Allowed

M/S Western Up Tollway Pvt. Ltd. and Another v. State of U.P. and 4 Others

Allahabad HC2 Jul 2024WRIC/18400/2024

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, setting aside orders under the UP Revenue Code and UP ZAR Act regarding alleged land encroachment. The Court found procedural lapses and lack of confidence in the Lekhpal's report, remitting the matter for a fresh decision following established guidelines.

What did the court decide?

The impugned orders dated 29.09.2022 and 29.01.2024 were set aside, and the matter was remitted to the Tehsildar for a fresh decision within three months.

M/S Western Up Tollway Pvt. Ltd. and Another vs State of… — Land Acquisition | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:111434

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Court No. - 50

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Case :- WRIT - C No. - 18400 of 2024

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Petitioner :- M/S Western Up Tollway Pvt Ltd And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vinayak Mithal Counsel for Respondent :- C.S.C.,Raghav Dwivedi,Sunil Kumar Singh

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Naveen Sinha, learned Senior Counsel assisted by Shri Vinayak Mithal, learned counsel for the petitioners, learned Standing Counsel for the State-Respondents, Shri Raghav Dwivedi, learned counsel representing the respondent no. 4 and Shri Sunil Kumar Singh, learned counsel for respondent no. 5.

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The writ petition has been filed assailing the orders dated 29.09.2022 passed by the Tehsildar (Nyayik)/Assistant Collector, Tehsil Sardhana, District Meerut in Case No. RST/3736/2014 under Section 122(B) of the Uttar Pradesh Zamindari Abolition and Reforms Act, 1950, and the order dated 29.01.2024 passed by respondent no. 2, District Magistrate/District Collector, Meerut, in Appeal under Section 67 (5) of the UP Revenue Code, registered as Appeal No. 9448 of 2022 whereby the Appeal has been dismissed and the order of the Tehsildar (Nyayik)/Assistant Collector, Tehsil Sardhana, District Meerut, holding the petitioners to have encroached over plot No. 837M area 0.8220 hectare and directing the dispossession of the petitioners from the said plot and imposing damages to the tune of Rs. 1,03,500/- and execution charges Rs. 10.00 in Case No. 3736 of 2014, under Section 122-B of the U.P.Z.A.&L.R. Act, 1950 has been upheld.

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It is the case of the petitioners that the Petitioner No. 1 is a Company incorporated under the provisions of the Companies Act, 1956 entered into Concession Agreement dated 09.09.2005 with the National Highways Authority of India for improvement, operation and maintenance of rehabilitation and strengthening of existing 2 Lane Road and widening to 4 Lane divided Highway of 52.250 KM to 131.000 KM of NH-58 (Meerut Muzaffar Section) in the State of Uttar Pradesh on BOT basis under NHDP PhaseIIIA. Under the aforesaid agreement, the Petitioner No. 1 established a toll plaza in Gram Siwaya Jamaullapur, Pargana

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Daraula, District Meerut. The National Highway Authority of India (NHAI) obtained the piece of land ad-measuring 1245.1906 sq. mtrs. forming part of Khasra No. 837 situated in Village Siwaya Jamaullapur, District Meerut, which was marked as Gram Sabha Land, from the State Government through the process of resumption consequent to a Notification No. 1971 (6) dated 15.11.2006 issued by the Ministry of Shipping, Road Transport and Highways (Department of Load Transport & Highways) published in the official gazette. In lieu of transfer of 1245.1906 sq. mtrs. of land, the NHAI made a payment of Rs.3,07,78,117/-. On the basis of an exparte report dated 15.9.2014 of the Lekhpal, proceedings under Section 122-B of the U.P.Z.A.&L.R. Act were initiated against the petitioners and exparte order dated 15.4.2015 was passed alleging that the petitioners are in unauthorized occupation of 0.0600 hectares of Khasra No. 837M and liable for a sum of Rs.20,70,000/- as fine. A recovery citation to the tune of Rs.20,70,020 dated 16.04.2015 was issued against the petitioners by the Tehsildar, Sardhana, Meerut.

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The petitioners sought recall of the exparte order dated 15.4.2015 but the recall application was erroneously rejected vide order dated 16.11.2016. Aggrieved the petitioner filed revision which was allowed vide order dated 18.5.2017 and matter was remanded back to the Tehsildar (Judicial), Sardhana, Meerut for decision afresh. Before the Tehsildar (Judicial), specific plea as regards the exparte report of the Lekhpal dated 15.9.2014 being totally arbitrary and suffering from major lacuna and inconsistences detailed in paras 16, 17, 18, 19 and 20 of the writ petition was taken. The Tehsildar (Judicial), however, without adverting to the said objections passed the impugned order dated 29.9.2022 holding the petitioners to be in unauthorized occupation of 600 square meters of Khasra No. 837 ordered the eviction of the petitioners imposing damages of Rs.1,03,500/- and Rs.10/- as execution charges.

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Since the recovery was sought by issuing RC Form 21 under the U.P. Revenue Code, 2006, the petitioners preferred an appeal under Section 67 (5) of the Code against the order dated 29.9.2022 raising several grounds including the ground of violation of natural justice and non joinder of NHAI in the proceedings. The appeal under Section 67 (5) has been dismissed in a cursory manner finding no error in the order of the Tehsildar (Judicial).

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Learned counsel for the petitioners has vehemently argued that the sole basis of the proceedings against the petitioners is the exparte report of the Lekhpal dated 15.9.2014. It is submitted that

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the report is vague sans specific measurement and boundaries. No fixed points have been indicated for determination and identification of the land alleged to have been encroached upon. The Lekhpal in his cross examination admitted that the survey report does not carry any measurement of the area of the Toll Plaza Building. The Lekhpal further admits that measurement has not been carried out by the Lekhpal and admittedly without making any measurement has found that the petitioners are in unauthorized occupation of 600 square meters of Khasra No. 837 of Gaon Sabha Land recorded as "Shamshan" (Margat) public utility land. It is submitted that there is nothing in the report of the Lekhpal to establish the exact distance, area, boundaries of the land alleged to have been encroached and in illegal occupation. It has also been argued that an area of 1245.1096 square meters of land of Khasra No. 837 having an area of 0.822 hectare has been acquired by NHAI and it was imperative for the Lekhpal to clearly identify the land alleged to have been encroached upon. It is accordingly argued that the impugned orders suffer from patent illegality and are liable to be set aside.

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Learned counsel for the State respondents and Gaon Sabha have supported the order impugned and submit that the authorities have recorded the findings of facts which call for no interference in writ proceedings and no relief can be granted to the petitioner.

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I have heard the learned counsel for the parties and have perused the records. Admittedly the order passed by the Tehsildar under Section 122(B) of Uttar Pradesh Zamindari Abolition and Reforms Act, 1950 is without considering the objections in the proper perspective. The report dated 15.9.2014 of the Lekhpal and his statement does not inspire confidence. The petitioner took specific grounds in the Appeal under Section 67(5). Prima facie, the Court finds that the grounds as raised in the Appeal has not been adverted to by the Appellate Authority while dealing with the Appeal.

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The manner and the method in which spot inspection is to be conducted, reports prepared and the procedure to be adopted by the Revenue Authorities in exercise of powers conferred under Section 67 of the UP Revenue Code 2006 came up for consideration before a Coordinate Bench of this Court in the case of Rishipal Singh vs. State of U.P. and 3 others (Writ C No. 6658 of 2022) decided on 2.12.2022, reported in 2023 (1) ADJ 154 . The Coordinate Bench after considering all aspects of the matter in para 74 of the judgment culled out the guidelines to be adopted as procedure to be applied to proceedings under Section 67, 67A and 26 of the UP

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Revenue Code for ensuring transparency in the procedure, judiciousness in approach and to thwart every complaint made with ulterior and oblique motive.

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Prima facie, after hearing the counsels for the parties, the Court is of the opinion that the guidelines enumerated have not been followed by the District Magistrate/District Collector, Meerut and the Tehsildar (Nyayik)/Assistant Collector, Tehsil Sardhana, District Meerut, while exercising powers under Section 67(5) of the UP Revenue Code, 2006 and Section 122(B) of Uttar Pradesh Zamindari Abolition and Reforms Act, 1950, respectively. The Revenue Authorities while passing the impugned orders have also not considered the import of Rule 84 of the U.P. Revenue Code Rules, 2016 which provides for change of class of Public Utility Land viz-a-viz the Notification No. 1971 (6) dated 15.11.2016 issued under which the land is stated to have been resumed for NHAI. Ends of justice shall stand subserved if the matter is remitted back for fresh decision by the Tehsildar (Judicial). Liberty is granted to the petitioners to substantiate their objections further by raising further grounds of challenge.

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In view of the above, the impugned order dated 29.01.2024 passed under Section 67 (5) of the UP Revenue Code, 2006 and also the order dated 29.09.2022 under Section 122(B) of Uttar Pradesh Zamindari Abolition and Reforms Act, 1950 are hereby set aside. The writ petition stands allowed .

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The matter is remitted to the Tehsildar (Nyayik)/Assistant Collector, Tehsil Sardhana, District Meerut, to decide the same afresh in the light of the observations and guidelines made in the decision of this Court in the case of Rishipal Singh, (Supra) and specifically dealing with the objections of the petitioners expeditiously within a period of three months from the date of service of certified copy of the order of this Court.

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Order Date :- 9.7.2024 Ravi Prakash

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(Ashutosh Srivastava, J.)

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

M/S Western Up Tollway Pvt. Ltd. and Another v. State of U.P. and 4 Others

Case brief

What is this about?

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M/S Western Up Tollway Pvt. Ltd. and Another v. State of U.P. and 4 Others

Case brief

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