Allahabad High Court
Ghanshyam Verma & Ors. vs State Of U.P. Thru Secretary Revenue ... on 30 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1611
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 21 A.F.R. Case :- MISC. SINGLE No. - 13312 of 2021 Petitioner :- Ghanshyam Verma & Ors. Respondent :- State Of U.P. Thru Secretary Revenue Deptt. & Ors. Counsel for Petitioner :- Subodh Kumar Verma Counsel for Respondent :- C.S.C.,Mohan Singh Hon'ble Ravi Nath Tilhari,J.
1. Heard Shri Subodh Kumar Verma, the learned counsel for the petitioners, Dr. Krishna Singh, the learned Standing Counsel for the opposite party Nos. 1, 2 and 3 and Shri Mohan Singh, the learned counsel appearing for the opposite party No. 4-Gaon Sabha/ Gram Panchayat, Dadwa, Imliya Yarki, Akbarpur, District Ambedkar Nagar, through video conferencing.
2. For the order proposed to be passed, issuance of notice to the private opposite party No. 5 is hereby dispensed with, but his interest would be secured.
3. This writ petition has been filed challenging the order dated 04.11.2019 passed by the Assistant Collector-First Class/ Tehsildar, Akbarpur, Ambedkar Nagar, by which the notice/ R.C. Form-20, issued to the opposite party No. 5 in the proceedings under Section 67 of the U.P. Revenue Code, 2006, has been withdrawn. Against the said order the petitioners filed an appeal which has also been dismissed by the District Magistrate/Collector, Ambedkar Nagar by the order dated 27.01.2021 as not maintainable, which is also under challenge.
4. The dispute pertains to an area of 04 Biswa/ 0.051 hectare of Gata No. 2123, situated at Village Yarki Dadwa, Post Yarki, Pargana/ Tehsil Akbarpur, District Ambedkar Nagar, said to be the Gaon Sabha land recorded as Naveen Parti, and allegedly occupied illegally by the opposite party No. 5.
5. Some of the petitioners, previously, filed Petition No. 35328 (MS) of 2018, Shakuntala Verma & Others Vs. State of U.P. and others, for a direction in the nature of mandamus commanding the opposite parties No. 1 to 5 therein to get the land in dispute vacated from illegal occupation of the private opposite parties. In the said petition the learned Standing Counsel informed the Court that the appropriate proceedings under Section 67(1) of U.P. Revenue Code had been initiated against the encroachers and consequently the petition was disposed of with the observations and directions that the proceedings so initiated for removal of illegal encroachment shall be finalized in accordance with law giving opportunity of hearing to the parties concerned by the competent authority, expeditiously, keeping in mind the statutory period prescribed for disposal of such cases under the U.P. Revenue Code. Thereafter, by the order dated 04.11.2019 the notice issued to the opposite party No. 5 was withdrawn by the Assistant Collector/ Tehsildar, Akbarpur, District Ambedkar Nagar, against which the petitioners filed an appeal, which has been dismissed by the order dated 27.01.2021.
6. Learned counsel for the petitioners submits that the petitioners' appeal has been dismissed only on the ground that the appeal at the instance of the petitioners was not maintainable, as the petitioners were not the party in the proceedings before the Tehsildar/ Assistant Collector First Class. His submission is that the land in dispute is Gaon Sabha land and the petitioners being resident of the same Gaon Sabha have interest in the land of Gaon Sabha. In case of encroachment over Gaon Sabha land the petitioners being aggrieved from the order of the Tehsildar, have a right to maintain the appeal, particularly when Section 67(5) of the Revenue Code, 2006 provides for the appeal by the persons aggrieved from the order passed by the Tehsildar. The order withdrawing the notice issued to the opposite party No. 5, who has encroached upon the Gaon Sabha land causes injury to the petitioners who are the persons aggrieved.
7. Learned counsel for the petitioners submits that the appellate authority in rejecting the petitioners' appeal, as not maintainable, has placed reliance on para-12 of the Appendix-II of the U.P. Revenue Code Rules, 2016, and has also placed reliance on the judgment of this Court in the case of Gram Sabha Gooma Fatima Jot Vs. Deputy Director of Consolidation Balrampur and others, reported in 2020 (146) R.D. 512 (H.C.), but those provisions as also the case law are not applicable.
8. Learned counsel for the petitioners has submitted that Naveen Parti land is for the benefit of the members of the Gaon Sabha. Initially when the proceedings against the encroachers were not being initiated by the Gaon Sabha, the petitioners had approached this Court and it was only thereafter, the proceedings were initiated under Section 67(2) of the U.P. Revenue Code, but after the order has been passed against the Gaon Sabha, the Gaon Sabha has not come forward to file the appeal, inspite of petitioners' request to file appeal, whereas, it is the statutory duty of the Gaon Sabha through its Land Management Committee to ensure safety and security of the Gaon Sabha property.
9. Shri Mohan Singh, the learned counsel appearing for the opposite party No. 4-Gaon Sabha, has fairly submitted that Section 67(5) provides for appeal which can be filed by any 'person aggrieved' by the order of Tehsildar. The petitioners, if aggrieved, could maintain the appeal. He has placed reliance on the judgments in the cases of Om Prakash Verma Vs. State of U.P., 2014(5) ADJ 427, and Dharmraj Vs. State of U.P. and others, reported in 2009 (27) L.C.D. 1373.
10. Dr. Krishna Singh, has also submitted that from bare reading of Section 67(5) of the U.P. Revenue Code, 2006 it is evident that any person aggrieved has a right to prefer an appeal.
11. I have considered the submissions advanced and also perused the material on record.
12. The short point for consideration is whether an appeal filed against the order of Tehsildar/ Assistant Collector, under Section 67(4) of the U.P. Revenue Code, 2006, is maintainable at the instance of a person if he is not a party in the proceedings, but is aggrieved.
13. Section 67 of the U.P. Revenue Code, 2006 provides as under:
"67. Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property.- (1) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Panchayat or other local authority is damaged or misappropriated, or where any Gram Panchayat or other authority is entitled to take possession of any land under the provisions of this Code and such land is occupied otherwise than in accordance with the said provisions, the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, 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 Code, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him annd 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 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 shall be evicted from the land, and 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 or 34 misappropriation of the property or for wrongful occupation, as the case may be, be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of 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.
(5) Any person aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may within thirty days from the date of such order, prefer an appeal to the Collector.
(6) Notwithstanding anything contained in any other provision of this Code, and subject to the provisions of this section every order of the Assistant Collector under this section shall, subject to the provisions of sub-section (5) be final.
(7) The procedure to be followed in any action taken under this section shall be such as may be prescribed."
14. It is evident from sub-section (5) of Section 67 of the Code, 2006 that if any person is aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), he may within thirty days from the date of the order, prefer an appeal before the Collector. This uses the expression, 'any person aggrieved', and not 'any party aggrieved'. A bare reading of sub-section (5) shows that any 'person' may be the 'party' or may not be a party can maintain an appeal if he is aggrieved from the order of the Assistant Collector under sub section (3) or sub section (4). Sub section (5), therefore, is not confined to party aggrieved from the order passed under sub-section (3) or sub-section (4) of Section 67, but also includes a non-party to the proceedings if he can show that he is a 'person aggrieved' from the order passed under sub section (3) or sub section (4).
15. The Court, therefore, proceeds to address as to who is a 'person aggrieved' and whether the petitioners in the present case would be the 'person aggrieved' so as to maintain the appeal against the order passed by the Assistant Collector discharging the notice under sub section (4).
16. In the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and others, AIR 1976 SC 578 the Hon'ble Apex Court held that a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. The relevant paragraph Nos. 27, 29, and 33 of the said report are being reproduced as under:
"27. In Bar Council of Maharashtra v. M.V. Dabholkar [1975] 2 SCC 703=(AIR 1975 SC 2092) a Bench of seven learned Judges of this Court considered the Question whether the Bar Council of a State was a 'person aggrieved' to maintain an appeal under Section of the Advocates' Act, 1961. Answering the question in the affirmative , this Court, speaking through Ray C.J. indicated how the expression "person aggrieved" is to be interpreted in the context of a statute, thus:
The meaning of the words "a person, aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates' Act is comparable to the role of a guardian in professional ethics. The words "person aggrieved" in Sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests.
29. Typical of the cases in which a strict construction was put on the expression "person aggrieved", is Buxton v. Minister of Housing and Local Govt. . There, an appeal by a Company against the refusal of the Local Planning Authority of permission to develop land owned by the Company by digging chalk, was allowed by the Minister. Owners of adjacent property applied to the High Court under Section 31(1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land and that they were 'persons aggrieved' by the action of the Minister. It was held that the expression 'person aggrieved' in a statute meant a person who had suffered a legal grievance; anyone given the right under Section 37 of the Act of 1959 to have his representation considered by the Minister was a person aggrieved, thus Section applied, If those rights were infringed; but the applicants had no right under the statute and no legal rights had been infringed and therefore they were not entitled to challenge the Minister's decision, Salmon J. quoted with approval these observations of James LJ in Re Sidebothem.
"The words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something."
33. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 an applicant should ordinarily be one who has & personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter-(See State of Orissa v. Madan Gopal, 1952 SCR28= (AIR 1952 SC 12); Calcutta Gas Co. v. State of West Bengal, 1962 Supp 1 SCR 1= (AIR 1962 SC 1044); Ram Umeshwari Suthoo v. Member, Board of Revenue Orissa (1967) 1 SCA 413; Gadda Venkateshwara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; State of Orissa Vs. Rajasaheb Chandanmall, AIR 1972 SC 2112; Dr. Satyanarayana Sinha v. S. Lal & Co. AIR 1973 SC 2720."
17. In the case of Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and others reported in (2013) 4 SCC 465 the Hon'ble Apex Court held as under in Paragraph Nos. 9 to 12 which are being reproduced as follows:
"9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of the aggrieved persons.
Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking a writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide:State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P. AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd Vs. State of west Bengal & others, AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Others, (2009) 2 SCC 784).
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Others v. Union of India & Others, AIR 1977 SC 1361.
11. In Anand Sharadchandra Oka Vs. University of Mumbai, AIR 2008 SC 1289, a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.
12. In A. Subhash Babu v. State of A.P., AIR 2011 SC 3031, this Court held:
"The expression ''aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."
18. In the case of Delhi Development Authority, (2015) 14 SCC 254 the Hon'ble Apex Court held as under in Paragraph No. 19 which is being reproduced as follows:
"19. In Director of Settlements, Andhra Pradesh and Ors. vs. M.R. Apparao and Anr., (2002) 4 SCC 638, while considering the scope of the power of High Court to issue a writ of mandamus under Article 226 of the Constitution, this Court has held as under:
"17. ....It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression "for any other purpose". The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain self-imposed limitations. The expression "for any other purpose" in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed..."
19. In the case of Dharmraj (supra) relied upon by Shri Mohan Singh, learned counsel for the Gaon Sabha, also, the Division Bench of this Court has held that the 'person aggrieved' means a person who is wrongly deprived of his entitlement which he is legally entitled to receive. The 'person aggrieved' is a person who is injured or is adversely affected in a legal sense.
20. In the present case the proceedings were drawn against the opposite party No. 5 with respect to 'Naveen Parti' land which is vested in Gaon Sabha, however, the notice was withdrawn on the ground that the opposite party No. 5 did not encroach over the land. Every member of Gram Panchayat has a right of user over Gaon Sabha land subject to the provisions of law in this regard, which is for the benefit of its members. It is also the duty of every member not only not to encroach but also to see that it is not encroached upon by others to protect the interest of the Gaon Sabha. The petitioners being members of the Gaon Sabha and the land being 'Naveen Parti' vested in Gaon Sabha, which they allege to have been encroached upon would be 'person aggrieved' from the order of the Assistant Collector by which the notice issued to the alleged encroacher has been withdrawn as by encroachment of Gaon Sabha land the benefits which the members of the Gaon Sabha may be legally entitled to receive, would be deprived of that entitlement.
21. In Peer Mohammad Vs. State of U.P. and others (Writ Petition No. 13397 (MB) of 2020, decided on 28.08.2020), the order passed under Section 67 of U.P. Revenue Code, 2006 was held to be appealable under sub-section (5) and in view thereof, the petition filed by the person aggrieved from the order of Assistant Collector was dismissed as not maintainable, on the ground of availability of statutory alternative remedy.
22. Thus, this Court is of the considered view that the appeal filed by the petitioners was maintainable and has illegally been dismissed as not maintainable on the ground that the petitioners were not party in the proceedings.
23. In the case of Gram Sabha Komna Balrampur Vs. Deputy Director of Consolidation Balrampur, 2020 R.D. 512, it was held that as the writ petition was filed by the Gram Pradhan without there being any resolution of the Land Management Committee or the Gaon Sabha, the same was not maintainable. This Court referred to para-12of Appendix-II of U.P. Revenue Code Rules, 2016, which is reproduced as under:
"12. Institution of suits with consultation of Panel Lawyer- (1) Gram Panchayat or Gram Sabha will either be a plaintiff instituting or filing a suit, or a defendant contesting such a suit. The Chairman of the Land Management Committee shall not be entitled to take any action in any suit or proceedings unless he consults the Panel Lawyer and obtains order of the Sub-Divisional Officer or the Collector.
(2) Before instituting a suit or proceeding, the Chairman of the Land Management Committee should report full facts to the tahsildar along with a copy of the resolution of the Land Management Committee for filing the suit or proceeding. The tahsildar shall, after making such enquiry as may be necessary, and after consulting the tahsil Panel Lawyer, submit his report to the Sub-Divisional Officer along with written opinion of the tahsil Panel Lawyer. If the suit or proceeding is to be instituted in a court at tahsil headquarters, the SubDivisional Officer shall take a decision. If the suit or proceeding is to be instituted in a court at the district headquarters, the Sub-Divisional Officer shall submit all the papers to the Collector for orders. The Collector shall then decide whether a suit or proceeding is to be instituted or not. He may, in this connection, consult the headqquarters Panel Lawyer or the District Government Counsel, if he considers necessary.
(3) Where the land of Gram Panchayat has been allotted to the persons under the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 or U.P. Revenue Code, 2006 and any suit is instituted or any proceeding is initiated by the influential persons against such allotment the pairvi on behalf of the Gram Panchayat shall be done in such suits or proceedings in as much as the interest of the Gram Panchayat and the State Government is vested in such land."
24. Appendix-II relates to instructions for the conduct of Gram Panchayat litigation. The procedure for litigation which is to be adopted by the Gaon Sabha. It is evident from para-12(1) and (2) that such instructions are for the Chairman of the Land Management Committee where a suit or other proceeding is instituted by or against the Gram Panchat or Gaon Sabha. This Court is of the view that the Appendix-II para-12 is not attracted as in the present case, the appeal was not filed by the Gaon Sabha or the Gram Pradhan. The case of Gram Sabha Gooma Fatima Jot (supra) is, therefore, not attracted to the present case.
25. The judgment in the case of Om Prakash Verma (supra) cited by Shri Mohan Singh is not on the point as to whether remedy of appeal is or is not available to a person aggrieved under Section 67(5) against the orders passed under sub section (3) and (4) of Section 67 of the Revenue Code, 2006, if such person is not party.
26. In view of the above, the petition succeeds and is partly allowed. The impugned order dated 27.01.2021 is hereby quashed. The matter is remanded to the opposite party No. 2, District Magistrate/ Collector, District Ambedkar Nagar, for deciding the petitioners' appeal afresh in accordance with law after affording opportunity of hearing to the parties concerned. The opposite party No. 2 shall issue notice to the opposite party No. 5(respondent No. 1 in appeal) to afford him opportunity of hearing. The appeal shall be decided expeditiously, say within a period of four months from the date of production of the copy of this order before the appellate authority. If the appeal is beyond limitation the matter of condonation of delay shall be considered first.
27. It is clarified that this Court has not entered into the merits of the controversy either way. If any observation is made on the merits the same is only to determine the maintainability of appeal under Section 67(5) and shall have no effect on the merits of the appeal.
(Ravi Nath Tilhari, J.) Order Date :- 30.6.2021 Mustaqeem