesaid. Till the next date of listing, the operation and implementation of the impugned order shall remain stayed.

5. Learned counsel for the applicants further submits that F.I.R. was also lodged against the applicants, in which, charge sheet was submitted by the Investigating Officer in the most mechanical manner without considering the evidences provided by the applicants. He also submits that charge sheet was challenged before this Court in Application U/S 482 No.9971 of 2024, in which, proceeding was stayed by this Court vide order dated 19.12.2024.

6. The order dated 19.12.2024 passed in Application U/S 482 No.9971 of 2024 is as under:-

1. On 04.12.2024, following order was passed: "1. Vakalatnama filed by Sri Ratnesh Chandra, Advocate & Sri Anurag Kishore, Advocate on behalf of the private respondent is taken on record. 2. Heard learned counsel for the applicant, learned counsel for the private respondent and learned A.G.A. for the State. 3. The instant application is filed with the prayer to quash the entire proceeding of Case No.65709 of 2023 (State Vs. Sushil Kumar Agrawal & Ors.), arising out of impugned charge sheet No.01, dated 23.4.2023 filed by the Investigating Officer in Case Crime No.0028/2023, under Sections 447, 504, 506 & 120-B I.P.C., Police Station Madeyganj, District Lucknow. 4. On 26.11.2024, following order was passed:- 1. Supplementary affidavit filed today is taken on record. 2. Vakalatnama filed by Sri Rajesh Kumar, Advocate on behalf of opposite party no.2 is taken on record. 3. On 22.11.2024 following order was passed:- "1. List this case on 26.11.2024 at 11:30 A.M. 2. District Magistrate, Lucknow is directed to ensure the production of complete record related to the Case No.14091 of 2022 (Rekha Kapoor & Ors. Vs. State of U.P. & Ors.) under Section 24 of U.P. Revenue Code, 2006 passed by Mr. Naveen Chandra, S.D.M., Sadar, Lucknow vide order dated 31.12.2022, before this Court. 3. In the meantime, instructions be also placed by S.H.O., Police Station - Madeyganj, Lucknow. 4. Senior Registrar of this Court is directed to communicate this order to the District Magistrate, Lucknow forthwith for necessary compliance." 4. In pursuance of aforesaid order, Sri Sharnendu Singh, Naib Tehsildar, Sadar, Lucknow is present along with record of Case No.14091 of 2022, under Section 24 of U.P. Revenue Code, 2006; Rekha Kapoor vs. State of U.P. and others. A specific question has been asked from him that as to whether the proceedings under Section 24 of U.P.Revenue Code, 2006 can be initiated for the core area of municipal corporation to which he categorically denied and informed that proper remedy is civil suit. 5. The record placed by the Officer reveals that one undated application along with unfilled affidavit of Rakha Kapoor, wife of late Prem Kapoor, resident of B-604, Suresh Smriti, Prathmesh Complex Meera Desai Road in front of country club, Andheri West, Mumbai, Maharashtra was placed on 14.04.2022 before the Sub Divisional Officer, Sadar, Lucknow under Section 24 of U.P. Revenue Code, 2006 for demarcation of gata nos.358/1 rakba 0.0320 hectare, khasra no.360/1 rakba 0.1530 hectare, khasra no. 361/1M rakba 0.2320 hectare, Ahibaranpur, Tehsil Sadar, Lucknow. The Sub-Divisional Officer forwarded the said application to the Revenue Inspector of the area in question for submitting his report within fifteen days whereupon notice was issued to Rekha Kapoor, w/o Prem Kapoor, Vishal Kapoor and Akshay Kapoor, s/o late Prem Kapoor, r/o B-604, Suresh Smriti, Prathmesh Complex Meera Desai Road in front of country club, Andheri West, Mumbai. In pursuance of the same, the Revenue Inspector forwarded the report of spot inspection dated 27.06.2022 mentioning that the applicant of the said application as well as other responsible persons were present on the spot. The report was submitted by the Revenue Inspector to the Sub-Divisional Officer, Sadar on 28.06.2022 with the conclusion that there is no sub division in the revenue map as the alleged gatas are situated in the dense core urban area, therefore, the demarcation proceedings under Section 24 of U.P. Revenue Code, 2006 are not feasible. 6. Learned counsel for the applicants submits that ignoring the said report, again only formal notice was issued to the applicants and thereafter inspection report dated 04.07.2022 was obtained by the Revenue Officer and conducted demarcation through ETS machine. It is vehemently submitted that a report dated 22.11.2022 was prepared by Mr. Shree Kant, Revenue Inspector, which was forwarded to Tehsildar with the observation that the said area is situated in the dense core population, and therefore, change of possession is not possible, even then, the final order was passed on 31.12.2022 by the Sub-Divisional Officer, Sri Naveen Chandra, Sadar, Lucknow by confirming the report dated 22.11.2022. Despite the aforesaid report of the Revenue Inspector dated 22.11.2022, possession was also taken by the Sub Divsional Officer and handed over to the private respondent, who immediately fixed the iron gate and raised boundary wall. 7. Further submission of learned counsel for applicant is that the property in question was recorded as nazul land. He has also submitted that gata nos.198/199 were recorded as nazul land and after freehold, it was purchased by one Sumer Chand Jain, who sold out the aforesaid plot having area 8970 sq ft to the applicants. It is further submitted that the applicants were in possession over the property in question, which was taken by the Sub-Divisional Officer as well as other police officials under the garb of aforesaid order of the Sub-Divisional Officer passed under Section 24 of U.P. Revenue Code. 8. He has next submitted that admittedly private respondent was the recorded tenure holder of gata no.358/1 area 5 biswansi (0.0032 hectare) but due to collusion with the revenue authorities in the revenue record, area was changed and the same has been mentioned as 0.032 hectare in place of 0.0032 hectare. It was also reported that the revenue authorities conducted the inquiry and the Naib Tehsildar, Kakori, Lucknow submitted the report dated 23.04.2024, which is annexed at page 33 of the supplementary affidavit filed today and thereafter with the association of police authorities excess possession was taken by the private respondent and thereafter the FIR in question was lodged. It is vehemently submitted that the charge sheet has been submitted by the Investigating Officer in the most mechanical manner and, therefore kind indulgence of this Court is necessary. 9. Learned A.G.A. as well as learned counsel for complainant have opposed the prayer of the applicant and submitted that in the real time khatauni, area of plot no. 358/1 is mentioned as 0.032 hectare. 10. The record placed by the Naib Tehsildar be kept in sealed cover. 11. List this case on 04.12.2024. 12. On the next date Sri Naveen Chandra, then Sub-Divisional Officer, Sadar, Lucknow shall appear before this Court and explain as to under what circumstances, he concluded the proceedings under Section 24 of U.P. Revenue Code, 2006. 13. Until further order of this Court, impugned proceedings shall remain stayed. 13. On the next date, the revenue record related to all disputed gatas be placed before this Court from the date of basic year upto the current date. 5. In pursuance of aforesaid order, Mr. Naveen Chandra, the then S.D.M., Sadar, Lucknow is present and he conceded this fact that no notice was issued to other recorded tenure holder adjoining to the boundary of the property in question and the report was sought from the Revenue Inspector. On the basis of report dated 28.6.2022 forwarded by Revenue Inspector, Mohibullapur, Lucknow, demarcation was not done but the record reveals that without giving any information to other recorded tenure holders of the adjoining property, demarcation through E.T.S. machine was conducted ignoring the aforesaid report of Revenue Inspector, thereafter, Tehsildar, Sadar, Lucknow also submitted a report dated 17.11.2022 with the observation that 'Kabza Parivartan' is not feasible. Thereafter, on the basis of report of Tehsildar, Sadar, Lucknow, dated 17.11.2022, order dated 31.12.2022 was passed. 6. It is evident from the record that certain photographs were annexed with the present application, in which, police officials like Ms. Manisha Singh, A.D.C.P., Lucknow, Ms. Neha Tripathi, A.C.P., Mr. Sunil Azad, S.H.O., Madeyganj, Lucknow are present on 31.3.2023. 7. Two weeks time is granted to learned counsel for the private respondent to file counter affidavit. 8. List this case on 19.12.2024 at 11:30 A.M. 9. Interim order, granted earlier, shall continue till the next date of listing. 10. Registry is directed to show the name of Sri Ratnesh Chandra, Advocate & Sri Anurag Kishore, Advocate as counsel for the private respondent in the cause list. 11. Original record related to the Case No.14091/2022 is returned to Mr. Shardendu Singh, Naib Tehsildar, Sadar, Lucknow. 12. Officer present today, need not to appear until further order. 13. Applicant as well as private respondent or her authorized shall appear before this Court. " 2. List this case on 13.01.2025. 3. In the meantime, learned counsel for the private respondent may file counter affidavit. 4. On the next date, Sub-Divisional Magistrate of area in question shall also file an affidavit and inform, as to whether, the area of plots in question have been corrected or not. 5. Interim order, if any, is extended till the next date of listing. 6. Parties present today need not to appear before this Court until further order.

7. Learned counsel for the applicant submits that private respondent filed an application under Section 145 Cr.P.C. with the collusion of the officials, in which, notice was issued and objection was filed by the applicants apprising the officials concerned that the proceeding is pending before this Court but the same was rejected in the most mechanical manner, therefore, indulgence of this Court is necessary.

8. Learned A.G.A. oppose the prayer of the applicant but he does not dispute this fact that proceeding related to the Section 24 of U.P. Revenue Code, 2006 challenged before this Court, in which, stay order was passed by this Court.

9. Considering the submissions of learned counsel for the parties, going through the contents of the application as well as other relevant documents, it is evident from the record that applicant is over the property in question and when the application under Section 145 Cr.P.C. was filed by the private respondent despite this fact that proceeding under Section 24 of U.P. Revenue Code was stayed by this Court, requires consideration. therefore, matter

10. Issue notice to the private respondent.

11. List this case on 17.3.2025.

12. The Sub Divisional Magistrate of area concerned is directed to file his personal affidavit that under what circumstances, knowing this fact that the proceeding is pending before this Court, objection of the applicant has not been considered in proper manner.

13. Until further order, impugned proceeding shall remain stayed. Order Date :- 13.1.2025 Gaurav/-