Allahabad High Court
Ashok Kumar vs State Of U P And 2 Others on 21 January, 2021
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 1692 of 2020 Petitioner :- Ashok Kumar Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Gulab Chandra Tiwari,Shreesh Bahadur Tripathi Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Ref:- Impleadment Application Heard.
Application stands allowed.
Let Ram Nayan @ Babbu son of Sri Jag Mohan, resident of village Duadali, Pargana Karvi, District Chitrakoot be impleaded as respondent no.4 in the array of the parties.
Ref:- Writ Petition Petitioner is a resident of village Duadali Kalwaliya, Rajapur, District Chitrakoot and claims to be a social worker. He alleges that private respondent no.4 has encroached land of plot no.484 area 2 bigha, belonging to State, but possession over the land has not been restored by the competent authority to the State/Land Management Committee. It is submitted that by virtue of section 67 of the U.P. Revenue Code, 2006, (hereinafter referred to as 'Code of 2006') Assistant Collector is enjoined to take action in such matters but no action has yet been taken.
Learned Standing Counsel states that the Code of 2006 has been enacted by the State which is a complete Code for resolution of such dispute, and therefore, this Court need not to entertain the present petition at this stage.
Section 67 of the Code of 2006 contains provision to deal with damages, misappropriation and wrongful occupation of the Gram Panchayat properties. Sub-section (2) of section 67 provides that where information is received by the Assistant Collector from the Land Management Committee or other authority or the Lekhpal concerned, as the case may be, or otherwise, and the Assistant Collector is satisfied that any such property 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 Code, he shall issue notice to the person concerned to show cause as to why compensation for damage, misappropriation or wrongful occupation is not realized.
Sub-section (3) of section 67 deals with the exigency where the person concerned fails to show cause in terms of the liberty granted in sub-section (2) or where the reply is not satisfactory. If the Assistant Collector is not satisfied with the cause shown or no reply is given he may direct such person to be evicted from land and for such purpose use or cause to be used such force as may be necessary, in addition to award of compensation for damage or misappropriation, and if the explanation to the show cause notice is accepted, the Assistant Collector shall discharge the notice. Any person aggrieved by the order of the Assistant Collector under sub-section (3) of sub-section (4) has remedy of preferring an appeal to the Collector. Sub-section (7) provides for the procedure to be followed as is prescribed.
Rule 67 of the U.P. Revenue Code Rules, 2016 (hereinafter referred to as ' Rules of 2016') contains an elaborate procedure for conduct of enquiry for the purposes of conduct of proceedings under section 67 of the Code. Provision also exists for wrongful occupation to continue if the person concerned has cultivated such land on conditions specified in sub-rule (5) of Rule 67 till the crop itself gets harvested. Sub-rule (6) provides that Assistant Collector shall make all endeavour to conclude the proceedings under Section 67 of the Code within the period of ninety days from the date of issuance of the show cause notice. Rule 67 reads as under:-
"67. Further inquiry by Assistant Collector(Section 67)-(1) On receipt of the information under Rule 66, or on facts otherwise coming to his knowledge, the Assistant Collector may make such inquiry as he deems proper and may obtain further information regarding the following points:-
(a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, plot number, area, boundary, property damaged or misappropriated and market value thereof;
(b) full address along with parentage of the person responsible for such damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or misappropriation and class of soil of the plots involved;
(d) value of the property damaged or misappropriated calculated at the circle rate fixed by the Collector and the amount sought to be recovered as damages.
(2) The Assistant Collector shall thereafter proceed to take action under Section 67(2) and for that purpose issue a notice to the person concerned in R.C. Form-20 to show cause as to why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.
(3) If the notice referred to in Section 67(2) remains uncomplied with or if the cause shown by the person concerned is found to be insufficient, the Assistant Collector may direct by order that-
(a) such person be evicted by using such force as may be necessary; or
(b) the amount of compensation for damage or wrongful occupation ordered by the Assistant Collector, if not paid in specified time, may be recovered as arrears of land revenue, including the amount of expenses referred to in sub-rule (3).
(4) The amount of damages sought to be recovered and the expenses of execution of the order shall be specified in such notice, which shall be determined in the following manner:-
(a) In the case of damage or misappropriation, the amount of damages shall be assessed at the prevailing market rate.
(b) In the case of unauthorized occupation of any land, the amount of damages shall be the amount equal to the five percent of the market value of the land calculated at the circle rate fixed by the Collector for each year of unauthorized occupation.
(c) The expenses of execution of the order shall be assessed on the basis of one day's pay and allowances payable to the staff deputed.
(5) If the person wrongfully occupying the land has done cultivation therein, he may be allowed to retain possession thereof until he has harvested the crops subject to the payment by him of the amount equal to the five percent of the market value of the land calculated as per the circle rate which shall be credited to the Consolidated Gaon Fund or the Fund of the local authority other than the Gram Panchayat as the case may be. If the person concerned does not make the payment of the aforesaid amount within the period specified in the notice in R.C. Form-20, the possession of the land shall be delivered to the Land Management Committee or the local authority, as the case may be, together with the crop:
Provided that where such person again wrongfully occupies the same land or any other land within the jurisdiction of the Gram Panchayat or the local authority as the case may be, he shall be evicted therefrom forthwith and possession of the land vacant or together with the crop thereon shall be delivered to the Land Management Committee or the local authority as the case may be.
(6) The Assistant Collector shall make an endeavour to conclude the proceeding under section 67 of the Code within the period of ninety days from the date of issuance of the show cause notice and if the proceeding is not concluded within such period, the reasons for the same shall be recorded.
(7) Nothing in sub-rule (5) shall debar the Land Management Committee or the local authority as the case may be from prosecuting the person who encroaches upon the same land second time in spite of having been evicted under the Code or the Rules, under Section 447 of the Indian Penal Code, 1860.
(8) There shall be maintained in the office of each Collector a register in R.C. Form-21 showing details of the amount ordered to be realized on account of damages and compensation awarded in proceedings under section 67.
(9) A similar register shall also be maintained by each tahsildar showing realization of damages and compensation awarded in such proceeding. The entries made in the register maintained at tahsil shall be compared with the register maintained by the Collector to ensure accuracy of the entries made therein.
(10) A progress report showing realization of damages and compensation awarded in proceedings under Section 67 shall be sent to Board of Revenue, U.P., Lucknow by the fifteenth day of April and October every year. The Board after consolidating the report so received from the districts shall send it to the Government.
(11) Nothing in Rules 66 and 67 shall debar any person from establishment of his right, title or interest in a court of competent jurisdiction in accordance with the law for the time being in force in respect of any matter for which any order has been made under Section 67 of the Code."
Allegation made in public interest litigation that private respondents have encroached upon state land or such property belonging to State is in wrongful occupation or is being damaged has thus to be ascertained by the competent authority in the manner as is specified in the Code and Rules. Important rights are recognized in the private persons to defend against the allegations made. The procedure also provides for remedy of appeal in such circumstances.
Once the statutory scheme is absolutely clear it is expected that grievances raised with regard to damage, misappropriation or wrongful occupation of Gram Panchayat property is dealt with by the competent authority in the manner as is specified. Such issues need not be entertained by this Court under Article 226 of the Constitution of India at the first instance. This is particularly so as defence of the private respondent, who is said to have encroached upon state land needs to be dealt with in the manner specified.
From a perusal of the records brought on record it appears that proceedings in the manner as are specified under section 67 readwith rule 67 have not been initiated so far. This Court, therefore, is not inclined to issue any direction in the present petition, as is prayed. Remedy of the petitioner would be to approach the Assistant Collector first by initiating proceedings under section 67 of the Code of 2006, which are in the nature of quasi-judicial proceedings. The concerned Assistant Collector will have to register a case and issue notice to the person concerned, and thereafter conclude the proceedings in the manner, as is prescribed.
It goes without saying that in the event petitioner approaches the Assistant Collector alongwith materials in support of his grievance regarding damage, misappropriation or wrongful occupation of Gram Panchayat property, in terms of section 67 of the Code of 2006 and the Assistant Collector upon examination of such materials is satisfied that such property has actually been damaged, misappropriated or encroached, shall proceed to issue notice to the person concerned and conclude the proceedings in the manner as is prescribed in the Code of 2006 and Rules of 2016.
Subject to the above observations, this petition is disposed of.
Order Date :- 21.1.2021 Ashok Kr.