Allahabad High Court
Shiv Mangal Singh vs State Of U.P. Thru. Its Prin. Secy. ... on 12 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1240, 2020 (1) ALJ 281
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 08.5.2019)
(Judgment delivered on 12.7.2019)
Case :- SECOND APPEAL No. - 232 of 2012
Appellant :- Shiv Mangal Singh
Respondent :- State Of U.P. Thru. Its Prin. Secy. Revenue Deptt. & Ors.
Counsel for Appellant :- Santosh Kumar Tripathi,Santosh Kumar Tripathi
Counsel for Respondent :- Ashutosh Nigam,C S C,Yogendra Nath Yadav
Hon'ble Jaspreet Singh,J.
1. This is the plaintiff's second appeal assailing the judgment and decree dated 16.5.2012, passed in Regular Civil Appeal No.138/11 whereby the Additional District Judge, Court No.7, Lucknow, dismissed the aforesaid appeal and the judgment and decree dated 28.5.2011, passed by the Additional Civil Judge, Senior Division, Court No.24, Lucknow dismissed the regular suit no.503/2011 and it is against the aforesaid concurrent judgments that the present second appeal has been preferred.
2. This Court by means of order dated 29.8.2012 admitted the above second appeal on the substantial question of law which is being reproduced hereinafter:-
"Whether the defendant nos.1 to 7 have any authority to demolish the construction, in the capacity of public servant, without prior notice under U.P.Z.A. & L.R. Act or under any other law for the time being in force, without ascertaining to the knowledge of the plaintiff that the demolished construction was raised on land Khasra No.60 or land Khasra No.61?"
3. In order to answer the aforesaid substantial question of law certain facts giving rise to the above second appeal are being noted first. That the plaintiff-appellant instituted regular suit before the Court of Civil Judge, Senior Division, Lucknow registered as R.S. No.503/2001. In the plaint in suit, the plaintiff-appellant had sought the relief for damages mainly on the ground that the plaintiff was the owner in possession of a ''pucca' house constructed over a piece of land measuring 550 square feet, situate in village ''abadi' of village Chak Parawa, Post and Pargana Kakori, Tehsil and District Lucknow. It was stated that the aforesaid ''pucca' house was situate on Khasra Plot No.61 which was demolished arbitrarily and without any notice by the defendants no.4 to 7. It was further pleaded that defendants no.5 to 7 came to the house of the plaintiff on 16.3.2001 at 11:00 AM along with other tehsil officials and police officials along with 10 to 15 labourers and demolished the house of the plaintiff without any order or any authority and also without giving any opportunity to show cause. In Paragraph 6 and 7 it was specifically pleaded that the plaintiff had asked the defendant no.5 for a copy of an order under which the demolition was being undertaken and it was further stated that the plaintiff requested for some time to ascertain regarding the demolition order but no such time was granted nor any order was shown or given and with the help of the police officials and the labour present, the house of the plaintiff was razed to the ground within four to five hours. It was further stated that the plaintiff approached the SDM Lucknow as well as the District Magistrate on 19.3.2001 complaining against the illegal and arbitrary action of defendants no.5 to 7 which bore no fruits. Thereafter, the plaintiff again requested the Commissioner, Lucknow Division on 20.3.2001 and 23.3.2001, however, no action was taken.
4. It was also stated that the plaintiff had got two rooms constructed over the aforesaid land in question and had spent about Rs.80,000/- over it coupled with the fact that in the open land/ sahan to the plaintiff's house, he had six trees, three of ''Jamun' variety and three of Eucaliptus which were also cut by the defendants no.5 to 7 and also a bamboo grove which was cut and destroyed by the defendants no.5 to 7. Thus, for the losses, damages of Rs.1,00,000/- was claimed. Notice under section 80 was served on the defendants and thereafter the suit seeking damages came to be filed on 18.10.2001.
5. The suit was resisted by the defendants no.1, 2, 4 and 5, who filed a joint written statement whereas the defendants no.6 and 8 filed their separate written statement. Primarily, the defence in the written statement of defendants no.1, 2, 4 and 5 and defendant no.6 was to the effect that the plaintiff had mischievously filed the suit with incorrect averments. It has been stated in the written statement that the plaintiff was neither the owner nor his house was constructed over khasra plot no.61. It was specifically stated that the plaintiff had illegally encroached upon the land of khasra plot no. 60 and had started raising illegal construction. Upon the complaint made by the ''Gram Pradhan' and upon the order passed by the Tehsildar Lucknow, the illegal encroachment was demolished in accordance with law.
6. In paragraph 6 of the written statement it was pleaded that the plaintiff in connivance with the defendant no.8, had raised illegal construction on khasra plot no.60 which was reserved as a pond which vested with the Land Management Committee. An attempt was made by the President of the Land Management Committee to stop the illegal construction of the plaintiff but could not succeed. Thereafter, the information was sent to the Additional District Magistrate (Administration) Lucknow, who gave an order to stop the illegal construction to the police station in-charge Kakori and in compliance thereof the construction started by plaintiff, was stopped the very same day, i.e., on 24.11.2000. It was further stated in paragraph 7 that again on 14.3.2002, the plaintiff in connivance with the defendant no.8 yet again started the illegal construction and again the information was given by the Gram Pradhan to the Tehsildar Lucknow and Sub- Divisional Magistrate, Lucknow and upon their instructions and orders the Revenue Inspector Ram Ratan Yadav along with the Lekhpal of the area, the disputed site was measured and the offending illegal construction was identified and it was found that it existed on the reserved land of the Gram Sabha of Khasra Plot No.60 which was recorded as a pond in category 6 and thereafter upon the said report the tehsildar passed the order in pursuance whereof the illegal construction was demolished and the plaintiff was unnecessarily involving the Government officials and maligning them for the acts done in accordance with law in exercise of their duties.
7. It was further pleaded in para 10 that the plaintiff was not in possession, rather he had made an encroachment over the land which was reserved for the pond. Further, the defendants had removed the bamboo which was stacked on the disputed site and the same was sold in auction and the sum of Rs.4,000/- so recovered from the said auction sale of the said bamboo stacks was deposited in the account of the Gram Sabha on the very same day.
8. Thus, the entire crux of the defence was that the plaintiff was encroaching the land belonging to the gram sabha which was recorded as a pond and therefore, the contention of the plaintiff was incorrect and the suit was liable to fail.
9. Upon the pleadings of the parties, the trial court framed nine issues and after the parties led evidence, the trial court recorded a finding that the land in question could not be ascertained since there was no survey conducted and merely on the assertions it could not be ascertained that whether the alleged construction which is said to have been demolished, existed on plot no.61. With the aforesaid findings the issue no.1 was decided in the negative and it was also held that since the plaintiff could not establish that his alleged construction was on plot no.61, thus, his claim for damages also failed and by means of judgment and decree dated 28.5.2011 the Additional Civil Judge, Court No.24, Lucknow dismissed the suit.
10. The plaintiff preferred a regular civil appeal before the District Judge, Lucknow which was registered as RCA No.138/2011. Thereafter, it was transferred to the court of Additional District Judge, Court no.7, Lucknow, who also after hearing the parties by means of judgment and decree dated 16.5.2012 affirmed the findings of the trial court and dismissed the appeal. The plaintiff being aggrieved, has preferred the above second appeal and as already indicated above, was admitted by this Court on the substantial question of law as reproduced hereinabove first.
11. The court has heard Shri Gaurav Mehrotra, learned counsel for the appellant and the learned Additional Chief Standing Counsel for the respondent State Authorities and also perused the record.
12. The submission of Shri Mehrotra is that both the courts misdirected itself to the controversy involved in the above matter. It was argued that irrespective of the fact whether the construction existed on plot no.60 or 61 it ought to have been considered whether the demolition, which is admitted by the respondent, was carried out in accordance with law or not ? It has been urged that even assuming though not conceded that the construction of the plaintiff was on plot no.60, even then the respondent-State was required to adopt the legal process, as contemplated and could not have demolished the house without complying with the legal formalities and thus the action of the respondent in any case was prima facie bad. It has also been urged that Section 122-B of the "Uttar Pradesh Zamindari Abolition and Land Reforms Act" (hereinafter referred as '' UPZALR Act') provides for a complete procedure and Rule 115-C framed in pursuance thereto provides the manner in which the authorities are required to act. Since the aforesaid process has not been complied with, thus, the act of demolishing the house of the plaintiff was illegal and the plaintiff was entitled to succeed for damages.
13. Per contra, the learned Additional Chief Standing Counsel has submitted that the court requires to differentiate between cases where the encroachment on public utility land or land belonging to the Gram Sabha or the Land Management Committee has been accomplished and cases where a person is in the process of encroaching upon the land of the Gram Sabha/ Land Management Committee. In the former case, the process of law as provided under section 122 of the UPZALR Act is required to be followed, however, where a person is in the process of encroaching the land of the Gram Sabha, the true owner is entitled to resist any such illegal activity and can stop the encroacher from carrying out this activity and thus, since it was specifically pleaded that the plaintiff was in the process of illegally raising constructions and despite having been put to notice, he did not stop. Thus, State authorities were justified in using the appropriate measure and force to demolish and to remove the illegal encroachment, which in any case was on the pond land on Khasra Plot No.60 and not on Khasra Plot No.61.
14. It is in the backdrop of the above submissions that it is to be seen whether the defendant respondents had any authority to demolish the construction without prior notice under any law for the time being in force and without ascertaining the fact whether the construction so raised existed on plot no.60 or 61.
15. Since the suit was filed by the plaintiff-appellant and it was he, who had asserted that the constructions existed on plot no.61 whereas it is the specific pleading of the defendant that the offending constructions were in the nature of encroachment and existed on khasra plot no.60 which was recorded as a pond land. Under these circumstances, the plaintiff being the dominus litus and in order to get the relief for damages, it was incumbent upon the plaintiff to have established the fact that the constructions, so alleged to have been demolished, existed on plot no.61.
16. From the evidence on record, it was clear that plot no.60 and 61 are adjacent to each other, however, there was no clear evidence to indicate the exact location. The same could only have been ascertained if a survey commission could have been done and to that extent the finding returned by the two courts that the plaintiff failed to establish that the construction existed on plot no.61 was not established and there can be no fault with the findings that the plaintiff failed to prove this aspect of the matter.
17. However, the question still remains that irrespective of the fact whether the constructions existed on plot no.60 or 61, whether it could be demolished without giving an opportunity to the plaintiff and without any notice. From the perusal of the evidence available on record, it would indicate that Shri Sharad Kumar Pal, who was examined as DW-1, had made a clear averment in his examination-in-chief that the then Lekhpal Shri Vimal Kishore and the Revenue Inspector, who received information that the plaintiff along with the defendant no.8 Shri Kallu had encroached upon the land of khasra plot no.60 which was recorded as a pond land and on the written report dated 14.3.2001 the action was taken by the then Sub-Divisional Magistrate, who ordered on 14.3.2001 to demolish the illegal construction. The copy of the order dated 14.3.2001 was brought before the court below as paper bearing no. Ga-49 and Ga-50. However, in his cross-examination, the aforesaid documents were confronted and he stated that these are the photocopies while the originals are in the court of the tehsildar. He could not give any reason why he did not file the originals. He further admitted that for seeking demolition or eviction from any land belonging to the Gram Sabha proceedings are initiated in terms of Rule 115-C and 115-D framed under UPZALR Act. Upon being further cross-examined, he stated that the disputed construction of the house was identified at the site by the Revenue Inspector Shri Ram Ratan and it was stated Shri Ram Ratan had made the entire measurements in front of him, however, when the document Ga-15 was shown to him, he could not give a clear answer as to how much area of ''rasta' was around pond land. He further stated that he had received the orders of demolition on phone from the Sub-Divisional Magistrate and that the paper bearing no. Ga-50 it did not bear the signatures of the SDM.
18. From the perusal of the document Ga-50 it indicates that an information was given by Shri Vimal Kishore stating that on the pond land situate on the plot no.60 Kallu had raised constructions and the same required to be demolished, accordingly, the permission was sought for carrying out the demolition. At the bottom there is a noting which permits the demolition to take place and it is in furtherance thereof that the demolition took place on 14.3.2001.
19. In the aforesaid circumstances, it could not be disputed by the respondents that even though if the construction was on plot no.60 which was the pond land yet in order to initiate any demolition or eviction the State could not have taken the law in its own hands and that it was required to follow the due procedure and process, as provided in law.
20. At this juncture, it will be appropriate to state that Section 122-B of the UPZALR Act provides for a complete procedure and confers power on the authorities to take action against any person who damages or misappropriates any land belonging to the gaon-sabha or has encroached upon the same. Section 122-B is being reproduced hereinafter for ready reference.
"122-B. Powers of the Land Management Committee and the Collector.- (1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land.
(3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding thirty days from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land any may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of the opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2) he shall discharge the notice.
(4-A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333.
(4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
(4-C) Notwithstanding anything contained in Section 333 or Section 333-A, but subject to the provisions of this section -
(i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4-A) and (4-D), be final,
(ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-D), be final.
(4-D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a Court of competent jurisdiction to establish the right claimed by him in such property.
(4-E) No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A) Explanation.- For the purposes of this section, the expression ''Collector' means the officer appointed as ''Collector' under the provisions of the U.P. Land Revenue Act, 1901 and includes an Additional Collector.
4-F. Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before May 13, 2007 and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, Sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land.
Explanation.- The expression "agricultural labourer" shall have the meaning assigned to it in Section 198.
5. Rules 115-C to 115-H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, 1950 as amended by the Uttar Pradesh Land Laws (Second Amendment) Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provisions of this Act."
21. In the same vein Rule 115-D and 115-E have been framed which are also being reproduced for ready reference:
"115-D. (1) Where the Land Management Committee or the local authority, as the case may be, fails to take action in accordance with Section 122-B, the Collector shall -
(a) on an application of the Chairman ; Member or Secretary of the Committee ; or
(b) On a report made by the Lekhpal under sub-rule (3) of Rule 115-C, or
(c) On the report of the local authority concerned or its official referred to in the proviso to sub- rule (5) of Rule 115-C;
(d) On facts otherwise coming to his notice;
Call upon the person concerned through notice in Z.A. Form 49-A to refrain from causing damage or misappropriation, to repair the damage or make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or to show cause against it in such time not exceeding fifteen days as may be specified in the notice.
(2) Before issuing a notice under sub-rule (1), the Collector may make such inquiry as he deems proper and may obtain information on the following points -
(a) full description of damages or misappropriation caused or the wrongful occupation made, with details of village, mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market value thereof;
(b) full address along with father's name of the person responsible for the damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or misappropriation, class of soil of the plot numbers involved and hereditary rates applicable to them; and
(d) value of the property damaged or misappropriation calculated at the prevailing market rate in the locality.
115 E. (1) Where any direction for eviction or recovery of any amount of compensation has been issued by the Collector under sub section (4) of Section 122-B an order in Z.A. Form 49-C shall be sent to the Tahsildar concerned for execution who shall as far as possible follow the procedure laid down in paragraphs 137 and 138 of the Revenue Court Manual.
(2) The order under Z.A. Form 49-C shall also specify the amount which shall be recovered from the person concerned as expenses of execution which shall include the pay and allowances of the staff deputed to be calculated according to the rates mentioned in paragraphs 405 of the Revenue Court Manual."
22. Thus, it would be seen that Section 122-B is applicable to any land belonging to the Gram Sabha or the local authority, which in the present case would also include the pond land on khasra plot no.60. It is no doubt true that the Revenue Courts have got power to direct the demolition of construction in cases where the land belonging to Gram Sabha has been unauthorizedly occupied by any person or any person has misappropriated or damaged any property of the gaon sabha. The proceedings under section 122-B of the UPZALR Act are of summary nature and are initiated by the Competent Authority to evict the unauthorized occupant from the land of Gram Sabha. In case if there is a serious question of title which is involved then such adjudication by the Competent Authority shall be subject to the decision given by the competent civil court. Thus, it would be seen that where competent authority can exercise the jurisdiction to evict an unauthorized occupant from the land of Gram Sabha but in cases where there is a serious dispute in respect of title then the aggrieved party as an option to file a regular suit in the court of the competent jurisdiction to ventilate his grievances. The Court is fortified in its view in light of the decision rendered by this Court in the case of Rajendra vs. Additional Commissioner Devi Patan Mandal, Gonda, 2007 (25) LCD Page 565.
23 Shri Gaurav Mehrotra, learned counsel for the appellant has relied upon the Division Bench decision of this Court in the case of Om Prakash Verma vs. State of U.P. and Others Writ Petition No.6472 (MB) of 2012 decided on 28.5.2014 wherein this Court has considered the provisions of Section 122 read with Rule 115-C and 115-D. The relevant portion is being reproduced hereinafter :-
"We may emphasize that the scheme contained in Section 122-B (1) and (2) not only empowers the Assistant Collector to act upon the information received from the Land Management Committee or from the local authority concerned but it empowers the Assistant Collector to act on the information received otherwise as well. The occurrence of word 'otherwise' in sub-section (2) of Section 122-B widens the source of information on which the Assistant Collector can act and take appropriate proceedings for eviction of unauthorized/illegal occupants. The initiation of proceedings by the Assistant Collector is not confined only on the information received from the Land Management committee or local authority concerned but the Assistant Collector can act and initiate proceedings on an information received by him 'otherwise' as well. The word 'otherwise' occurring in sub-section (2) of Section 122-B of the Act entitles even a third person i.e. a person other than the land management committee or a local authority to furnish information about unauthorized occupation of the gaon sabha land to the Assistant Collector, who on being satisfied that property has been damaged/misappropriated or is being illegally occupied, is duty bound to issue notice to such person.
It is common experience that for seeking remedy in respect of illegal occupation of gaon sabaha land and other public utility land the person concerned usually rushes to this Court by way of filing writ petitions without taking recourse to the remedy available under sub-section (2) of Section 122-B of the Act.
As observed above, the Assistant Collector can proceed to initiate the proceedings for removal of illegal occupation of gaon sabha land or the land belonging to a local authority not only on the report to the said effect being submitted to him by the land management committee or local authority alone but even on application made or information given to him 'otherwise', that is to say that said proceeding has to be initiated by the Assistant Collector on an application made by a person other than the land management committee or the local authority also. In our considered opinion, sub-section (2) of Section 122-B enables and entitles the third person other than the land management committee or local authority, to initiate proceeding for eviction from unauthorized occupation of gaon sabha land by moving an application for furnishing information under sub-section (2) of Section 122-B of the Act.
Sub-section (3) of Section 122-B of the Act states that if the cause shown on issuance of show cause notice, time for which will not exceed 30 days, is not found sufficient or the person fails to show cause, the Assistant Collector will direct such a person to be evicted from the land and for the said purpose he may use or cause to be used such force as may be necessary and further that Assistant Collector may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. Thus, sub-sections (1) (2) and (3) of Section 122-B of the Act not only contain appropriate and adequate provisions and mechanism for ensuring eviction of illegal occupation from gaon sabha land but also empower the Assistant Collector to use force for such eviction. It also empowers the Assistant Collector to recover the amount of compensation for damage or wrongful occupation or misappropriation as arrears of land revenue.
Apart from the provisions contained in Section 122-B (1) (2) and (3), Rule 115-C framed under U.P.Z.A & L.R.Act cast duty on the land management committee to preserve or protect the properties vested in gaon sabha from damage, misappropriation and wrongful occupation. Sub-rule (2) of Rule 115-C further mandates that Chairman or any member or the Secretary of the land management committee shall report all cases of damage to or misappropriation of wrongful occupation of gaon sabha property to the Collector praying for recovery of compensation for damage or misappropriation of the property or illegal possession of the land together with damages for wrongful occupation thereof. Sub-rule (3) of Rule 115-C also directs as a duty to the Lekhpal to report to the Collector through Tehsildar of all cases of wrongful occupation of the gaon sabha properties as soon as the same comes to his notice and in any case after conclusion of Kharif and Rabi Partal every year. The Tehsildar, in sub-rule (4) of Rule 115-C has also been cast with the duty to satisfy himself in the month of May every year that each Lekhpal has submitted all such reports.
Rule 115-C of U.P.Z.A. & L.R Rules, 1952 reads as under:-
"115-C (1) It shall be the duty of the Land Management Committee to preserve or protect from damage, misappropriation and wrongful occupation, all properties vested in it under Section 117, including vacant land and land over which it is entitled to take possession under the Act and to manage and maintain all such property and land in its possession.
(2) The Chairman or any Member or the Secretary of the Land Management Committee shall report all cases of damage to; or misappropriation of wrongful occupation of the property referred to in sub-rule (1) to the Collector praying for recovery of compensations for damage to, or misappropriation of the property or possession of the land together with damages for wrongful occupation thereof.
(3) It shall be the duty of the Lekhpal to report to the Collector through the Tahsildar all cases of wrongful occupation of damages to and misappropriation of the property vested in the Gaon Sabha as soon as they come to his notice and in any case after the conclusion of Kharif and Rabi Partal every year.
(4) The Tahsildar shall satisfy himself in the month of May every year that each Lekhpal has submitted all such reports.
(5) The provisions of sub-rules (1) to (3) shall mutatis mutandis apply to a local authority in respect of the properties vested in it, including vacant land and land over which it is entitled to take possession, under the Act:
Provided that the duty in respect of sub-rule (3) above shall be discharged by such official of the local authority as may be decided upon by the local authority concerned."
The provision of Rule 115-D of U.P.Z.A. & L.R Rules, 1952 is also worth noticing, which runs as under:-
"115-D (1) Where the Land Management Committee or the local authority, as the case may be, failes to take action in accordance with section 122-B, the Collector shall-
(a) on an application of the Chairman, Member of Secretary of the Committee; or
(b) on a report made by the Lekhpal under sub- rule (3) of Rule 115-C; or
(c) on the report of the local authority concerned or its official referred to in the proviso to sub-rule (5) of rule 115-C; or
(d) on facts otherwise coming to his notice;
call upon the person concerned through notice in Z.A. Form 49-A to refrain for causing damage or appropriation, to repair the damages, to make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or to show cause against it in such time not exceeding fifteen days as may be specified in the notice.
(2) Before issuing notice under sub-rule (1), the Collector may make such inquiry as he deems proper and may obtain information on the following points-
(a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market-value thereor;
(b) full address along with father's name of the person responsible for the damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or miappropriation, class of soil of the plot numbers involved nad hereditary rates applicable to them; and
(d) value of the property damaged or misapprpriation calculated at the prevailing market rate in the locality."
Thus, in case of failure by the land management committee or local authority to take action in accordance with Section 112-B, the Collector is duty bound to call upon the person concerned by issuing notice to refrain for causing damage or misappropriation, or to repair the damage, or to make good the loss or remove wrongful occupation and to pay damages in case of illegal occupation. The Collector has been empowered to act under Rule 115-D on an application by the Chairman and Member of Secretary of the Land Management Committee or on a report made by the Lekhpal under sub-rule (3) of Rule 115-C, or on the report of local authority concerned or its official or on facts otherwise coming to his notice. Thus, the provision contained in Rule 115-D (d) is wide enough to permit any person to move application to the Collector for removal of unauthorized occupation from the gaon sabha land.
On a combined reading of Section 122-B, Rule 115-C and Rule 115-D, we have no hesitation to hold that U.P.Z.A & L.R. Act and Rules contain an adequate and appropriate procedure and statutory mechanism to take action not only to evict the illegal occupants from gaon sabha land but also to refrain any person from misappropriation and wrongful occupation of all gaon sabha lands."
"In view of the discussions made and reasons given above, the instant bunch of writ petitions is disposed of in the following terms:-
1.The District Collectors and other revenue authorities of the district shall ensure that the statutory duty cast on the Land Management Committee and the local authority under Section 122-B (1) of U.P.Z.A. & L.R. Act and Rule 115-C (1) and (2) of the U.P.Z.A & L.R. Rules is attended to in all seriousness.
2.The District Collectors shall ensure that Lekhpal of the area concerned attends his duty cast on him under sub-rule (3) of Rule 115-C of U.P.Z.A & L.R. Rules, inasmuch as, the Lekhpal will report to the Collector through Tehsildar all cases of wrongful occupation of damage to; or misappropriation of the wrongful occupation of the gaon sabha property as soon as they come to his notice and in any case after the conclusion of Kharif and Rabi Partal every year.
3.The District Collectors shall also ensure that Tehsildar of the area concerned shall satisfy himself in the month of May every year that each Lekhpal has submitted reports as envisaged under sub-rule (3) of Rule 115-C of U.P.Z.A & L.R. Rules.
4.The District Collectors are also directed to take action in accordance with the provision of Rule 115-D in case of failure on the part of Land Management Committee or the local authority, as the case may be.
5.The Assistant Collector, within whose jurisdiction any illegal occupation or damage or misappropriation of gaon sabha land is reported, shall immediately institute the proceedings and conclude the same in accordance with law. The Assistant Collector (who in accordance with para 315 of Revenue Manual is the Tehsildar of the area concerned) shall not only institute the proceedings on information received/application made under Section 122-B (1) of U.P.Z.A & L.R. Act by Land Management Committee or the local authority concerned but will also act on an application moved otherwise by any person alleging therein illegal occupation on and damage caused to gaon sabha land and will conclude the same in accordance with law with expedition.
6.The District Collectors are also directed to ensure that once the order for eviction or payment of compensation as damages is passed, the same is executed at the earliest, in appropriate cases by using such force as may be necessary. Realization of the amount of compensation for damage, misappropriation or wrongful occupation of gaon sabha land shall also be made from the person concerned as arrears of land revenue expeditiously.
7.So far as the illegal possession of the housing sites alloted to the individuals is concerned, we may refer to the provision contained in Section 122-D, which provides a complete procedure for restoration of possession of land alloted to any person for the purposes of building of house and on such land any person other than the allottee is in occupation. Under Section 122-D, as well, the Assistant Collector has been empowered to take action for restoration of the possession to the allottee of the land allotted for housing purpose, if the same is in illegal occupation of any other person.
8.Sub-section (2) of Section 122-D of U.P. Z.A. & L.R. Act provides that a person having been once evicted under Section 122-D (1) is liable to be punished with imprisonment for a term which may extend to two years and which shall not be less than three months and also with fine which may extend to three thousand rupees. Thus, in case any person re-occupies the land allotted as housing site, after once being evicted, he can be proceeded against by launching criminal prosecution under Section 122-D (2) of the Act. The District Collectors shall ensure that besides eviction proceedings under Section 122-D, criminal proceedings are also instituted against such persons.
24. Thus, from the plain reading of the decision relied upon by the learned counsel for the appellant it would be seen that this Court has taken note of the relevant provisions and have given directions to the authorities the manner in which it shall exercise its powers while taking recourse to the provisions of Section 122 B.
25. If the principles as extracted above are applied to the present case at hand, it would indicate that the respondent has failed in its duty in adhering to the process of law as indicated hereinabove.
26. The respondent was required to issue a show cause notice to the plaintiff- appellant and only upon adopting the due process the proceedings ought to have been initiated and a proper order ought to have been passed. Since in the present case the respondents miserably failed to produce any document on record which could establish that a show cause notice as contemplated in terms of Rule 115-C and D was issued nor could the respondent bring on record any order passed by competent authority in exercise of power under section 122 of the UPZALR Act. The law prescribes a format for the issuance of notice under section 115-C which is form bearing no.49-ka. For ready reference the aforesaid format of form 49 ka upon which the notices are required to be issued, is being reproduced hereinafter :-
xzke lHkk] xzke iapk;r rFkk Hkwfe izcU/kd lfefr eSuqvy [v/;k;&6 t0 fo0 vkdkj i= la[;k 49&d (fu;e 115&?k ifjPNsn 160 nsf[k;s) dysDVj@ijxus ds bUpktZ vflLVsUV dysDVj@rglhynkj ds U;k;ky; esa
rglhy -----------------------------------ftyk ----------------------------------------------------------------------------------------------
O;ogkj la[;k ---------------------- o"kZ --------------------------------------------------------------------------------------------------
[xzke lHkk] LFkkuh; izf/kdkjh ----------------------------------------------------------------------
cuke Jh@Jherh -------------------------------------------------------vkRet@iRuh --------------------------------------------------
fuoklh xzke ----------------------------------------------------- ijxuk -------------------------------------------------------
rglhy --------------------------------------------------------------ftyk ---------------------------------------------------------
pwafd esjk lek/kku gks x;k gS fd vkius fufnZ"V [xzke lHkk] LFkkuh; izkf/kdkjh dk uke ------------------- esa fufgr lEifRr ij nks"kiw.kZ v/;klu fd;k gS ;k mls nks"kiw.kZ {kfr igqqpkbZ gS ;k {kfr igqapk jgs@ igqapk jgh gSa ;k mldk nqfoZfu;ksx fd;k gS vr,o] bl uksfVl ds ek/;e ls vkils vis{kk dh tkrh gS fd {kfr igqapkus ;k nqfoZfu;ksx djus ls fojr jgsa] {kfr dh iwfrZ djsa ;k nqfoZfu;kstu ds dkj.k gqbZ gkfu dh iwfrZ djsa ;k nks"kiw.kZ v/;klu gVk ysa vkSj {kfriwjd /kujkf'k dk Hkqxrku djsa ;k dksbZ vU; ckr vFkkZr ------------------------- u djsa ;k djus ls fojr jgsa ;k bl uksfVl ds izkIr gksus ds iUnzg fnu ds Hkhrj blds fo:) dkj.k crk;sa A C;kSjk (,d) dh xbZ {kfr] fd;s x;s nqfoZfu;kstu ;k nks"kiw.kZ v/;klu dk iwjk fooj.k ------------
(nks) xzke] eksgYyk ;k okMZ] ijxuk] rglhy vkSj ftyk ------------------------------------------------------
(rhu) xkVk la[;k --------------------------------------------------------------------------------------------------------------------------
(pkj) {ks=Qy ----------------------------------------------------------------------------------------------------------------------------------
(ikap) lhek pkSgnnh --------------------------------------------------------------------------------------------------------------------------
(N%) {kfrxzLr ;k nqfoZfu;kstu lEifRr ----------------------------------------------------------------------------------
(lkr) mldk cktkj ewY; vkSj {kfriwfrZ ds fy, fd;s x;s nkos dh /kujkf'k -----------------------------
(vkB) nks"kiw.kZ v/;klu] {kfr ;k nqfoZfu;kstu vof/k ----------------------------------------------
(ukS) vurxzLr xkVk la[;kvksa dh feVVh dk oxZ -------------------------------------
(nl) iz;ksT; ekS:lh nj vkSj {kfriwfrZ ds fy, fd;s x;s nkos dh /kujkf'k -----------------------------
vkidks ;g Hkh lwfpr fd;k tkrk gS fd vki O;fDrxr :i ls ;k fdlh izkf/kdkjh vfHkoDrk ds ek/;e ls fnukad ----------------------------------------- dks esjs U;k;ky; esa vuqikyu dh fjiksVZ nsus ;k mij fufnZ"V dkj.k crkus ds fy, mifLFkr gksa vkSj vkidks ,slk u djus ij bl ekeys esa fu.kZ; ys fy;k tk;sxk vkSj vkids fo:) ,di{kh; vkKk ikfjr dj nh tk;sxh A v/;k;&6] Hkwfe izcU/kd lfefr ds dk;Z dk i;Zos{k.k esjs gLrk{kj ls vkSj U;k;ky; dh eqgj yxkdj vkt fnukad ------------------------------- 19 ---------------------- dks tkjh fd;k x;k A ihBklhu vf/kdkjh ---------------------------------
inuke ---------------------------------------------------
fnukad ---------------------------------------
U;k;ky; dh eqgj
27. Since the law contemplates and prescribes an entire procedure and a process then the Authority concerned must exercise its powers in accordance with the rule and process as laid by law and not in any arbitrary fashion. It is trite law that if the law prescribes an Act to be done in a particular manner then it ought to be done in that manner or not at all. Apparently, from the perusal of the evidence cum the statement given by the respondent witness Shri Sharad Kumar Pal who was the sole witness examined on behalf of the defendants- respondents, it clearly establishes one fact that the procedure as prescribed under section 122 along with the Rules 115 C and 115-D has not been complied with. Thus, this Court has no hesitation in holding that the alleged demolition undertaken by the respondents on 14.3.2001 was clearly arbitrary and against the provisions of law.
28. However, in order to seek damages for the aforesaid illegal Act the plaintiff ought to have led evidence to establish the existence of his construction and to justify the loss suffered by him. The plaintiff has claimed a damages of Rs.100000/- on the premise that he had spent about Rs.80,000/- on the construction and Rs.25,000/- for the cutting of the trees. From the evidence available on record the plaintiff has attempted to establish by filing certain receipts for the construction material to establish his claim for damages. It has been the case of the plaintiff that he has been residing in the two pucca rooms which was his house and the same has been available to him since the time of his father, however, no document regarding the existence of any electricity, telephone or any other public utility bill to indicate the continuous residence and use of the said ''pucca' construction has been filed or brought on record. The receipts for the construction material which had been filed by the plaintiff, they all relate to the period from 26.11.2000 till 13.12.2000. The same are only invoices, however, there is not a single receipt which indicates that the money has been paid/ received against the aforesaid bills. There is no evidence to indicate that the plaintiff had made the payments of the aforesaid bills, neither any receipt from the trader has been issued indicating it having received aforesaid sum nor any bank statement has been brought on record to establish the payment made and as already indicated above there is no document which establishes that the plaintiff had been residing in his pucca construction existed over which he has spent around Rs.80,000/- as alleged.
29. In view of the detailed discussion this Court is of the considered view that as far as the question of law as framed is concerned it is answered in the affirmative and held that the respondents did not adopt the due process of law while undertaking the demolition, however, as the plaintiff has failed to establish its claim for damages accordingly the appeal is dismissed and the judgment and decree of the two courts dated 28.5.2011 and 16.5.2012 is affirmed and in the circumstances the costs are made easy.
Date :- 12 .7.2019 mks (Jaspreet Singh, J.)