Allahabad High Court
Devnath Yadav vs State Of U.P. And 3 Others on 3 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 218
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 1131 of 2021 Petitioner :- Devnath Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjay Pathak,Manisha Singh Counsel for Respondent :- G.A. Hon'ble Anjani Kumar Mishra,J.
Hon'ble Anil Kumar-IX,J.
Heard learned counsel for the petitioner and learned AGA for the State.
By means of this writ petition, petition has challenged the first information report dated 18.10.2017 giving rise to Case Crime No.0150 of 2017, under Sections 2/3/5 of the Prevention of Public Property Damages Act, 1984, Police Station Kandharapur, District Azamgarh.
According to the first information report, the petitioner, Manager of Smt. Gujrati Devi Inter College, Azamgarh, has constructed a boundary wall and encroached upon plot no.8332 measuring 2.132 hectares, which land according to the petitioner's counsel is recorded as pasture land in the revenue records.
The contention of counsel for the petitioner is that a detailed procedure is prescribed under the Revenue Code,2006 for eviction of unauthorized occupants from Gaon Sabha property. Therefore, the first information report should not have been lodged, and it is abuse of the process of the law.
It has further been submitted, relying upon the judgement of this Court dated 06.08.2020, passed on an Application Under Section 482 No.9964 of 2020, Munshi Lal and another Vs. State of U.P. and another, that a complete procedure has been provided under the Revenue Code,2006 for eviction of unauthorized occupants from the Gaon Sabha property and therefore, the provisions of the Prevention of Damage to Public Property Act, 1984 cannot be invoked against such unauthorized occupant. The application under Section 482 Cr.P.C. wherein the judgement cited was rendered was one directed against a charge sheet filed against the applicant therein, under Section 2/3 of the Prevention of Damage to Public Property Act, 1984.
Learned AGA has submitted that the proceedings for eviction of an unauthorized occupants under Section 67 of the Revenue Code,2006 are summary proceedings and that the provisions of Prevention of Damage to Public Property Act, 1984 can be simultaneously invoked against an unauthorized occupant if the bundle of facts alleged constitute an offence under the Act. Thereunder, a person can be sentenced to imprisonment, which cannot be done under the provisions of the Revenue Code, 2006.
We have considered the submissions made by learned counsel for the parties and perused the record as also the judgement cited.
At the very outset, it would be relevant to note that the petitioner does not deny having encroached upon Gaon Sabha land. The averment contained in paragraph 6 of the writ petition is quoted below -
"6. That the petitioner is only used a vacant land of Gaon Sabha in the benefit of public at large, but no any administration or public authority gave any notice to the petitioner nor they asked to the petitioner ever nor the petitioner made any construction and nor he dig out the aforesaid public utility land either of the State or Gaon Sabha."
On the earlier occasion, counsel for the petitioner had relied upon the decision of the Apex Court in the State of U.P (Now Uttrakhand) Vs. Rabindra Singh, 2009 (6) SCC 691. In this judgement, the Apex Court has held that the Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1972 could not be invoked for eviction from land belonging to the Gaon Sabha.
The Apex Court had so held as under management of the Gaon Sabha is specifically excluded from the purview of the Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1972 in view of Sections 2(b) and 2(e). The said judgement was not applicable as the proceedings wherefrom the instant writ petition arises were not under the Public Premises Act but under the Prevention of Damage to Public Property Act, 1984.
Counsel for the petitioner had sought time and the matter was adjourned and now the judgement of the learned Single Judge in the case of Munshi Lal (supra) has been cited.
Upon a careful perusal of the Prevention of Damage to Public Property Act, 1984, we find that Section 2(a) of the Act provides that the word "mischief" occurring in the Act shall have the same meaning as in Section 425 of the Indian Penal Code, which is quoted below -
"Section 425 :Mischief : Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Admittedly, the land in question is public utility land having been reserved during consolidation operations for use as pasture land for grazing cattle. Any encroachment thereon, as is admitted by the petitioner, means that the same cannot be used as pasture land. As such the situation of the property has been changed by the petitioner by construction of a boundary wall. Such construction prevents the use of the land encroached upon as pasture land and has diminished its value or utility. The act of the petitioner is therefore, covered by Section 425 of the Indian Penal Code.Therefore, there is no doubt that the encroachment by the petitioner over public utility land, reserved as pasture land, amounts to a mischief within the meaning of the term under Section 425 IPC.
Section 3(1) of the Prevention of Damage to Public Property Act, 1984 provides that who ever commits mischief in respect of any public property shall be punished with imprisonment for a term upto five years with fine.
Land reserved for its use as pasture land is land reserved for a public purpose. It is, therefore, public utility land. It is also land covered by Section 67 of the Revenue Code, 2006 wherein no right can accrue in favour of any person. It is also not disputed that the land in question has been reserved for a public purposes, namely, for its use as pasture land.
It is no doubt true that Section 67 of the Revenue Code, 2006 provides a complete procedure for eviction of unauthorized occupants of Gaon Sabha land, which may or may not be public utility land. The said provision is only for eviction and for recovery of damages on account of such unauthorized occupation and user of land belonging to the State under the management of the Gaon Sabha. It is a purely civil remedy with no criminality, attached. The same encroachment, of public utility land, under the Prevention of Damage to Public Property Act, is a criminal offence, visited by penal consequences, namely, imprisonment and fine. Besides, no order for eviction of an unauthorized occupant can be passed under the Prevention of Damage to Public Property Act. Therefore, in our considered opinion, the two provisions, namely, 67 of the Revenue Code and Sections 2,3 and 5 of the Prevention of Damage to Public Property Act operate in different fields. In case the legislature in its wisdom, considered it fit to declare any action to be also a criminal act, the same, does not require to be read down or its scope to be narrowed down. Since, the two provisions operate in different spheres, it cannot be accepted that there is any overlap. There is no bar for the institution and prosecution of Civil and Criminal proceedings regarding an act, if both have the mandate of law. In any case, an act can given rise to both criminal and civil liability and therefore, both civil and criminal proceedings can be resorted to simultaneously.
Coming to the judgement in the case of Munshi Lal (supra), we find that the learned Single Judge, proceeded on the premise that Prevention of Damage to Public Property Act, 1984 was enacted to curb vandalism and damage to pubic property. The first sentence of its Statement of Objects and Reasons reads as follows -
"With a view to curb acts of vandalism and damage to public property, including destruction and damage caused during riots and public commotion, a need was felt to strengthen the law to enable the authorities to deal effectively with cases of damage to public property."
The use of the word "including" has been given a restrictive interpretation in the judgment cited. We are of the opinion that the said word is illustrative rather that bringing also within its ambit, "destruction and damage caused during riots and public commotion" as stated in the Statement of Objects and Reasons. The use of word "including" therefore, cannot be read to mean that the Prevention of Damage to Public Property Act can be invoked only where damage to public property is occasioned by vandalism, riots or public commotion.
In our considered opinion, the learned Single Judge has taken a narrow view of Section 3(1) of the Act and has primarily relied upon Sections 3(2) of the Act as also upon Section 4 of the Act for arriving at the final conclusion, in the judgement cited.
However, we find that in view of Section 425 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984, the action of the petitioner clearly falls within the purview of these two sections, especially when construction of a boundary wall over public property is clearly admitted by petitioner.
Under the circumstances, therefore, the petitioner is not entitled to any benefit of the judgement in the case of Munshi Lal cited by him, as in the foregoing part of the judgement, we have come to the conclusion that the provision of Section 3(1) of the Prevention of Damage to Public Property Act, 1984 is clearly attracted in the facts and circumstances of the case. Also, the judgement in the case of Munshi Lal is distinguishable on facts. Therein, the land in issue was recorded as Banjar which is, not public utility land, unlike the land in issue in the csae at hand.
The first information report is therefore, not liable to be quashed.
For the same reason, the writ petition is without merit and is hereby dismissed.
Order Date :- 3.3.2021 RKM