Allowed

Yogendra Nath Tiwari and Others v. Commissioner, Devi Patan Mandal, Gonda and Others

Allahabad HC10 Jan 2024WRIC/168/2024

Case brief

AI extract

What is this about?

This Court allowed a writ petition challenging an order affirming an ex-parte demarcation of land. The tribunal observed that petitioners, lease holders of adjacent plots, were not served notice, violating statutory procedure. It set aside orders and directed a fresh hearing with a fresh inspection report.

What did the court decide?

Set aside orders dated 14.12.2023 and 23.09.2023; directed respondent to call fresh report and decide proceedings within two months after hearing petitioners.

Yogendra Nath Tiwari and Others vs Commissioner, Devi… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:18473

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Court No. - 8

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Case :- WRIT - C No. - 168 of 2024

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Petitioner :- Yogendra Nath Tiwari And Others Respondent :- Commissioner, Devi Patan Mandal, Gonda And Others Counsel for Petitioner :- Ganga Prasad Mishra Counsel for Respondent :- C.S.C.,Faiz Ahmad Khan,Pankaj Gupta,Shyam Mohan Pradhan

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Hon'ble Jaspreet Singh,J.

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Heard Shri Ganga Prasad Mishra, learned counsel for the petitioners, learned standing counsel for the State-respondents, Shri Pankaj Gupta, learned counsel for the Gaon Sabha and Shri Shyam Mohan Pradhan, learned counsel for the private-respondent No.3.

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By means of the instant petition, the petitioners assail the impugned order dated 14.12.2023 by which the Commissioner, Devi Patan Mandal, Gonda has affirmed the order dated 23.09.2021 passed by the SubDivisional Officer, Prayagpur, District Bahraich in proceedings arising out of under Section 24 of the U.P. Revenue Code, 2006.

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The submission of the learned counsel for the petitioners is that the private-respondent No.3 instituted the proceedings under Section 24 of the U.P. Revenue Code, 2006 in respect of Plot No.430M measuring 0.800 hectares situate in Gram Ganga Jamuni, Paragana Ikauna, Tehsil Payagpur, District Bahraich.

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It is the contention of the learned counsel for the petitioners that the petitioners were granted a lease of Plot No.204 for residential purposes which was also approved by the Land Management Committee in the year 1995 and since then the petitioners are in possession of the said land. It is

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also the case of the petitioners that the private-respondent No.3 instituted a petition for demarcation, however, the said proceedings were decided exparte and at the time of fixing of pillars relating to Plot No.430M claimed by the private respondent No.3, the petitioners came to know of the said order and it has been stated that without issuing notice to the contiguous plot holder, the said order was passed, as a result, the land the petitioners is being affected and that too without any notice to the petitioners.

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It is further urged that the petitioners had preferred an appeal, however, the appeal has been dismissed by the appellate authority on the ground that since the petitioners have moved an application before the SubDivisional Officer concerned seeking recall of the order, hence, their appeal was dismissed.

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It is urged that in terms of Section 24 of the U.P. Revenue Code, 2006 and the Rules framed thereunder, it was incumbent upon the authorities to have taken clear note of the fact that notice must be issued to all such contiguous plot holders who may be affected and this aspect was not taken note of by the Sub-Divisional Officer, even the lower Appellate Court moved on the premise that since the application for recall is pending, hence, the appeal has been dismissed without considering that the order itself was bad.

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It is also urged that the lower appellate Court failed to notice that the application for recall had not been pressed by the petitioners on 27.09.2023 and in the aforesaid circumstances, the lower appellate Court could not have dismissed the appeal on the said ground, as a result, neither the application for recall could be heard on merits and mere filing of the said

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application even after its withdrawal could not create any embargo on the rights of the appellate authority to have entertained, heard and decide the appeal on merits. Thus, the impugned order is bad and the substantive rights of the petitioners are affected.

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Shri Shyam Mohan Pradhan, learned counsel for the privaterespondent No.3 has very candidly stated that the petitioners did not raise the issue that they were lease holders of Plot No.204 rather they had been raising the contention regarding the rights of Plot No.203M. It is further urged that Plot No.203M is not adjacent to the plot of the privaterespondent No.3 and in the aforesaid circumstances, there was no requirement for the Sub-Divisional Officer to have issued notices to the petitioners.

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It is urged that the petitioners have improved their case for the first time in the instant petition stating that they are lease holders of the Plot No.204M. It is further urged that the petitioners themselves had agitated two simultaneously reliefs one before the Court of Sub-Divisional Officer seeking recall of the order and later by filing an appeal before the Court of Commissioner. Even if the application for recall was not pressed, the same should have been informed to the lower appellate Court which was not done.

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In the aforesaid circumstances, it cannot be said that the order impugned either passed by the Sub-Divisional Officer or the lower appellate Court was bad in the eyes of law, hence, the petition deserves to be dismissed.

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The Court has heard learned counsel for the parties and also perused the material on record.

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It is not disputed that the private-respondent No.3 had initiated proceedings seeking demarcation of his plot No.430. It is also not disputed that in terms of Section 24 of the U.P. Revenue Code, 2006, it is the duty of the Sub-Divisional Officer to see that all such parties whose plots are contiguous to the plot for which demarcation is sought, all such affected plot holders must be noticed. It is also seen that the petitioners have stated that they are lease holders of Plot No.204 and Plot No.204 does come near the Plot No.230 in such circumstances the lease that could have been done was to have noticed the parties but admittedly the same was not done, as a result, the order of demarcation was ex-parte insofar as the petitioners are concerned.

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Considering the facts and circumstances of the instant case, admittedly the proceedings of Plot No.430 were ex-parte insofar as the petitioners are concerned even though the petitioners may have improved their case by stating for the first time in the petition that they are lease holders of Plot No.204 and they are there somehow in the vicinity of Plot No.430, belonging to the respondent No.3. In the aforesaid backdrop, it would be expedient if the demarcation proceedings can be directed to be decided after affording an opportunity of hearing to the petitioners and a fresh inspection report be called for by the Tehsildar concerned.

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Learned counsel for the private-respondent No.3 fairly submits that it would be expedient that the matter may be expedited by this Court and a fresh inspection report may be called for and sometime be fixed within

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which the demarcation proceedings can be concluded. In this way, the petitioners would also have an opportunity of hearing and the anxiety of the private-respondent No.3 to get his plot demarcated at the earliest and also be redressed.

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Having considered the aforesaid, this Court set aside the orders dated 14.12.2023 as well as 23.09.2023 passed by the respondents No.1 and 2 respectively. The parties shall appear before the respondent No.3 on 04.03.2024 and the respondent No.2 shall call for a fresh report and after affording full opportunity to the parties and without granting unnecessary adjournment shall entitle to decide the demarcation proceedings filed at the behest of the private-respondent No.3 preferably within a period of two months commenced from 04.03.2024.

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It is made clear that this Court has set aside the order solely on the ground that the petitioners have not been granted an appropriate opportunity and as such after calling for the fresh report, the respondent No.2 shall decide the case afresh within a period as indicated above. In any case, if any of the party appears to misuses the liberty granted by the Court, the respondent No.2 shall well within its rights to proceed and decide the matter in accordance with law.

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In view of the aforesaid, the petition is allowed in the aforesaid terms.

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Costs are made easy.

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Order Date :- 21.02.2024 Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Yogendra Nath Tiwari and Others v. Commissioner, Devi Patan Mandal, Gonda and Others

Case brief

What is this about?

What did the court decide?

Yogendra Nath Tiwari and Others v. Commissioner, Devi Patan Mandal, Gonda and Others

Case brief

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What did the court decide?

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