Allowed

Rakesh Gandhi v. State of U.P. and 3 Others

Allahabad HC10 Oct 2023WRIC/23360/2023

Case brief

AI extract

What is this about?

Court allowed a writ petition setting aside revenue recovery orders passed against a society's secretary in his personal capacity for encroachment damages. The judgment held that proceedings under the U.P. Revenue Code must be initiated against the society and not the office-bearer personally, and noted procedural violations regarding survey requirements.

What did the court decide?

Impugned orders dated 3.6.2022 by Tahsildar and 17.4.2023 by Collector were set aside. Authorities directed to proceed afresh in accordance with law.

Rakesh Gandhi Vs State of U.P. and 3 Others — Land Acquisition | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:194777

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Court No. - 51

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Case :- WRIT - C No. - 23360 of 2023

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Petitioner :- Rakesh Gandhi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sumit Suri,Nipun Singh,Sr. Advocate Counsel for Respondent :- C.S.C.,Krishna Kant Singh

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Hon'ble Chandra Kumar Rai,J.

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Heard Mr. Anurag Khanna, learned Senior Counsel assisted by Mr. Nipun Singh, learned counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Krishna Kant Singh, learned counsel for the respondent-Gram Sabha.

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Brief facts of the case are that Sri Krishna Bihari Ashram Yadav Nagar, Etah is a society registered under the provisions of Societies Registration Act, 1860 and renewal certificate was issued in favour of society on 22.9.2020 for period of five years. Petitioner is the secretary of the aforementioned society. Auction proceeding was held by Civil Judge, Senior Division, Etah in Original Suit No.669 of 2005 in which petitioner got the auction settled in his favour on 19.5.2009 in respect to Khasra No.278/12 area 0.405 hectare situated in Village- Ghilauna, Tahsil- Sadar, DistrictEtah. On the basis of auction held on 19.5.2009, a sale certificate dated 25.3.2010 issued in favour petitioner's society by the Court of Civil Judge, Senior Division, Etah. In pursuance of the sale certificate, petitioner's society was recorded in the municipal record over Khasra No.278/12 area 0.405 hectare. It is material that Khasra No.278 / 12 is a very big plot in which about 20 tenure holders are in possession and Khasra No.278 is divided into 22 parts in which Khasra No.278/12 area 0.405 hectare came in the share of petitioner's society. It is also material that khasra no.278/12 area 0.405 hectare was initially recorded in the name of one Ramphal Singh with effect from 1968 till 19.5.2009. In the year 2022, revenue authorities started interference with the right of the petitioner's society with respect to khasra no.278 / 12, accordingly, petitioner filed a Writ- C No.12641 of 2022, which was disposed of vide order dated 13.5.2022 directing the authorities to act in accordance with law before taking any action. One Rajendra Singh started interference with the right of petitioner's society, accordingly, Civil Suit No.367/2022 was filed by the petitioner's society against Rajendra Singh for decree of permanent injunction in which temporary injunction was granted by the Civil Court vide order dated 24.5.2022 directing the parties to maintain status quo with respect to the property in question. During pendency of the Suit No.367 / 2022 proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against

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the petitioner and in the ex-parte manner, the order for eviction and damages has been passed on 3.6.2022 amounting to Rs.44,12,500/-. Petitioner filed a revision against the order dated 3.6.2022 before the Board of Revenue in place of appeal as provided under Section 67 (5) of U.P. Revenue Code, 2006. Petitioner also filed a Writ Petition No.21774 of 2022 before this Court against the order dated 3.6.2022 as well as the recovery citation dated 6.6.2022, which was disposed of vide order dated 2.8.2022 directing the petitioner to file an appeal under Section 67 (5) of U.P. Revenue Code, 2006 along with stay application after withdrawing the revision filed by the petitioner before the Board of Revenue as well as directed the appellate Court to decide the stay application on merit taking liberal view on the delay condonation matter. In pursuance of the order dated 2.8.2022, petitioner filed an appeal before Collector under Section 67 (5) of U.P. Revenue Code, 2006 on 8.8.2022 along with stay application. Collector vide order dated 29.8.2022 passed the conditional stay order directing the petitioner to deposit 25% of the total amount of damages within 7 days from the date of order failing which appropriate recovery proceeding shall be initiated against the petitioner. Petitioner again filed a Writ- C No.29111 of 2022 challenging the interim order dated 29.8.2022 passed by the Collector in pending appeal. This Court vide order dated 13.10.2022 disposed of the Writ- C No.29111 of 2022 staying the order dated 29.8.2022. So far as it relates to payment of 1/4th of the total amount of damages and further directed the Collector to decide the appeal in accordance with law within period of three months. Collector vide order dated 17.4.2023 dismissed the appeal filed by the petitioner, hence this writ petition.

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3. This Court on 19.7.2023 passed the following order:

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"Heard Shri Anurag Khanna, learned Senior Advocate assisted by Shri Nipun Singh, learned counsel for the petitioner, Shri Abhishek Shukla, learned Addl. Chief Standing Counsel for the State-respondent Nos. 1 to 3 and Shri Krishna Kant Singh, learned counsel for Gaon Sabha.

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The challenge in this writ petition is to the impugned order dated 17.4.2023 passed by the Collector, Etah, respondent No. 2 whereby the appeal preferred under Section 67 (5) of the U.P. Land Revenue Code, 2006 has been rejected and the order dated 3.6.2022 passed by the Assistant Collector Ist Class/Tehsildar, District Etah, respondent No. 3 holding the petitioner to have encroached upon an area of 0.115 hectare of Plot No. 278 (?) and consequently, a sum of Rs.44,12,500/- is sought to be recovered from the petitioner has been upheld. The petitioner, happens to be the Secretary of the Society, namely, "Shri Krishan Bihari Ashram Yadav Nagar, Etah" which is running an educational institution under the name and style of "Shree Chandra Swami Ucchatar Madhyamik Vidyalaya, Jail Road, Etah". The impugned orders proceed on the premise that the sum of Rs.44,12,500/- is to be recovered from the petitioner.

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Shri Khanna submits that the authorities have already carried out the demolition of the encroachment and the issue involved in the present writ petition is confined to the question as to whether the amount sought to be recovered under the notice can be recovered from the personal properties of the petitioner. Reliance has been placed upon Section 8 of the Societies Registration Act, 1860, which in substance bars the enforcement of any judgment passed against the Society from the office bearers of the society. The relevant portion of Section 8 of the Society Registration Act, is as under:-

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8. Enforcement of judgment against society.?If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.

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It is contended that the petitioner is the Secretary of the Society and in the plot in question the institution is running and if at all any recovery is to be made, the same can be made only against the institution and the society but not against the petitioner.

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Learned counsels appearing for the respondents pray for time upto Monday i.e. 24.7.2023 to seek instructions.

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List this case on 24.7.2023 as fresh.

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Shri Khanna also insists that the respondents are pressing for recovery of the amount from the petitioner. To this, Shri Krishna Kant Singh, learned counsel for respondent No. 4 submits that no such recovery is being undertaken as of now."

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Learned counsel for the petitioner submitted that the proceeding initiated against the petitioner, under Section 67 of U.P. Revenue Code, 2006 in personal capacity is not maintainable. He further submitted that the order for ejectment and damages passed against the petitioner is in utter violation of principles of nature justice. He next submitted that as per Section 8 of Societies Registration Act, 1860, no recovery can be made from the petitioner or from his personal assets. He also submitted that even the amount of damages imposed against the petitioner is illegal as there is no basis for imposing damages of Rs.44,12,500/-. He also submitted that the petitioner's society is claiming right on the basis of auction took place in favour of the petitioner by the civil Judge in pursuance of the decree passed in civil suit. He further submitted that the sale deed has been executed in favour of the petitioner's society, as such, the order of eviction and damages against the petitioner without conducting proper survey and demarcation of the plot in dispute is wholly illegal. He next submitted that

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the petitioner was not given opportunity before the Tahsildar but in appeal petitioner has taken specific ground regarding maintainability of the proceeding against the petitioner in personal capacity, right, title and possession of the petitioner as well as the arbitrary imposition of the amount of damages against the petitioner's society but appellate Court without considering the grounds setup in the grounds of appeal has dismissed the appeal vide impugned order. He placed reliance upon the judgment of this Court reported in 2023 (1) ADJ 154, (Rishipal Singh Vs. State of U.P. & Others) in order to demonstrates that the proceeding under Section 67 (1), 67 (A) & 67 (5) of U.P. Revenue Code, 2006 is to be conducted after proper opportunity of hearing and conducting proper survey / demarcation of the plot in dispute. He further submitted that the impugned order be set aside.

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On the other hand, Mr. Krishna Kant Singh, learned counsel for the respondent- Gram Sabha submitted that in view of the provisions contained under Section 6 of Societies Registration Act, 1860, the proceeding has been rightly initiated and the impugned order has been rightly passed. He placed the provisions contained under Section 6 of Societies Registration Act, 1860 which runs as follows:

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"6. Suits by and against societies.—Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion: Provided that it shall be competent for any person having a claim, or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."

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He further submitted that the plot in dispute is recorded as banjar and society is in illegal occupation over the same, as such, the order impugned has been rightly passed and no interference is required in the matter.

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Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents also submitted that the impugned order has been rightly passed and no interference is required in the matter. He further submitted that the petitioner's construction has already been demolished, as such, no interference is required in the matter.

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I have considered the argument advanced by learned counsel for the parties and perused the records.

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There is no dispute about the fact that the petitioner is secretary of Shree Chandra Swami Ucchatar Madhyamik Vidyalaya, Jail Road, Etah and the proceeding under Section 67 of U.P. Revenue Code, 2006 has been

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initiated in the personal capacity of the petitioner and the impugned order for ejectment and damages has been passed against the petitioner.

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The perusal of the relevant portion of the order passed by the Tahsildar will be necessary for consideration, which is as under:

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" आददशपतक

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नययययलययतहससलदयर

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मणडलयअलसगढजनपदयएटय , तहससलयएटय

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वयदससखययय - 4442/2022

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कसपययटरसककतवयदससखययय - T 202218210404442 गयसवसभयबनयमरयकदशगयगधस

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अनतगरतधयरयय - 67, अधधननयमय - उतरपददशरयजसवससनहतय -2006

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ननररय

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उपयकवयदलदखपयलसनचवएवसरयजसवननरसककककआखययनदनयगक र 02.05.2022 कदआधयरपरनवपकसरयकदशगयगधस परतशसमहयरयजधससहननवयससययदवनगरएटयपरगनयएटयसककटतहससलवधजलयएटयकदनवरदइसआशयसदआरमभ हहआनकनवपकसनदगयमपसचययतनघललआपरगनयएटयसककटतहससलवधजलयएटयककभयनमगयटयससखयय 278 ससरकवय 0.1820 कद 0115 हहकटदयर (1150 वगरमसटर ) परअनयधधकयरकबजयकरकदगयमपसचययतनघललआकक 4412500.00 रपययकककनतपहहगचयईहह।अतयनवपकसककगयमपसचययतककभयनमसदब द खलकरकनतपयनतरवसयलककजयवद। ननयमयनरसयरनवपकसककनकनटसआर०सस०पपत 20 जयरसनकययगयय , जकबयदतयमसलपतयवलसपरउपलबधहह। उकपकररसदसमबननधतशसरयकदशगयगधसपबनधकशसचनदयसवयमसहययरसदकदणडडससकयलएटयककओरसदधसनवलनमस ररटनपटसशनससखयय 12641/2022 रयकदशगयगधसबनयमउ०प०रयजयवअनय , मयननसयउचचनययययलयइलयहयबयदमम यकधजतककधजसमदमयननसयनययययलयनदनदनयगक 13.05.2022 ककआददशपयररतकरननदरनशतनकययगययनक " Petition be considered as representation before taking any action, the petitioner will be heard and if ultimately it is found that the property which is sought to be demolished, is in encroachment, proper order be passed under law", जकपतयवधलतनकययगयय। नवपकसककओरसदनकनटसतयमसलउपरयनतभसककईउपनससतनहसहहऔरनहसनवपकसककओरसदककईजबयवनकनटस पसतरतनकययगययहह। गयगवसभयककओरसदमलधखकसयकयममकदतसयलदखपयलकयवययनअसनकतकरयययगयय।अनभलदखसयसयकयममनकशय नजरस , नकलखसरय , उदररखतलनसदयधखलनकयदगयदहहतसयरयजसवटसमदयरयससलसयजयसच / पहमयइशकरदसगयस आखययनदनयगक 25.04.2022 दयधखलकक।

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महनदगयगवसभयकदनवदयननयनमकयअधधवकयकदतकरककसरनयएवसपतयवलसकयभलस - भयसनतअवलककननकयय।कदतसय लदखपयलदयरयपसतरतररपकटरममपशनगतभयनमगयटयससखयय 278 सस /0.182 हहकटदयरकद 0.115 हहकटदयर (1150 वगरमसटर ) परनवपकसदयरय 10 वररसदअवहधअधययसनकरकदअपनदनवदयलयममसममधलतकरधलययहह।अवहधअधययसनककससमयएस एवसपहमयइशआखययमददनशरतहह।रयजसवटसमदयरयपशनगतअनतकमरकदसमबनधममदसगयसआखययनदनयसक 25.04.2022 जकपतयवलसपरदयधखलहहममभसपशनगतभयनमपरअवहधअधययसनपयययगययहह।पतयवलसपरदयधखल उदररखतलनसफसलसवरर 1429 फ०लगययत 1434 फ०कदखयतयससखयय 00218 परपशनगतगयटयससखयय 278 सस० /0.1820 हहकटदयरबसजरखयतदममअसनकतहहतसयउदररखसरय 1428 फ०ममभसउकभयनमबसजरदजरहह। उपरककनववदचनयसदमहइसननषकररपरपहहगचतयहहगनकपशनगतगयटयससखयय 278 सस /0.1820 हहकटदयरगयमपसचययत नघललआपरगनयएटयसककटतहससलवधजलयएटयककबसजरभयनमहहधजसममसद 0.11 हहकटदयरककनवपकसनदलगभग 10 वरर सदअपनदनवदयलयशसचनदयसवयमसउचचतरमयधयनमकनवदयलयजदलरकडएटयममसनममधलतकरकदअवहधअधययसनकर रखयहह।नवपकसककगयमपसचययतनघललआककभयनमसदव द खलनकययजयनयनयययकनचतहह , सयसहसगयमपसचययतकक समपधतककनवपकसदयरयपहहगचयईगईकनतकदधलएनवपकसपरकनतपयनतरआरकपतनकययजयनयभसनयययकनचतहहधजसकदधलए नवपकसपरकनतपयनतररयजसवससनहतय 2006 कदननयम 67(4) मदनदएगएपयनवधयनकदअनरसयरससनकरलरदटकय 5 पनतशत पनतवररसदननधय र रतककजयतसहहजक 1150 x 7500 x5/100 x 10 वरर = 4312500 रपययहकतसहहवननषपयदनवयय 100000 रपययननधय र रतकरतदहहएकरल 4412500 रपययवसयलनकयदजयनदयकगयहह।

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आददश

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अतयनवपकसरयकदशगयगधसपरतशसमहयरयजधससहननवयससययदवनगरएटयपरगनयएटयसककटतहससलवधजलयएटयककगयम पसचययतनघललआपरगनयएटयसककटतहससलवधजलयएटयककभयनमगयटयससखयय 278 ससरकवय 0.182 हहकटदयरकद 0.11 हहकटदयर (1150 वगरमसटर ) सदधजसककससमयएसपयरब - ककलदजगयनधसजस , पनशचमखदतईशवरदययल , उतररयसतय , दनकर खदतधययनधससहअवहधअधययसनसदब द खलकरकनतपयनतर 4312500.00 रपययव 100000.00 ननषपयदनवययकरल 4412500.00 रपययआरकनपतनकययजयतयहह।तदनरसयरनकनटस 67(3) खजयरसनकययजयवद।वयदआवशयककययरवयहस पतयवलसदयधखलदफतरककजयए।

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नदनयसक 3.6.22 सहययककलकटर ( प०शदरस ) / तहससलदयरएटय " 11. Considering the finding of fact recorded by the Tahsildar as maintained by the Collector, the impugned order cannot be sustained in the eye of law as society is stated to be in possession over the plot in question, as such,

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proceeding should be initiated in proper manner against the society through secretary rather in the name of secretary only in the personal capacity.

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In the case of Rishipal (supra) , this Court has laid down the principle for deciding the proceeding under Section 67 (1), 67 (A) & 67 (5) of U.P. Revenue Code, 2006 specially in the cases where parties are disputing their possession over the plot in dispute or claiming right over the plot in dispute, the proper opportunity of hearing to the parties concerned as well as survey / demarcation of the plot in dispute are mandatory before passing the order for ejectment and damages against the parties concerned. Paragraph No.74 of the judgment is relevant for perusal, which is as under:

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"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:

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation."

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Considering the entire facts and circumstances, the impugned order dated 3.6.2022 passed by the Tahsildar, Etah/ respondent no.3 and order dated 17.4.2023 passed by the Collector, Etah / respondent no.2 cannot be sustained in the eye of law and the same are hereby set aside.

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The writ petition stands allowed. However, authorities can proceed afresh in accordance with law in respect to the plot in dispute as mentioned above. The demolition of the petitioner's construction, which has already taken place shall be subject to the further proceeding by the authorities in accordance with law.

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Order Date :- 10.10.2023 Rameez

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Digitally signed by :- RAMEEZ AHMED High Court of Judicature at Allahabad

Rakesh Gandhi v. State of U.P. and 3 Others

Case brief

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Rakesh Gandhi v. State of U.P. and 3 Others

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