High Court · 2025

Petitioner :- Bhawani Prasad Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Revenue, Lko. And Others Counsel for Petitioner :- Nishi Srivastava,Adarsh Srivastava Counsel for Respondent :- C.S.C.,Pankaj Gupta Hon'ble Alok Mathur,J.

1. Heard Smt. Nishi Srivastava, learned counsel for the petitioner as well as learned Standing Counsel for the respondent nos. 1 to 3 and Sri Mohd. Arif Khan, Advocate holding brief of Sri Pankaj Gupta, learned counsel appearing for respondent no. 4.

2. Present writ petition has been filed by the petitioner being aggrieved by order dated 26.07.2021, passed by the Tehsildar, Tehsil - Payagpur, District - Bahraich under Section 67 of the U.P. Revenue Code, 2006 (herein after referred to as "the Code, 2006") as well as order dated 28.04.2025, passed by the Collector, Bahraich, rejecting the appeal of the petitioner filed against order dated 26.07.2021.

3. It has been submitted by learned counsel for the petitioner that proceedings under Section 67 of the Code, 2006 where initiated against petitioner alleging illegal encroachment over Gata No. 168 min area 0.012 hectares situated at Village - Katorwa, Udhrna Sarhadi, Pargana - Ikauna, Tehsil - Payagpur, District - Bahraich. The said proceedings were concluded ex- parte against the petitioner who according to the competent authority did not appear despite notice and consequently order for eviction and imposition of penalty were passed.

4. In the appeal before the District Magistrate, Bahraich the petitioner has stated that he did not received any notice or information with regard to the proceedings pending under Section 67 of the Code, 2006 and consequently could not put in appearance and participate in the proceedings and accordingly, prays for setting aside the same. The appellate Court without considering the grounds raised by the petitioner with regard to his appearance or with regard to sufficiency of notice, merely concluded that the proceedings were pending before the trial Court for more than two years and petitioner did not adduce any evidence which itself indicates that the petitioner deliberately did not participate in the proceedings.

5. This Court finds that conclusion drawn by the appellant authority to be perverse, illegal and arbitrary inasmuch as without considering the grounds raised by the petitioner, he concluded that petitioner did not participate in the proceedings. He did not even perused the record to return finding that petitioner was ever served of the notice issued by the Tehsildar or that the petitioner had any information about the said notice.

6. This Court finds that the appellate order could not be sustained.

7. Learned counsel for the petitioner further submitted that the procedure to be followed, after taking note of the statutory provisions, has been settled by this Court in the judgments passed in the case of Rishipal Singh vs. State of U.P. and Others reported in 2022 SCC Online All 829 and in Writ-C No.9500 of 2022, (Sharda Industries Thru. Partner Mayank vs. The Additional District Collector, District Unnao And 2 Others).

8. Learned counsel for the side opposite opposed the present petition. However, he could not dispute the law settled by this Court in the judgment referred by the learned counsel for the petitioner, which indicates the procedure to be followed while deciding the case instituted under Section 67 of the Code of 2006 and the same was not followed while passing the order dated 26.07.2021 subsequently affirmed by the order dated 28.04.2025.

9. Considered the submissions made by the counsel for the parties and perused the record.

10. The procedure, which should be followed while deciding the case instituted under Section 67 of the Code of 2006, has already been settled by this Court as it would appear from para 74 of the judgment passed in the case of Rishipal Singh (Supra) as also the judgment passed in the case of Sharda Industries Thru. Partner Mayank (Supra). The relevant para 74 of the judgment passed in the case of Rishipal Singh (Supra) reads 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. In the judgment passed in the case of Sharda Industries Thru. Partner Mayank (Supra), this Court has observed that the report of lekhpal should be proved as per law and an unproved report cannot be relied upon.

12. A perusal of the order(s) indicate that the procedure, as prescribed by this Court, has not been followed, which is also not in dispute. Accordingly, the orders dated 28.04.2025 and 26.07.2021 are hereby set aside. The matter is remanded back to the opposite party No.3-Tehsildar, Payagpur, District-Bahraich, who shall conclude the proceedings within a period of three months from the date of production of certified copy of this order.

13. For concluding the proceedings, the opposite party No.3 shall not provide any unnecessary adjournment to the petitioner and in case, the petitioner fails to appear on the date fixed, then in that event, the authority concerned is at liberty to proceed ex- parte, however, in the light of the law laid down by this Court and conclude the proceedings within a period of three months.

14. In case, the present petitioner fails to produce the certified copy of this order before the authority concerned within 15 days from today, the benefit of this order would not be available to the petitioner.

15. With the above observation, the writ petition is allowed. Order Date :- 14.7.2025 A. Verma (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

Petitioner :- Bhawani Prasad Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Revenue, Lko. And Others Counsel for Petitioner :- Nishi Srivastava,Adarsh Srivastava Counsel for Respondent :- C.S.C.,Pankaj Gupta Hon'ble Alok Mathur,J.

1. Heard Smt. Nishi Srivastava, learned counsel for the petitioner as well as learned Standing Counsel for the respondent nos. 1 to 3 and Sri Mohd. Arif Khan, Advocate holding brief of Sri Pankaj Gupta, learned counsel appearing for respondent no. 4.

2. Present writ petition has been filed by the petitioner being aggrieved by order dated 26.07.2021, passed by the Tehsildar, Tehsil - Payagpur, District - Bahraich under Section 67 of the U.P. Revenue Code, 2006 (herein after referred to as "the Code, 2006") as well as order dated 28.04.2025, passed by the Collector, Bahraich, rejecting the appeal of the petitioner filed against order dated 26.07.2021.

3. It has been submitted by learned counsel for the petitioner that proceedings under Section 67 of the Code, 2006 where initiated against petitioner alleging illegal encroachment over Gata No. 168 min area 0.012 hectares situated at Village - Katorwa, Udhrna Sarhadi, Pargana - Ikauna, Tehsil - Payagpur, District - Bahraich. The said proceedings were concluded ex- parte against the petitioner who according to the competent authority did not appear despite notice and consequently order for eviction and imposition of penalty were passed.

4. In the appeal before the District Magistrate, Bahraich the petitioner has stated that he did not received any notice or information with regard to the proceedings pending under Section 67 of the Code, 2006 and consequently could not put in appearance and participate in the proceedings and accordingly, prays for setting aside the same. The appellate Court without considering the grounds raised by the petitioner with regard to his appearance or with regard to sufficiency of notice, merely concluded that the proceedings were pending before the trial Court for more than two years and petitioner did not adduce any evidence which itself indicates that the petitioner deliberately did not participate in the proceedings.

5. This Court finds that conclusion drawn by the appellant authority to be perverse, illegal and arbitrary inasmuch as without considering the grounds raised by the petitioner, he concluded that petitioner did not participate in the proceedings. He did not even perused the record to return finding that petitioner was ever served of the notice issued by the Tehsildar or that the petitioner had any information about the said notice.

6. This Court finds that the appellate order could not be sustained.

7. Learned counsel for the petitioner further submitted that the procedure to be followed, after taking note of the statutory provisions, has been settled by this Court in the judgments passed in the case of Rishipal Singh vs. State of U.P. and Others reported in 2022 SCC Online All 829 and in Writ-C No.9500 of 2022, (Sharda Industries Thru. Partner Mayank vs. The Additional District Collector, District Unnao And 2 Others).

8. Learned counsel for the side opposite opposed the present petition. However, he could not dispute the law settled by this Court in the judgment referred by the learned counsel for the petitioner, which indicates the procedure to be followed while deciding the case instituted under Section 67 of the Code of 2006 and the same was not followed while passing the order dated 26.07.2021 subsequently affirmed by the order dated 28.04.2025.

9. Considered the submissions made by the counsel for the parties and perused the record.

10. The procedure, which should be followed while deciding the case instituted under Section 67 of the Code of 2006, has already been settled by this Court as it would appear from para 74 of the judgment passed in the case of Rishipal Singh (Supra) as also the judgment passed in the case of Sharda Industries Thru. Partner Mayank (Supra). The relevant para 74 of the judgment passed in the case of Rishipal Singh (Supra) reads 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. In the judgment passed in the case of Sharda Industries Thru. Partner Mayank (Supra), this Court has observed that the report of lekhpal should be proved as per law and an unproved report cannot be relied upon.

12. A perusal of the order(s) indicate that the procedure, as prescribed by this Court, has not been followed, which is also not in dispute. Accordingly, the orders dated 28.04.2025 and 26.07.2021 are hereby set aside. The matter is remanded back to the opposite party No.3-Tehsildar, Payagpur, District-Bahraich, who shall conclude the proceedings within a period of three months from the date of production of certified copy of this order.

13. For concluding the proceedings, the opposite party No.3 shall not provide any unnecessary adjournment to the petitioner and in case, the petitioner fails to appear on the date fixed, then in that event, the authority concerned is at liberty to proceed ex- parte, however, in the light of the law laid down by this Court and conclude the proceedings within a period of three months.

14. In case, the present petitioner fails to produce the certified copy of this order before the authority concerned within 15 days from today, the benefit of this order would not be available to the petitioner.

15. With the above observation, the writ petition is allowed. Order Date :- 14.7.2025 A. Verma (Alok Mathur, J.) ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench