Nizamuddin v. Gram Panchayat)
Case Details
Neutral Citation No. - 2023:AHC:110235 Court No. - 52 Case :- WRIT - C No. - 16178 of 2023 Petitioner :- Nizamuddin Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sudhanshu Pandey Counsel for Respondent :- C.S.C.,Sudhir Bharti Hon'ble Kshitij Shailendra,J.
Legal Reasoning
1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Sudhir Bharti, learned counsel for the respondent-Gaon Sabha. 2. This writ petition has been filed challenging the order dated 11.02.2022 passed by the Assistant Collector/Tehsildar, Tehsil- Gola, District-Gorakhpur in Case No.02558 of 2018 (Computerized Case No.T-201805310702558) and order dated 17.04.2023 passed by the Additional Collector (Administration), District-Gorakhpur in Case No.923 of 2022 (Nizamuddin v. Gram Panchayat) (Computerized Case No.D-202205310000923). 3. Learned counsel for the petitioner has argued that certain proceedings under Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act-1950 (in short 'the Act-1950') were registered against the father of the petitioner twice and were dropped in the year 1988 and 1997. He submits that present proceedings were registered under Section 67 of the U.P. Revenue Code-2006 (in short 'the Code-2006') on the ground that petitioner and his brothers have encroached upon Gata Nos.240 and 252 and there is no dispute about the fact that petitioner and his other brothers are occupants over Gata No.238, in which, their house and boundary wall exist. 4. Per contra, the contention of learned Standing Counsel as well as learned counsel for the respondent-Gaon Sabha is that though there is no dispute about the fact that Gata No.238 belongs to the petitioner, insofar as, boundary wall is concerned, the same has been constructed over the Gaon Sabha land. 5. Learned counsel for the petitioner on merits argues that RC Form 19 was issued on 26.03.2018 and on the same day, RC Form 20 was issued and even the spot inspection relied upon by the courts below was not carried out in the presence of petitioner. Learned counsel has also referred to the cross-examination of the Lekhpal concerned wherein, he could not specifically allege the encroachment made by the petitioner and certain inconsistent statement was made. He further submits that the impugned orders are based upon statement of the Lekhpal and procedure prescribed under Rules 66 and 67 of the U.P. Revenue Code Rules-2016 (in short 'the Rules-2016') has been violated. 6. Learned Standing Counsel has vehemently argued that the petitioner shall not get any advantage out of dropping the proceedings against his father under Section 122-B of the Act- 1950 as they were dropped on the ground that petitioner's title over the land covered by Gata No.238 stood matured. He further submits that present proceedings are independent proceedings unconnected with the proceedings under Section 122-B of the Act- 1950 and hence, no illegality has been committed by the courts below, inasmuch as, the petitioner has encroached upon the Gaon Sabha land by constructing boundary wall. 7. Learned counsel for the petitioner has also referred to the area vested in the Gaon Sabha and submits that the extent of encroachment allegedly made by the petitioner has been described in the notices/forms as "0.004 hectares" only. 8. Be that as it may, I find that this Court recently in the case of Rishipal Singh Vs. State of U.P. and others reported in 2023 (1) AWC 4 has laid down specific guidelines for deciding matters under Section 67 of the Code-2006. This Court has clearly held that while proceeding and dealing with the matter, spot inspection in the presence of the parties is a mandate and strict compliance and adherence of various steps enumerated under Rules 66 and 67 of the Rules-2016 has to be made. 9. In the present case, I find that RC Form 19 which is information made to the Assistant Collector was issued on 26.03.2018 and RC Form 20 which is always based upon enquiry made by the Assistant Collector was also issued on the same day. Therefore, the steps enumerated under Rules 66 and 67 of the Rules-2016 are missing and it appears that proceedings have been hurriedly concluded. I also do not find anything on record to establish that the spot inspection was carried out in the presence of petitioner, rather, even Lekhpal has not been able to substantiate the factum of spot inspection in clear words as is apparent from the cross- examination of the Lekhpal. 10. In the opinion of the Court, the matter is required to be decided again after conducting a fresh spot inspection in the presence of the parties. 11. I find that guidelines framed by this Court in the case of Rishipal Singh (supra) have not been followed.
Decision
12. In view of the above, the present writ petition is allowed. 13. The impugned order dated 11.02.2022 passed by the Assistant Collector/Tehsildar, Tehsil-Gola, District-Gorakhpur in Case No.02558 of 2018 (Computerized Case No.T-201805310702558) and order dated 17.04.2023 passed by the Additional Collector (Administration), District-Gorakhpur in Case No.923 of 2022 (Nizamuddin v. Gram Panchayat) (Computerized Case No.D- 202205310000923) are hereby quashed. 14. The matter is remanded to the Assistant Collector, Tehsil- Gola, District-Gorakhpur (respondent no.3) with the following directions:- (a). The Assistant Collector/Tehsildar shall get the spot inspection conducted in the month of May 2023 itself after giving information to the petitioner. (b). However, since this order has been passed in the presence of the petitioner, equal responsibility lies upon him to ascertain the exact date of spot inspection and no issue shall be agitated later on. (c). The spot inspection shall be carried out by the team of Revenue Officials and petitioner's signature shall be obtained on the memo of the spot inspection as well as spot map. (d). The petitioner shall be at liberty to file objections against the spot memo/report etc. within a period three weeks from the date of submission of this spot memo before the court concerned. (e). The Lekhpal concerned who shall form part and parcel of the Inspection Team shall get his statement recorded within a period of next one month and he will be cross-examined by the petitioner. (f). Thereafter, the proceedings under Section 67 of the Code-2006 shall be decided afresh on or before 31.08.2023 after following the law laid down by this Court in the case of Rishipal Singh (supra), a copy whereof shall be supplied to the court concerned by the learned counsel for the petitioner. Order Date :- 19.5.2023 AKShukla/- Digitally signed by :- ANIL KUMAR SHUKLA High Court of Judicature at Allahabad