Viay and others v. State and another) computrized No. D

3. Brief facts of the case are that petitioners are recorded bhumidhar of plot No. 12 and adjacent plot No. 180 is recorded as 'Sarak-road' in the revenue record. An order for ejectment and damages has been passed by respondent No. 3/Tahsildar on

18.11.2023 in the proceeding under Section-67 of U.P. Revenue Code 2006 against the father of petitioner No. 1 to 3 in respect to plot No. 180 area 0.006 hectare. Appeal under Section-67 (5) of U.P. Revenue Code 2006 filed on behalf of petitioners along with the prayer for condonation of delay of about 7 months has been dismissed on the ground of limitation. Hence this writ petition on behalf of petitioners for following relief:- "a. A writ order or direction in the nature of certiorari to quashing the impugned order dated 15.10.2024 passed by the respondent No. 2 i.e. District Magistrate, Siddharth Nagar, in appeal case no. 1322 of 2024 (Viay and others vs. State and another) computrized No. D202417630001322, arising out of proceeding under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure No. 3 of this writ petition) as well as order dated 18.11.2023 passed by the respondent No. 3 i.e. Tehsildar (judicial) Naugarh, Siddharth Nagar in Case No. 7208 of 2023 (Gram Sabha vs. Hariram) Computrized Case No. T20231763107208, arising out of proceeding under Section 67 of U.P. Revenue Code 2006 (Annexure No. 1 of this writ petition). b. Issue a writ order or direction in the nature of mandamus commanding/directing the respondents shall not interfere with the peaceful possession of the petitioners and further direct to the respondents not create any third party rights over the petitioners house, otherwise the petitioners shall irreparable loss and injury so the justice may be done."

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 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 3 Others reported in 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 Sarak-road in the revenue record 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 18.11.2023 by Tehsildar against the father of petitioner Nos.1 to 3 and the same has been maintained in appeal vide order dated 15.10.2024.

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 18.11.2023 passed by Tehsildar fully demonstrate orders has been passed in ex-parte manner as well as in violation of the provision contained under the U.P. Revenue 2006 as well as 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 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. 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 subrule 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 his bhumidhari Plot No.12 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.

12. The exercise of appellate jurisdiction under Section 67 (5) of U.P. Revenue Code 2006 by Collector dismissing the petitioners' appeal on the ground of limitation is also arbitrary exercise of appellate jurisdiction as delay in filing appeal was about seven months as such, appeal should be decided on merit rather on technical grounds.

13. Considering the entire facts and circumstance of the case the impugned order dated 18.11.2023 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/ Tehsildar (Judicial) Naugarh, Siddharth Nagar 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 3 Others reported in 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. Order Date :- 24.1.2025 v.k.updh.

3. Brief facts of the case are that petitioners are recorded bhumidhar of plot No. 12 and adjacent plot No. 180 is recorded as 'Sarak-road' in the revenue record. An order for ejectment and damages has been passed by respondent No. 3/Tahsildar on

18.11.2023 in the proceeding under Section-67 of U.P. Revenue Code 2006 against the father of petitioner No. 1 to 3 in respect to plot No. 180 area 0.006 hectare. Appeal under Section-67 (5) of U.P. Revenue Code 2006 filed on behalf of petitioners along with the prayer for condonation of delay of about 7 months has been dismissed on the ground of limitation. Hence this writ petition on behalf of petitioners for following relief:- "a. A writ order or direction in the nature of certiorari to quashing the impugned order dated 15.10.2024 passed by the respondent No. 2 i.e. District Magistrate, Siddharth Nagar, in appeal case no. 1322 of 2024 (Viay and others vs. State and another) computrized No. D202417630001322, arising out of proceeding under Section 67 (5) of U.P. Revenue Code, 2006 (Annexure No. 3 of this writ petition) as well as order dated 18.11.2023 passed by the respondent No. 3 i.e. Tehsildar (judicial) Naugarh, Siddharth Nagar in Case No. 7208 of 2023 (Gram Sabha vs. Hariram) Computrized Case No. T20231763107208, arising out of proceeding under Section 67 of U.P. Revenue Code 2006 (Annexure No. 1 of this writ petition). b. Issue a writ order or direction in the nature of mandamus commanding/directing the respondents shall not interfere with the peaceful possession of the petitioners and further direct to the respondents not create any third party rights over the petitioners house, otherwise the petitioners shall irreparable loss and injury so the justice may be done."

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 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 3 Others reported in 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 Sarak-road in the revenue record 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 18.11.2023 by Tehsildar against the father of petitioner Nos.1 to 3 and the same has been maintained in appeal vide order dated 15.10.2024.

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 18.11.2023 passed by Tehsildar fully demonstrate orders has been passed in ex-parte manner as well as in violation of the provision contained under the U.P. Revenue 2006 as well as 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 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. 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 subrule 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 his bhumidhari Plot No.12 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.

12. The exercise of appellate jurisdiction under Section 67 (5) of U.P. Revenue Code 2006 by Collector dismissing the petitioners' appeal on the ground of limitation is also arbitrary exercise of appellate jurisdiction as delay in filing appeal was about seven months as such, appeal should be decided on merit rather on technical grounds.

13. Considering the entire facts and circumstance of the case the impugned order dated 18.11.2023 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/ Tehsildar (Judicial) Naugarh, Siddharth Nagar 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 3 Others reported in 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. Order Date :- 24.1.2025 v.k.updh.