Order on C.M. Application No.2 of 2022:

1. Heard learned counsel for the appellant, learned State Counsel, Mr. Dilip Kumar Pandey, learned counsel appearing on behalf of respondent no.5 and Dr. Sanjai Kumar Singh, Advocate who has put in appearance on behalf of respondent no.6/Bhumi Prabandhak Samiti/Gaon Sabha and filed vakalatnama, same is taken on record.

2. The office has reported a delay of 70 days in filing this special appeal.

3. Having heard learned counsel for the parties and also having perused the explanation furnished in the affidavit filed in support of application seeking condonation of delay in preferring this special appeal, application is allowed and delay is hereby condoned.

Order on memo of special appeal:

4. By means of this intra court appeal a challenge has been made to judgment and order dated 28.01.2022, passed by learned Single Judge in Public Interest Litigation No.38006 of 2018.

5. The aforesaid public interest litigation was filed by the petitioner on the allegations that the private respondents had encroached upon Gaon Sabha land comprised in Gata No.366 situate in Village Korihara, Pargana Dalmau, Tehsil Lalganj, District Raebareli. The prayer made in the writ petition was that an appropriate direction may be issued to the Tehsil revenue Authorities to remove the encroachment on the aforesaid Gata No.366 over an area of 0.095 hectare as the same belongs to Gaon Sabha for the reason that it is recorded in the relevant revenue records as banjar land.

6. Learned Single Judge while considering the matter noticed that appropriate proceedings under Section 122-B of U.P. Zamidari Abolidation and Land Reforms Act were instituted against the illegal encroachers and in one of such cases an order of eviction was passed on 19.01.2009. It has also been noticed by learned Single Judge that such eviction order was an ex-parte order, accordingly restoration application was filed, however, said restoration application was decided on 11.09.2019. Learned Single Judge has further noticed that the proceedings under Section 67 (1) of U.P. Revenue Code, 2006 were instituted on 21.10.2017 against respondent no.6 and the said matter was decided on 11.09.2019, whereby eviction order was passed. It is also on record, as noticed by learned Single Judge in the judgment and order dated 28.01.2022, that certain revision petitions have been filed against the orders passed for eviction of the private respondents and noticing these facts the learned Single Judge has disposed of the writ petition with direction to the Sub Divisional Officer/Tehsildar to take effective steps after decision of two revision petitions said to have been filed by the private respondents which are said to be pending before the Board of Revenue.

7. Learned counsel appearing on behalf of the appellant-petitioner however submits that merely pendency of revision petitions against the eviction order would not operate as a stay order against the eviction to be effected by the Tehsil authorities in terms of the orders of eviction passed against the private respondents. It has further been argued by learned counsel for the appellant-petitioner that the appellant was not appropriately heard by learned Single Judge while deciding the writ petition by means of judgment and order dated 28.01.2022 inasmuch as the learned counsel representing the appellant could not connect with the video conferencing on the said date. It has also been argued by learned counsel for the appellant that the private respondents are raising certain constructions on the land which admittedly belong to Gaon Sabha.

8. On the other hand, Mr. Dilip Kumar Pandey, learned counsel appearing on behalf of respondent no.5 and Dr. Sanjai Kumar Singh, learned counsel representing the respondent no.6-Gaon Sabha have submitted that there is no error in the judgment and order passed by learned Single Judge and accordingly the special appeal is liable to be dismissed at its threshold.

9. So far as the submission of learned counsel for the appellant that he was not provided opportunity of hearing is concerned, what we find is that when the matter was heard and decided by learned Single Judge, there may have been certain technical glitches causing some disruptions in connecting the learned counsels representing the respective parties in the matters through video conferencing. However, we have given amplest opportunity of hearing to the learned counsel for the appellant in this special appeal.

10. So far as the assertion by learned counsel for the appellant that private respondents are still raising construction over the land in question is concerned, Dr. Sanjai Kumar Singh, learned counsel for the Gaon Sabha has stated that no such construction is being raised. The respondent nos.6, 7 and 8 are real brothers. The respondent nos.7 and 8 had not put in their appearance even before learned Single Judge hence notices to them are being dispensed with in this special appeal.

11. Since private respondents have taken recourse to statutory remedy available to them by way of filing revision petition against the eviction orders before the Board of Revenue, we find it appropriate to modify the judgment and order dated 28.01.2022, passed by learned Single Judge and provide as under:

(1). The Board of Revenue shall consider and decide the revision petitions said to have been preferred by the private respondents against the orders of eviction and conclude the same, in any eventuality within three months from the date a certified copy of this order is produced before the Board of Revenue.

(2). Depending upon the outcome of the revision petition said to have been filed by the private respondents before the Board of Revenue against the order of their eviction, appropriate steps shall be taken by the Sub Divisional Officer as also by the Tehsildar concerned to ensure that illegal encroachment/possession is removed, if there is no other legal impediment.

(3.). We further provide that till the disposal of the revision petition by the Board of Revenue as aforesaid, the private respondents shall not raise any kind of construction over the land in question in addition to what is existing there at present.

(4). It will be open to the parties to the revision petition including the Bhumi Prabandhak Samiti/Gaon Sabha and the State as well to take all pleas which may be available to them under law before the Board of Revenue including the plea of non-maintainability of revision petitions.

12. Learned counsel for Bhumi Prabandhak Samiti/Gaon Sabha as also learned State Counsel are directed to communicate certified copy of this order to the Board of Revenue, where the revision petitions are pending against the eviction orders and also to the District Magistrate/Sub Divisional Officer and Tehsildar concerned, forthwith.

13. The special appeal thus is disposed of in the aforesaid terms.