LALLAN UPADHYAY Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Heard Mr. Ram Kishore Pandey, learned counsel for the petitioners, Mr. Bhupendra Kumar Tripathi, learned counsel for the respondent No. 4 Gram Sabha and learned Standing Counsel for the State respondents.

(2.) Brief facts of the case are that according to the petitioner, he was granted fisheries lease on 8/9/1987 in respect to the pond, situated over plot Nos. 146, 149 and 179, for a period of 10 years i.e. from 8/9/1987 to 8/9/1997 but State/Gram Sabha is denying the execution of any lease in favour of father of petitioner Nos. 2 to 4. The Land Management Committee interfered with the right of the petitioner for fisheries, hence, petitioner filed Writ Petition No. 38365 of 1995. This Court vide order dtd. 14/5/1995, directed the authority concerned, not to dispossess the petitioner from the plot with respect to his fisheries right. The petitioner filed an application before the District Magistrate on 19/11/1997 and prayed for extension of the fisheries lease for a further period of 10 years. The Addl. District Magistrate (Finance and Revenue) submitted a report dtd. 26/9/1997 and recommended for extending the fisheries lease in favour of the petitioner for a further period of 10 years. The petitioner alleged that he had deposited the requisite amount from time to time which was even accepted by the Land Management Committee without any objection and allowed the petitioner to carry out fisheries in the pond in question. Petitioner further alleged that the local person started interference in the fisheries right of the petitioner with respect to the pond in question, hence, petitioner filed an Original Suit No. 478/2016 for permanent injunction in which an interim injunction was granted by the Civil Judge (Senior Division), Chandauli on 24/11/2016. The interim injunction granted by the Civil Court, according to the petitioner, is in operation, but a complaint was filed by one Mangla Upadhyay of the same village, accordingly, a report was submitted before the Sub Divisional Officer that petitioner has made encroachment on the aforesaid plots in dispute which is recorded as pond in the revenue records. The proceeding for ejectment under Sec. 136 of the U.P. Revenue Code, 2006, has been initiated against the petitioner which was registered as Case No. 323/2022 (Computerized Case No. T202214180200323, State v. Lallan Upadhyay). The Sub Divisional Officer, Chakiya, Chandauli vide order dtd. 24/2/2022, passed an order for ejectment of the petitioner from plot Nos. 146, 149, 149kha as well as imposed damages of Rs.1,01,68,000.00. The Sub Divisional Officer has recorded a finding of fact that after enquiry, it has been found that no fisheries lease was executed in favour of the petitioner and petitioner is occupying the plot in question for the last 25 years in illegal manner which is recorded as pond. Against the order of the Sub Divisional Officer dtd. 24/2/2022, petitioner filed Revision No. 612 of 2022 (Computerized Case No. AL2022141800612, Lallan Upadhyaya v. State of U.P. and others), under Sec. 210 of the U.P. Revenue Code, 2006 before the Board of Revenue along with stay application. During the pendency of the aforementioned revision before the Board of Revenue, an order of attachment was issued by the Sub Divisional Officer on 11/4/2022 as well as proclamation of sale under Sec. 184 of the U.P. Revenue Code, 2006 dtd. 5/5/2022. According to the petitioner, on the basis of the aforementioned proclamation, petitioner's property was sold in violation of Sec. 184(3) of U.P. Revenue Code, 2006. The sale was made through auction and respondent No. 6 purchased the property which was attached in the aforementioned proceeding for Rs.35,36,000.00 on 4/6/2022. Against the order dtd. 4/6/2022, petitioner filed an application to set aside the sale under Sec. 193 of the U.P. Revenue Code, 2006 read with Rule 171 of the U.P. Revenue Code Rules, 2016 along with stay application which has been numbered as Computerized Case No. C202214000001046 of 2022 (Lallan Upadhyay v. S.D.M, Chakiya and others), Under Sec. 193 of the U.P. Revenue Code, 2006 along with stay application. According to the petitioner, no interim order was granted in Revision No. 612/2022, hence petitioner filed WritC No. 12706/2022 (Lallan Upadhyay v. State of U.P. and others) which was disposed of vide order dtd. 1/7/2022, directing the Board of Revenue to pass appropriate orders on the stay application of the petitioner within a period of 10 days. The Court has also directed that the order shall be passed in all the applications within a period of 3 weeks and till the passing of the order, parties shall maintain status quo with respect to nature, character and possession of the property in dispute. A direction was also issued for deciding the revision within a period of 6 weeks. Board of Revenue vide order dtd. 23/2/2023 dismissed the Revision No. 612 of 2022 filed by the petitioners. Against the order dtd. 23/2/2023, petitioners filed a review application before the Board of Revenue which was registered as Review Application No. 1069 of 2023. Board of Revenue has rejected the review application filed by the petitioners vide order dtd. 4/12/2024, hence this writ petition for the following reliefs:

(3.) Learned counsel for the petitioners submitted that the fisheries lease was granted in favour of father of petitioner Nos. 2 to 4 in the year 1987 for the period of 10 years, which was duly approved and agreement was entered into between the father of petitioner Nos. 2 to 4 and Gaon Sabha, therefore, petitioners could not be said to be encroacher or tresspasser of the pond in question. He further submitted that fisheries lease executed in favour of father of petitioner Nos. 2 to 4 in the year 1987 was not cancelled, therefore, there is no justification on the part of the authorities to impose damages upon the petitioners in arbitrary manner. He further submitted that the District Magistrate, Chandauli vide order dtd. 11/9/1997 has directed to grant the lease in favour of father of petitioner Nos. 2 to 4 with effect from 11/9/1997 for a period of five years with enhancement of rent of 20%, as such, the imposition of damages against the petitioners is wholly illegal. He further submitted that the proceeding under Sec. 136 of U.P. Revenue Code, 2006 is not maintainable. He further submitted that the amount of rent has already been paid for the period in which the fisheries right were exercised on behalf of father of petitioner Nos. 2 to 4. He further submitted that no proceeding under Sec. 67 of U.P. Revenue Code, 2006 has been initiated against the petitioners, as such, imposition of exorbitant amount of damages against the petitioners with effect from 1987 is wholly illegal. He next submitted that the authorities should be directed to determine / calculate the amount of damages at the rate as mentioned in the lease deed dtd. 20/4/2022 in respect to the plot in question.