Allahabad High Court
Jahar Singh vs State Of U.P. And 9 Others on 31 January, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 28 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 32892 of 2016 Petitioner :- Jahar Singh Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Yatindra Singh Counsel for Respondent :- C.S.C.,Anand Yadav Hon'ble Surya Prakash Kesarwani,J.
Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents.
No one appears on behalf of the respondent no.10 even in the revised call.
The petitioner claims to be a social worker and the resident of Village Madawara, Tehsil Meharauni, District Lalitpur. His grievance is that Khasra Plot No.1546 Kha measuring 0.1020 hectare land recorded in the revenue records as Banzar, has been encroached by respondent no.4 to 9 and despite matter having been brought to the notice of the Tehsil Authority, no action has been taken.
From perusal of the records, it appears that the respondent no.10, Gaon Sabha instead of invoking the provisions of Section 122B of the erstwhile U.P.Z.A. & L.R. Act or the provision of Section 67 of the U.P. Revenue Code, 2006 (hereinafter referred to as 'the Code'); has filed an injunction suit being Case No.176 of 2014 (Gram Panchayat Madavara and others Vs. Hariram and others) on 08.12.2014, in which an interim order dated 11.02.2014 directing for status qua, has been passed by the Court of Civil Judge (Junior Division), Meharauni, Lalitpur.
The provisions of Section 67 of the U.P. Revenue Code cast a statutory duty upon the Assistant Collector to prevent damage, misappropriation and wrongful occupation of gram panchayat property, as under:-
"67. Power to prevent damages, misappropriation and wrongful occupation of Gram Sabha properties.- (1) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Sabha or other local authority is damaged or misappropriated, or where any Gram Sabha 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 Sub-Divisional Officer concerned in the manner prescribed.
(2) Where from the information received under sub-section (1) or otherwise, the Sub-Divisional Officer 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, 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 as the Sub-Divisional Officer may allow in this behalf, or if the cause shown is found to be insufficient, the Sub- Divisional Officer 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 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 Sub-Divisional Officer 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 Sub-Divisional Officer 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 Sub-Divisional Officer 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.
Explanation.- for the purposes of this section, the word ''land' shall include the trees and buildings standing thereon."
Rule 67 of the U.P. Revenue Code, 2016 provides the procedure for taking action 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."
In view of the aforenoted provisions, the jurisdiction to prevent damage, misappropriation and wrongful occupation of gram panchayat property vests in the authority described under Section 67 of the Code. Consequently, the appropriate remedy available to the Gram Sabha was to invoke the provisions of Section 67 of the Code or the erstwhile provisions of Section 122B of the U.P.Z.A. & L.R. Act.
It is also the statutory duty of the authority under the Code to take action on receipt of information that any property entrusted or deemed to be entrusted under the Provisions of the 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 the Code and such land is occupied otherwise than in accordance with the said provisions statutory duty has been cast upon Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, to inform the Assistant Collector concerned in the manner prescribed.
On the receipt of information under sub-section(1) or otherwise, and on being 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, the Assistant Collector shall issue note 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 and why he should not be evicted from such land. 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 misappropriation or for wrongful occupation as the case may be, be recovered from such person as arrears of land revenue. Sub-section 5 of the Section 67 of the Code provides a remedy to any person who is aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may be within thirty days from the date of such order, prefer an appeal to the Collector. Thus, a complete machinery for eviction and to prevent damage, misappropriation and wrongful occupation of gram panchayat property has been provided under Section 67 of the Code read with Rule 67 of the Rules, 2016.
Section 206 of the Code provides that notwithstanding anything contained in any law for the time in force, but subject to the provisions of the Code, no Civil Court shall entertain any suit, application or proceeding to obtain a decision or order on any matter which the State Government, the Board, any Revenue Court or Revenue Officer is , by or under this Code, empowered to determine, decide or dispose of. Clause (a) of the sub-section 2 of Section 206 of the Code further provides that without prejudice to the generality of the provisions of sub-section (10) and save as otherwise expressly provided by or under this Code, no Civil Court shall exercise jurisdiction over any of the matter specified in the second Schedule. Clause (b) of sub-section 2 of the Code further provides that no Court other than the revenue Court or the revenue officer specified in the column 3 of the third schedule shall entertain any suit, application or proceeding specified in column 3 thereof. Section 67 of the Code mentions in the third schedule the competent authority specified as Assistant Collector against whose order the first appeal would lie to the Collector.
In view of the clear provisions as aforenoted, the Assistant Collector concerned has exclusive jurisdiction to exercise power to prevent damage, misappropriation and wrongful occupation of gram panchayat property. Under the circumstances and the legal position as noted above, the petitioner may approach the Assistant Collector concerned for redressal of his grievances who shall, after due inquiry, proceed as per provisions of Section 67 of the Code read with Rule 67 of the Rules, 2016. It is made clear that if, any such proceedings are initiated, the affected parties shall be afforded reasonable opportunity of hearing by the Assistant Collector concerned, before passing final order.
In view of the aforesaid, this writ petition is disposed of giving liberty to the petitioner to move an application before the Assistant Collector concerned within three weeks alongwith a certified copy of this order, who shall inquire into the matter and obtain necessary information and on receipt of the information, if he is satisfied that the property in question has been damaged or illegally occupied by any person in contravention of the provisions of the Code, then he shall proceed in accordance with provisions of Section 67 of the Code read with Rule 67 of the Rules, 2016 and pass appropriate order in accordance with law, expeditiously, preferably within six months, after affording reasonable opportunity of hearing to all the affected parties.
Order Date :- 31.1.2017 V Kumar