Allahabad High Court
Rishipal Singh vs State Of U.P. And 3 Others on 2 December, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 05.09.2022 Delivered on 2.12.2022 Court No. - 18 AFR Case :- WRIT - C No. - 6658 of 2022 Petitioner :- Rishipal Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailendra Singh Counsel for Respondent :- C.S.C.,Arun Kumar Pandey Connected with Case :- WRIT - C No. - 17554 of 2021 Petitioner :- Narayan Singh Respondent :- State Of U P And Others Counsel for Petitioner :- Sheikh Moazzam Inam,Gyanendra Kumar Saini,Suresh Chandra Dwivedi Counsel for Respondent :- Arun Kumar Pandey And Case :- WRIT - C No. - 5044 of 2022 Petitioner :- Jay Prakash Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailendra Yadav Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi And Case :- WRIT - C No. - 8497 of 2022 Petitioner :- Shyam Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Kumar Tyagi Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 8522 of 2022 Petitioner :- Ram Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Kumar Tyagi Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 9097 of 2022 Petitioner :- Ram Awtar And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pramod Kumar Pandey Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi And Case :- WRIT - C No. - 11414 of 2022 Petitioner :- Rakesh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Pratap Yadav,Vinod Kumar Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey And Case :- WRIT - C No. - 11486 of 2022 Petitioner :- Bathuva Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pravesh Kumar,Naveen Kumar Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 11527 of 2022 Petitioner :- Dalip Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pravesh Kumar,Naveen Kumar Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 11545 of 2022 Petitioner :- Indra Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pravesh Kumar,Naveen Kumar Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 11563 of 2022 Petitioner :- Dharm Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Naveen Kumar,Pravesh Kumar Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 12971 of 2022 Petitioner :- Hafiz Mohd Shaban Raza Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Pratap Yadav,Krishna Kant Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Pandey And Case :- WRIT - C No. - 13921 of 2022 Petitioner :- Maan Singh Respondent :- State Of Up Through Principal Secretary Home Gov. Of U.P. And 3 Others Counsel for Petitioner :- Dwijendra Prasad Counsel for Respondent :- C.S.C.,Anil Kumar Singh,Avinash Chandra Srivastava And Case :- WRIT - C No. - 15412 of 2022 Petitioner :- Ekabal Ansari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satya Priya Mishra,M J Akhtar Counsel for Respondent :- C.S.C.,Sudhir Bharti And Case :- WRIT - C No. - 15462 of 2022 Petitioner :- Yashpal Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Harish Chandra Mishra Counsel for Respondent :- C.S.C.,Deepak Gaur And Case :- WRIT - C No. - 18253 of 2022 Petitioner :- Sardar Singh Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Vidya Kant Tripathi Counsel for Respondent :- C.S.C.,Pradeep Singh And Case :- WRIT - C No. - 18868 of 2022 Petitioner :- Jaiveer Singh And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Harishchandra Dubey,Vinod Kumar Upadhyay Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani,Sanjay Kumar Pundir And Case :- WRIT - C No. - 20196 of 2022 Petitioner :- Mahendra Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Akhilesh Kumar Singh,Gyanendra Kumar Mishra Counsel for Respondent :- C.S.C.,Rameshwar Prasad Shukla,Sher Bahadur Singh And Case :- WRIT - C No. - 20414 of 2022 Petitioner :- Rewati Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kharag Singh Counsel for Respondent :- C.S.C.,Sunil Kumar Singh And Case :- WRIT - C No. - 21684 of 2022 Petitioner :- Chandra Prakash Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kailash Nath Singh Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi And Case :- WRIT - C No. - 22161 of 2022 Petitioner :- Hakim Singh Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Abhay Raj Yadav Counsel for Respondent :- C.S.C.,Hari Narayan Singh And Case :- WRIT - C No. - 22164 of 2022 Petitioner :- Ashok Kumar Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Abhay Raj Yadav Counsel for Respondent :- C.S.C.,Hari Narayan Singh And Case :- WRIT - C No. - 22241 of 2022 Petitioner :- Jagmohan Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Abhay Raj Yadav Counsel for Respondent :- C.S.C.,Hari Narayan Singh And Case :- WRIT - C No. - 23078 of 2022 Petitioner :- Gaya Prasad Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Surya Prakash Pandey,Ajay Tripathi Counsel for Respondent :- C.S.C.,Achal Singh Hon'ble Ajit Kumar,J.
Heard Sri Shailendra Singh, Ajay Tripathi, Surya Prakash Pandey, M.J.Akhtar, Rajesh Kumar, Dhirendra Prasad, Santosh Kumar Srivastava, Rahul Kumar Tyagi, Harish Chandra Dubey, Sheikh Moazzam Inam, Adarsh Tripathi, Sri S.K.Chaubey, Sri V.K.Upadhyay, Sri K.N.Singh, Kharag Singh, Abhay Raj Yadav, Vidya Kant Tripathi, Dwijendra Prasad, Pravesh Kumar, Shailendra Yadav, Rahul Kumar Tyagi, Pramod Kumar Pandey, Birendra Pratap Yadav, Vinod Kumar Yadav, Naveen Kumar, K.K.Yadav and H.C.Yadav, learned Advocates appearing for the respective petitioners and Sri Sudhir Bharti, Sunil Kumar Singh, Pankaj Kumar Gupta, Achal Singh, Deepak Gaur, Pradeep Singh, Sher Bahadur Singh, Bhupendra Kumar Tripathi, Hari Narayan Singh, learned counsel for their respective Gaon/ Gram Sabhas and Sri Abhishek Shukla, learned Additional Chief Standing Counsel, assisted by Sri R.S.Umrao, learned Standing Counsel, Sri Rahul Malviya, Sri Anand Bhaskar Srivastava, Sri Ashok Kumar Khushwaha, Sri S.K.Pandey, P.K.Kaushik, Sri Amit Singh, Sri Dhananjay Singh, Sri Chandrasekhar Vaisya, Sri Amit Dubey, Sri Rakesh Kumar, learned Standing Counsel appearing for the State respondents.
1. All these petitions connected together raise common question of law and hence have been heard together and are being decided by this common judgment.
2. The common question of law that arises for consideration relates to the procedure to be adopted by the revenue authorities in exercise of their power under Section 67 of the U.P. Revenue Code, 2006 (hereinafter referred to as "Revenue Code") and Section 26 thereof.
3. The grievances raised by petitioners in their respective writ petitions more or less relate to the manner and method in which spot inspection is conducted, report prepared and at times without giving opportunity to the aggrieved party to contest the report, the orders are passed. There are cases where straight away, the Assistant Collector 1st Class/ Tehsildar concerned has proceeded to pass final order under Section 67 of the Revenue Code.
4. Yet another legal point that has been argued by learned counsel appearing for the respective parties, is relating to settlement of old construction sites with occupier of the building under Section 67-A of the Revenue Code. Fact position in cases though may very but the challenge to orders impugned raise common legal issues as have been referred to hereinabove.
5. I am taking writ petition no. 6658 of 2022 to be the leading writ petition. The original records of the proceedings instituted under Section 67 of the Revenue Code against the petitioner in the leading petition have also been placed before the Court by learned Additional Chief Standing Counsel, in order to appreciate the procedure adopted in the instant case.
6. Briefly stated facts of the case are that a case under Section 67 of the U.P. Revenue Code has been instituted against the petitioner on the basis of some report submitted by the local area Lekhpal on RC form-19, in which petitioner has been held to be illegally occupying 21 square meters of land of plot no. 285, a miljumla number, situated in Village Ladawali, Tehsil Kanth, District Moradabad, by building a house upon the same whereas the land belonged to Gaon Sabha and so a public land. The petitioner in response to the notice, issued on RC Form 20, submitted his objection on 25th July, 2018 disputing the claim of the Gram Panchayat qua the land in question and the plea taken was that the land stood settled with petitioner some 60 years ago. The houses of the petitioner and his brothers Balram Singh and Latoor Singh were built upon the land some 60 years ago falling in plot no. 285, in Khata No. 411 of the concerned revenue village. The petitioner also claimed to have converted the old mud house into a linter based cemented house and he even had instituted a suit in civil court seeking permanent prohibitory injunction being O.S. No. 462 of 2018, which was pending.
7. It transpires from the record that the Lekhapal had submitted some report on the basis of which proceedings were drawn. During pendency of proceeding before the Tehsildar, the local area Lekhpal Yogendra Singh was got examined and cross-examined and Khatauni and village map were also filed. The court on the basis of the report of the Lekhpal, khatuani, photo copy of the village map, returned a finding of fact that land falling in the disputed area was navinparti land, which belonged to Gaon Sabha and upon which illegal possession of the petitioner was found to the extent of 81 square meters. Lekhpal recorded his statement that petitioner was in unauthorized possession and so the Tehsildar believed that statements of the Lekhpal have proved the unauthorized possession of the petitioner. The petitioner's claim of having his house for the last 50-60 years, was repelled on the ground that the petitioner had not been able to lead any evidence to prove in support of the said claim. The Tehsildar further recorded that there was no injunction order passed by the civil court in a pending suit and such suit would be binding only upon the parties to the lis. The Authority concluded that since Lekhpal had proved unauthorized possession of the petitioner upon the land that belonged to Gaon Sabha, the petitioner deserved ejectment forthwith. Thus, the Authority passed a final order under Section 67 of the U.P. Revenue Code directing not only ejectment of the petitioner from the land in question but even imposed damages of Rs. @ 23,065/- per month taking valuation of the property to be Rs. 7,461,700/-. The Assistant Collector 1st Class/Tehsildar further imposed Rs. 4,000/- as a cost for execution of the order.
8. Against the order passed by the Authority under Section 67 of the Revenue Code, petitioner preferred appeal under Section 67(5) of the U.P. Revenue Code, 2006. The appellate authority/Collector/District Magistrate, Moradabad perused the records and concluded finally that there was sufficient evidence available on record to prove that petitioner had raised constructions upon a navinparti land, which resulted in unauthorized possession. The Appellate Authority believed that Naksa Nazri (hand sketched spot map) prepared for the said purpose proved unauthorized possession and thus upheld the order passed by the Assistant Collector 1st Class.
9. The argument advanced by learned counsel for the petitioner and other Advocates who have appeared for respective petitioners are:
a. no proper survey was conducted to demarcate the exact area of the land that belonged to Gaon Sabha as navinparti so as to trace out area of alleged unauthorized possession;
b. Spot survey should have been conducted in presence of the party who was alleged to have encroached upon Gaon Sabha land so as to ascertain unauthorized possession. So there was no transparency in the procedure adopted in preparation of spot report inasmuch as the report even was not technically sound;
c. A mere sketch of map with visual observations would not suffice the need of survey and inspection as contemplated under Rule 67 of the U.P. Revenue Rules,2016 (hereinafter referred to as "Rules, 2016");
d. There was clear violation of principles of natural justice because ex parte reports prepared were never supplied to the petitioners, nor were they given any opportunity to file objection to the respective reports; and e. The Tehsildar failed to discuss the report so as to appreciate the same and alleged corroboration thereof through statement made by the revenue officials inasmuch as reports were not even proved as such.
10. In order to appreciate the contentions, so advanced within the legal framework of the relevant provisions of the Revenue Code and the Rules, 2016 the Court had summoned the original records and now, therefore, it is necessary to go through the records to find out as to whether arguments qua spot inspection and appreciation thereof and violation of principles of natural justice were rightfully made or not.
11. The record of the proceedings conducted under Section 67 of the U.P. Revenue Code, 2006 before Tehsildar, Kanth, shows that initially RC form 19 was issued under the signature of Chairman of the Land Management Committee reporting therein that petitioner had made unauthorized possession upon plot no. 285, a miljumla number, to the extent of 81 square meters and as per circle rate the total value of the property comes to 4,67,700/- and therefore, action be initiated against encroacher of the land. RC form- 19 issued on 11.05.2018 is stated to have accompanied a report of Lekhpal of the same date. The report of the Lekhpal states that upon plot no. 285, an area of 0.069 hectares, out of 811 square meters of land, has been taken in possession by Rishipal Singh (petitioner).
12. Similarly in respect of plot no. 288 with total area 0.109 hectares, Balram Singh was claimed to in unauthorized possession upon 81 square meters of the land. This report shows that there was some dispute between private individuals that led to filing of the first information report on 10.05.2018. The report is accompanied by a village map and the khatauni. The khatauni shows that plot no. 285 and 288 are Navinparti land and recorded in the name of Gaon Sabha.
13. It is on the basis of this above reports that the Tehsildar registered a case on 11.05.2018 itself as case no. 01542 of 2018 issued notices directing for case to be put up on 25.05.2018. Copy of the notice on RC Form 20 dated 11.05.2018 is also available on record and so also objection filed by the petitioner.
14. From the perusal of ordersheet of the Tehsildar relating to case no. 01542 of 2018 shows that matter was adjourned for one reason or the other for a very long time and it continued to be pending evidence of Gram Panchayat until 26.06.2019 when the statement of local area Lekhpal got recorded. Thereafter, further dates were fixed for petitioner's evidence and ultimately on 6.8.2019 the statements of the petitioner and his brothers were recorded. Again dates were fixed thereafter repeatedly. Finally, order was passed on 20.07.2022 directing for payment of damages and ejectment of the petitioner from the land in question.
15. In his statement, the local area of Lekhpal Yogendra Singh before Tehsil recorded on 29.06.2019 stated that the land was recorded as Gram Sabha land and since he found unauthorized possession of Rishipal Singh S/o Umrao Singh because he was raising construction of a pukka house, a cemented linterbase house. It was when he did not remove his construction that police registered a case on 10.05.2018 and then he got the case instituted under Section 67 of the U.P. Revenue Code. He further stated that in the revenue map of the village he had shown with red ink an area of unauthorized possession of the petitioner. He admitted that civil suit for injunction had been filed by the petitioner, which was pending in civil court. On being cross examined by the petitioner's counsel he stated that he had measured the disputed area by visiting the spot and had found the petitioners to be in unauthorized possession to the extent of 81 square meters. He also admitted to have levelled damages as per valuation of the land to the tune of Rs. 4,61,700/- according to circle rate. He further stated that construction appeared to him one year old and denied to have prepared the report on the dictates of Gram Pradan. No statement of Gram Pradhan was recorded even though the land belonged to the Gram Panchayat and further I find from the record that the statement of petitioner Rishipal Singh was recorded on 6.8.2019.
16. In his statement Rishipal, namely the petitioner claimed that the allegation that he was in unauthorized possession of 81 square meters falling in plot no. 285, was absolutely a false statement of fact. He claimed to have ancestral house which was earlier a mud house and later on he made a linter based cemented house and further claimed that it was only because of the complaint of the employees of the Tehsil department that present case had been instituted. The allegation was also made that these employees wanted to have possession of the land from the petitioner. He claimed that his house was 50 year old and there was also abadi of other villagers in the area. During his cross examination, he claimed also that the entire land was full of abadi of the village people and there was no public land as such of the Gaon Sabha to be taken as a vacant Navinparti land. He asserted that and Lekhpal was demanding consideration which he had refused. The original record after these statements, contains the order passed by the authority.
17. From the perusal of the entire record of the case, it clearly transpires that Lekhpal had prepapred ex parte report as a matter of fact because neither report discloses as to who was present on the spot when the report was prepared and as to who carried out measurement. There is no separate map prepared of the land showing unauthorized construction and instead, a photocopy of the revenue village map was annexed alongwith the report with hand written marking of possession upon such revenue map. In his statement also Lekhpal has not disclosed any fact as to when and under what under circumstances and on the basis of which particular complaint, he occasioned an opportunity to conduct survey. He has not disclosed as to whether aggrieved party was served with a notice before any survey was conducted or that he apprised the concerned party that he was in unauthorized possession of the land that necessitated survey suddenly. He only stated that there was some dispute which led to lodging of a first information report. Lekhpal Yogendra Singh could not explain away in his statement as to what was the circle rate and upon which calculation, he has assessed Rs. 4,61,700/- as valuation of the property that led to levelling of the penalty in terms of damages.
18. The question, therefore, in the light of the argument so advanced by learned Advocates appearing for the respective parties that arise for consideration is as to what was the procedure for getting the case registered under Section 67 of the Revenue Code read with Rules framed therein, and as to whether those procedures have been properly followed in the case in hand or not. The sanctity of the report after spot inspection is also an issue.
19. In the above background of facts that emerged upon perusal of the original record, it becomes necessary now to first examine the relevant provisions to test the procedure laid and the one followed in the case.
20. Section 67 of the Revenue Code, 2006 for ready reference and appreciation is reproduced hereunder:
(1) Power to prevent [damage], misappropriation and wrongful occupation of [Gram Panchayat] [Property]- 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 and 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 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 provisions 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."
21. A bare reading of aforesaid provisions as detailed out in various sub sections of Section 67 show that in the first instance the property in issue must be the one entrusted to or deemed to be entrusted to Gram Panchayat or Local Authority; then there should be damage caused to such property; or such property must have been misappropriated; whether Gram Panchayat would have been rightfully in possession of the property under the provisions of this Code but for the land occupied by a person. It is in these above circumstances that either the Land Management Committee or the Authority or the Lekhpal concerned shall have duty to inform the Assistant Collector concerned about the same but in the manner prescribed.
22. Sub Section 2 of Section 67 provides that Assistant Collector must be satisfied regarding such damage, misappropriation or unauthorized occupation of the land by a party in contravention of the provisions of this Code, to issue notice to the person concerned to show cause for the proposed action for such damage or misappropriation and illegal occupation. The power may be exercised suo motu subject to the satisfaction of the authority.
23. Sub Section 3 of 67 provides for reply to be submitted by the concerned person to the show cause notice and in the event reply to the notice is found insufficient , the Assistant Collector shall direct for eviction of such person from the land and further imposition of penalty of damages as compensation to the State for such damage/ misappropriation of the property.
24. Sub section 4 empowers the Assistant Collector to discharge notice if the charge is not established.
25. Sub Section 5 of Section 67 provides for appeal against the order passed by Assistant Collector before the Collector.
26. Subsection 6 of Section 67 makes the order passed by Assistant Collector to be final subject to the order to be passed in appeal.
27. Subsection 7 of Section 67 provides for framing of procedure to be followed.
28. Explanation to Section 67 provides that the land for the purpose of this Section would include trees and building standing thereon.
29. Section 233 of Revenue Code empowers the State Government to make Rules by notification for carrying purpose of the Code. Sub section 2 (xvii) of Section 233 provides for framing of rules qua duties of any officer or the authority having jurisdiction under the Code and the procedure to be followed by him. Exercising such power, the State Government framed U.P Revenue Code Rules, 2016 (Rules, 2016).
30. Rules 66 and 67 of the Rules, 2016 provide detail procedure to be exercised and followed under Section 67 of the Revenue Code, as hereunder:
"66. Information to Assistant Collector (Section 67). The information to Assistant Collector required by section 67(1) shall be submitted by the Chairman or any member or the Secretary of the Land Management Committee, or any officer of the Local Authority concerned in R.C. Form-19.
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. 40 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. 41 (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."
(emphasis added)
31. Rule 66 as quoted above provides for an information to the Assistant Collector either by Chairman or any Member or the Secretary of the Land Management Committee or any officer of the Revenue Authority concerned in RC Form 19. RC Form 19 is a printed format appended to the Rules, 2016 which is to be filled in by Chairman/ Member of the Secretary of the Land Management Committee or any other Member of the Gram Panchayat or any Officer of the Local Authority concerned.
32. What is interesting to note is that Rule provides for an information either by the Chairman or Member or the Secretary of the Land Management Committee or any officer of the Local Authority, so also RC Form 19 provides for a form to be filled in by that very person who informs.
33. The question is whether RC Form 19 can be filled in by local area Lekhpal to institute the proceeding under Section 67 of the U.P. Revenue Code, 2006 shall be dealt with a little later in the judgment. A reading of Subrules of Rule 67 further discloses that besides the information to be furnished under Rule 66, if otherwise it comes to the knowledge of the Assistant Collector that there is misappropriation, damage or unauthorized occupation of the public land or property, the Assistant Collector may make such enquiry as he deems proper and may further ask for report regarding points innumerated in clauses a,b,c, d. So while action is taken suo motu vide Section 67(2), the information that has to be gathered for purposes of RC Form 19, must be to obtained by the Authority before issuing a show cause notice.
34. Subrule (1) of Rule 67 vide its various clauses require certain informations in detail. Clause (a) requires description of damage, misappropriation or wrongful occupation, details of village, plot number, area, boundary of property damaged or misappropriated and market value thereof. Clause- (b) requires in detail address and details of the person who is guilty of wrongful occupation/ damage/misappropriation. Clause- (c) requires information regarding period wrongful occupation/ damage and class of soil of the plot in question and Clause-(d) requires information regarding rate of the property damaged or misappropriated that needed to be calculated at the circle rate fixed by the Collector/ District Magistrate concerned and the amount that is to be recovered.
35. Thus, the above clauses of rule 67(1) provide for the Assistant Collector/Tehsildar to hold a comprehensive detailed enquiry for the purposes of having a prima facie satisfaction to issue show cause to the person concerned in RC Form 20 under subrule (2) of Rule 67.
36. Subrule (3) of Rule, 67 provides for consequential action in the event show cause remained unreplied or reply was found to be unsatisfactorily. Subrule (4) of Rule 67 provides for determination of damage to be recovered and expanses for execution of the order. Subrule 4(a) provides that damage or misappropriation amount shall be assessed at the prevailing market rate. Subrule 4(b) provides that amount of damage shall be an amount equal to five per cent of the market value of the land, calculated at the circle rate fixed by the Collector for each year of the unauthorized occupation and Subrule 4 (c) provides for assessment of expanses on the basis one day's pay and allowances payable to staff deputed. Subrule-(5) provides for retention of possession by unauthorized occupant, if there was some crop standing until it is harvested. However, such unauthorized occupant was required to pay damages at the rate of five per cent of the market value of the land, calculated as per circle rate and in the event amount is not deposited within specified time as per notice on RC Form 20, the possession of the land together with the crop would be taken forcibly and be handed over to the Land Management Committee or the Local Authority as the case may be.
37. Proviso to Subrule (5) further authorizes the authority to take possession back of the vacant land/ any other land and/ or together with the crop if reoccupied after possession of such land was taken under subsection 67 and the rules, forcibly. Subrule (6) of Rule 67 provides that Assistant Collector must endeavour to conclude proceedings within 90 days from the date of issuance of show cause notice. Subrule 7 of Section 67 further provides for role of the Land Management Committee to prosecute such encroachers of the land if second time inspite of earlier being evicted have re-entered the land, by initiating proceedings under Section 447 of the Indian Penal Code, 1860. Subrule (8) of Rule 67 provides for the Collector to maintain a register regarding amount of damages and compensation awarded. Subrrule (9) of 67 provides also for Tehsildar to maintain such register so that from time to time entries made in the register maintained at Tehsil and that at the District Head- quarter may be compared with and matched to ensure accuracy. Subrule (10) of Rule 67 provides for progress report to be sent to Board of Revenue U.P. Lucknow about damages and compensation awarded and realization made thereof under Section 67 of the Revenue Code and the Board has further been fastened with an obligation to send such report to the State Government. Subrule (11) of Rule 67 further provides that inspite of a proceeding is drawn under Section 67 of the U.P. Revenue Code and orders are passed finally, the aggrieved party can claim and get settled his right, title or interest in respect of the property in question in a Court of competent jurisdiction in accordance with law.
38. Thus while various claims of Rule 67(1) provide for a detailed procedure to be followed before issuance of show cause notice under Section 67(2), the other subrules rlate to conduct of proceedings and conclusion thereof within a reasonable time i.e. 90 days. Subrules also confer ample power upon the Authority to dislodge a person forcibly if he dishonours the command and even after being removed, reoccupies the public land.
39. Looking to the object of provision and measures meant to be adopted and safeguards provided by means of strict rule of investigation into the charges first before action, the participation of the person charged cannot be ruled out even at the stage of spot memo being prepared during preliminary investigation.
40. Rule 67 is preceded by Rule 66 that provides for an information to be furnished by certain authorities of the Gram Panchayat or the Local Authority on a printed format prescribed as RC Form 19. The question now is as to RC Form 19 is to be filled in merely sitting in office by looking to the revenue records or has to be preceded by a spot enquiry by such officer. No one would doubt, since land belong to the Gram Panchyat or the Local Authority, it is a primary duty of the Gram Pradhan concerned or the the local authority to ensure that nobody occupies land or property unauthorizedly.
41. Section 67 saves those possessions that are in accordance with provisions of the code and further provides that Lekhpal concerned may inform the Assistant Collector about such damage, misappropriation or unauthorized possession of respective land or property to the Assistant Collector 1st Class in the manner prescribed.
42. RC Form-19 is a part of Rule 66 being appendix to Rules 2016 and though it is a printed format, but it prescribes vide column 5 about damage, misappropriation or unauthorized occupation; vide column 6, the period of unauthorized occupation; vide column 7, it provides for calculation of damages to be made at the circle rate; and then ultimate calculated damages, vide column 8. All this shows that informant has to hold a preliminary enquiry so as to make out a prima facie case for intervention and consequential action by the authority under Section 67 of the U.P. Rule and Revenue Code, 2006 read with Rule 2016. To the question how the informant would form a prima facie view, the answer would be that he would be visiting spot at a date with a prior notice to the person concerned to enquire from him about unauthorized occupancy to ensure such occupation is identifiable and then to assess damage caused or misappropriation of the property in question. It is he who would prepare a visual sketch map/naksa nazri on being satisfied prima faice qua unauthorized occupation/damage/ misappropriation of the Gram Panchayat/ Local Authority property, of course, after comparing with the original revenue records. He would get report of the circle rate then will calculate it accordingly as per his assessment considering extent of damage and misappropriation. Thus, this is how a preliminary report on form RC 19 is to be filled up. All this exercise must be reduced in a form of preliminary report to be appended with RC Form 19 so as to corroborate the entries made on the printed format. This would be necessary to form a view for the Assistant Collector that report submitted as per Rule- 66 prima facie holds merit to issue a show cause notice on RC Form-20 per Rule 1(a)(b)(c)(d) of Rule, 67.
43. The words expression "where from information received under subsection (1) or otherwise, Assistant Collector is satisfied that any property referred to in subsection (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" vide sub section 2 of Section 67 means a satisfaction to be recorded by the Assistant Collector in his order before he issues notice under subrule 2 of Rule 67. Natural corollary would be that subrule 1 of Rule 67 that precedes subrule 2 should be first followed in its letter and spirit. This is the reason why Rule 66 talks of information which I have in forgoing paragraph referred to as preliminary report. So the procedure as may be held to be followed before issuance of notice under sub-rule 2 upon RC form 20, to be that of proper and detailed enquriy .
44. This procedure appears to be sound enough because enquiry report that is an information has to be inconsonance with the enquiry under sub-rule 2 of Rule 67 before issuance of notice, as a condition precedent for issuance of notice. Now in order to assess the damage / misappropriation / wrongful occupation, complained of in the report must be a detailed report regarding boundary of the area of the unauthorized occupation, damage or misappropriation even boundary thereof and thereafter a calculation of compensation for wrongful occupation, damage or misappropriation, the damages and cost.
45. Here, I would hold that this detail enquiry which is meant for under Sub-rule 1 should not be a sheer formality. The Assistant Collector must ensure, therefore, that proper team is constituted to conduct a detailed enquiry on the spot, to test the report submitted, if there be any doubt of its correctness in the mind of the authority and that too in presence of any official of Gram Panchayat and the person who is charged with the offence of damage/ misappropriation /wrongful occupation of the land of the Gram Panchayat / Local Authority. This team that is constituted should be of the revenue officials as may be nominated by the Tehsildar and the member or an official of the Gram Panchayat to be nominated by the Gram Pradhan. Entire area of the Gram Panchayat land, a part of which may be in unauthorized encroachment, should be properly measured and thereafter area of illegal occupancy should be properly measured on a prescribed scale. This is how area of unauthorized occupation should be shown on a map prepared on scale. The area of the land of the Gram Panchayat / Local authority should be measured from a fixed point, the spot memo of inspection should be prepared on the spot itself with signature of the member nominated by Gram Pradhan or any officer of Gram Sabha, the signature of the person who is charged with unauthorized occupation, misappropriation or damages and also signature of members of the technical team which conducted survey on the spot. The manner and method provided for conducting sport survey and preparing spot map should be same as prescribed for under the U.P. Land Revenue (Survey and Record Operation) Rules, 1978. Since it is virtually a demarcation of land, so the procedure of Section 24 and the rule framed for the said purpose must be taken aid of. The State Government, therefore, must ensure that every tehsil in the district is having well equipped team to conduct survey. It should have technical experts in preparing map on the basis of scale to identify exact location of unauthorized possession of a public land, roadside land of chak road and other pathways in village areas or in the areas where local authorities have territorial jurisdiction.
46. The State Government should keep in mind that in village areas, villagers have got settled for a number of years and the aims and objects with which a provision to settle the houses in respect of land belonging to Gaon Sabha or local authority as late as 29th November, 2012 has been incorporated, the proper assessment of the building or structure has to be made. Many people in the village areas are replacing old mud made walls and earthen tiles roof by permanent cemented linter structure and this transformation from old to new, at times becomes matter of complaint of unauthorized possession. If innocent villager is dislodged from the long standing possession only on the ground that he has raised new cemented construction, it would defeat the very purpose and objective behind the incorporation of such a provision under the Act and this in my considered view is not the intendment of the legislature at all.
47. In the event of only misappropriation or damage of the property is complained of for there being wrongful occupation, then a team that is to be constituted must include a technical expert who is able to assess the damage and misappropriation to the public property. Since Rules do not provide for procedure in detail how to conduct the spot inspection, in my view the procedure prescribed for Rule 8, 9 and 10 of Rule 2016 in principle be followed.
48. A combined reading of Rule 66 and Rule 67 and perusal of RC Form 19 it comes out to be very explicit the RC Form 19 report, may be a preliminary report but will of-course be a ground to issue show cause provided it is sufficient enough meeting the parameters of enquiry given in various clauses of Rule 67(1). Legislature did not conceive repetitive reports, nor did it intend RC Form 19 to be waste paper basket material. Thus, in my considered view while RC. Form 19 is being prepared as a preliminary report it should be taken as having the same status as report prepared under Rule 67(1) under the direction of the Authority before issuing show cause on RC Form 20. Accordingly, RC Form 19 report must meet the parameters of various clauses of subrule (1) of Rule 67 and participation of person against whom action is proposed at the time of spot inspection, conduct of survey on the spot and must sign the spot memo. The Authority then will record its prima facie satisfaction to issue show cause and in case of suo motu action, he will direct for such report with spot inspection memo.
49. After receiving report as discussed above, the Assistant Collector, if finds that action is warranted under Section 67, he would issue show cause upon RC Form 20 to the person concerned. After show cause notice is served, if the party aggrieved files his/her objection to the report and show cause notice, Assistant Collector 1st Class should get examined at least two members of the team and out of those two persons the Assistant Collector should ensure as far as possible one should be person nominated by the Pradhan of the Gram Sabha. Still furhter in the event Assistant Collector is of the view that report submitted is defective for certain reasons to be assigned in writing, he should call for a fresh report.
50. After examination and cross -examination of witnesses of the State side and the aggrieved person and his witness, if any, Assistant Collector 1st Class should discuss the report to reach to a conclusion as to whether there has been any damage, misappropriation of the property of the Gram Pradhan/Local Authority or that noticee was in unauthorized occupation of such public property. Similar procedure should be followed in case of any encroachment if made upon a public passage or road by raising construction claiming it to be a bhumidhari land.
51. If the above detailed procedure is followed in the first instance as per sub rule 1 of Rule 67 then there would be a proper satisfaction of the Assistant Collector 1st Class for justification of notice under RC Form 20 and, if thereafter, proper procedure is followed by appreciating report in the light of examination of witnesses and the cross examination and proper appreciation of the evidence that may be led by the respective parties vis-a-vis spot inspection report, the order passed by Assistant Collector 1st Class under sub Rule 6 of Rule 67 read with Section 67, would be an order where one can say that justice not only has been done but has been seen to have been done.
52. Since the issue as involved in Section 67 of the U.P. Revenue Code, 2006 at time relates to road or roadside land that may belong to Gram Panchayat or the local authority, power to take action is prescribed under Section 26 of the Revenue Code, 2006 and it would be expedient at the same time to go through the said provision and appreciate the same.
Section 26 of the Revenue Code, 2006 runs as under:
"26 Removal of obstacle. - If the Tahsildar finds that any obstacle impedes the free use of a public road, path or common land of a village or obstructs the road or water course or source of water, he may direct the removal of such obstacle and may, for that purpose, use or cause to be used such force as may be necessary and may recover the cost of such removal from the person concerned in the manner prescribed."
53. Upon bare reading of the provision, it becomes clear that any obstacle if has been placed upon a public road or public path which impedes free use of public road and equally if free use of common land of a village is obstructed or even in case of water-course, source of water, then Tehsildar is empowerd to direct for removal of such obstacle and may for that purpose use such force as may be necessary. However, recovery of cost and removal of person who has placed obstacle as such upon a public path, public way, public road, public passage or public water-course meant for use for public at large or the water source meant for public purpose, then such action has to be taken in the manner prescribed.
54. Now, it is again necessary to revert to the rules that provide for procedure to be followed for an action under Section 26 of the Revenue Code, 2006. Under the Rules, 2016 the only provision that relates to exercise of power under Section 26 is Rule 23, which is produced hereunder:
"23. Recovery of the cost for removal of obstacle- The cost for removal of obstacles under section 25 or section 26 of the Code may be recovered as arrears of land revenue."
55. A bare reading of the aforesaid rule indicates that State Government only provided for recovery of cost as arrears of land revenue. So now question is how power is to be exercised and whether the procedure prescribed for under Rule 67 would also be a procedure to be followed while exercising power under Section 26 of the U.P. Revenue Code, 2006 in the absence of any specific provision under the Rules.
56. The above discussed rules lead to one important conclusion that Tehsildar is an authority who has to record its satisfaction in the event of a complaint made against private individual for alleged misappropriation, damage or unauthorized occupation of a land or the property that belongs to the Gram Panchayat or a Local Authority. The question, therefore, arises as to how Tehsildar would reach to record its satisfaction and what should be the material substantial enough for the said purpose and then in order to arrive at a conclusion by recording satisfaction what should be the procedure to be followed for getting the necessary information.
57. It is true that revenue authorities are hide bound in law to perform their statutory duty to ensure that common villagers do not face hardships in enjoyment of the public land or public utility land because of the unauthorized encroachment or damage or misappropriation caused by an individual, the authorities are equally hide bound in law to ensure that proper procedure is followed. In such matters one should rule out any possibility of arbitrariness so that action taken passes the test of Article 14 of the Constitution .
58. Applying the above principles in matters of procedure as I have observed hereinabove in this judgment in forgoing paragraphs, to the facts of the present case, I find that not only report of the Lekhpal was ex parte but that was the only report available with Assistant Collector, 1st Class who proceeded to believe the same treating it to be fully proved by the testimony of the Lekhpal concerned. How the Lekhpal conducted survey, how he prepared report and in what manner he reached to a prima facie satisfaction of the alleged encroachment by the petitioner is all not disclosed. A detailed enquiry as referred to in sub-rule 1 of Rule 67, is also missing in the present case and, therefore, the order passed by the Assistant Collector deserves to be set aside. The appellate authority as such is also not justified in affirming the order of the Assistant Collector and so the order passed by the appellate authority also deserve to be set aside.
59. Here at this stage, it would also be necessary to refer to Section 67-A of Revenue Code, and Rule 68 that prescribes procedure for exercise of power under Section 67-A. For ready reference Section 67-A as exists on the statute book is reproduced hereunder:
67-A Certain house sites to be settled with existing owners thereof.- (1) If any person referred to in sub-section (1) of section 64 has built a house on any land referred to in section 63 of this Code, not being land reserved for any public purpose, and such house exits on the November 29, 2012, the site of such house shall be held by the owner of the house on such terms and conditions as may be prescribed.
(2) Where any person referred to in sub-section (1) of section 64, has built a house on any land held by a tenure holder (not being a government lessee) and such house exits on November 29, 2000, the site of such house, notwithstanding anything contained in this Code, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Explanation. - For the purpose of sub-section (2), a house existing on November 29, 2000, on any land held by a tenure holder, shall, unless the 35 contrary is proved, be presumed to have been built by the occupant thereof and where the occupants are members of one family by the head of that family.
Explanation. - For the purpose of sub-section (2), a house existing on November 29, 2000, on any land held by a tenure holder, shall, unless the 35 contrary is proved, be presumed to have been built by the occupant thereof and where the occupants are members of one family by the head of that family.
60. Upon bare reading of subsection- 1 of Section 67-A, it transpires that legislature intended not to disturb old standing residential structures of certain categories of villagers. A person in the category of agricultural labourer or the village artisan who is resident of Gram Panchayat and belongs to SC/ST or OBC or general category living below poverty line or any agricultural labourer, or the village artisan of the Gram Panchayat, are the persons whose built up houses upon the land not in the category of land reserved for public purpose, if have stood on 29th November, 2012, site of such houses are to be settled with such persons of course, subject to conditions prescribed under the Rules. Such sites also even if they belong to individual tenure holder, if one is having settlement in terms of a built house as referred to hereinabove, as on 29th November, 2012, such house would also stand settled with such person. As per explanation appended to the section a presumption is raised in respect of the occupant of such built up house and so the burden would lie upon the revenue authority to prove otherwise.
61. Now it is necessary to refer to the relevant rules prescribed to carry out the purpose of this above provision. Rule 68 of Rules, 2016 reads as under:-
"68. Settlement of house sites with existing owners thereof (1) Where any person referred to in sub-section (1) of section 64 has built a house on any land referred to in section 63 of the Code, not being land reserved for any public purpose and such house exists on twenty-ninth day of November 2012, the site of such house shall be held by the owner of the house on terms and conditions prescribed in rule 64.
Note:- For the removal of doubt it is hereby declared that the maximum area of the site settled under section 67-A (1) of the Code or the rules famed there under shall not exceed two hundred square meters.
(2) Where any person referred to in sub-section (1) of section 64 has built a house on any land held by a tenure holder (not being a government lessee) and such house exists on twenty-ninth day of November 2000, the site of such house shall be deemed to be held by the owner of the house on the following terms and conditions -
(a) the maximum area of the site settled under section 67-A (2) of the Code or the rules framed thereunder shall not exceed two hundred square meters.
(b) the owner of the house as well as his heirs shall have a heritable interest in the site and 42 shall also have unrestricted right to use the trees and wells existing on the site subject to existing rights of easements.
(c) he shall have a right to use the site for construction of a residential house, subject to existing rights of easement.
(d) the owner of the house shall not be liable to pay to the tenure holder or the State Government any future rent in respect of the site.
(e) the succession over the site shall be governed by personal law which the house owner was subject to.
(f) the owner of the house and his heirs shall not be liable to ejectment on any ground whatsoever.
(g) if the building is abandoned or if the owner thereof dies without any heir entitled to succeed, the land or site shall escheat to the State.
(h) the tenure holder shall be allowed remission of the proportionate land revenue for the portion of his holding settled under this rule with house owners. The land shall also be classified as abadi in the Khatauni maintained under the Code"
62. Sub Rule 1 of Rule 68 provides that a built house that is prescribed under Section 64 is referable to the land falling in Section 63 of the Code and not a land reserved for any public purpose and that such house must exist as on 29th day November, 2012. In order to clarify the area of settlement to achieve the purpose enshrined under Section 68-A, a note has further been appended to sub-rule 1 to Rule 68 by way of removal of doubts and so it provides that maximum area of site that will be settled under Section 67 A (1) of the Code, shall not exceed 200 square meters. Certain conditions are further prescribed as condition of settlement of such a site. Under sub rule 2 of Rule 68, in most of the cases, that are before this Court and that are flooding in view of exercise of power under Section 67 of the Revenue Code, I find the unauthorized encroachment is in the form of built up constructions as house either as a case of old built up house with mud or earthen tile material or a case as in the present case, the old mud and earthen tiles replaced by cemented linter based house.
63. In such circumstances, when the code itself provided for protection to old constructions on a public land or public land in respect of certain categories of persons defined under Section 64, it would be not only in the fitness of things but also sound and logical if in the event of objection being raised to the show cause notice issued on RC form 20 scrutiny is simultaneously done by the Assistant Collector as to the availability of protection under Section 67 A to the extent of 200 sq. mts. land/ site. It would not only lead to multiplicity of litigation but also does not appeal to reason that in the event if objection is raised citing old standing construction, merely because specific application is not there seeking protection provided under Section 67-A, the alleged unauthorized occupant is forced to enter into another round of litigation to get the land settled under Section 67-A. When the matter in respect of old constructions or new constructions are being examined and evidence is being appreciated to reach to a conclusion as to whether, the encroachment is unauthorized upon Gram Sabha land by raising constitution of a house, it would be fair enough to hold scrutiny qua right of settlement under Section 67A at the same time in that very pending proceeding itself.
64. What is very important to remember here that notice in RC Form 19 prescribes for a column regarding year of unauthorized occupancy. If the occupancy is in the form of building as preliminary report would itself disclose or if the preliminary report does not disclose leading to further enquiry report under subrule 1 of Rule 67in case of objection by the aggrieved person requesting for a fresh report and that subsequent report if discloses that there is standing construction or there exists house or building, the Authority will have to return a finding as to since when such construction stands. Thus, in the event this point is being deliberated to conclude whether construction is new or old in order to assess the compensation and damages and objection has been taken that construction is old one, the authority should at the same time also frame point as to whether benefit of Section 67-A will be available to the aggrieved party to the extent of 200 square meteres.
65. Here, I would also refer to a fact that Section 67-A came to be inserted vide U.P. Act No. 4 of 2016 w.e.f. 16.12.2015. U.P. Revenue Code, 2006 though was enacted in 2006 but, was enforced only in 2016 by notification issued by the State Government, w.e.f. 16.12.2015. So Section 67-A was deliberately inserted to grant protection to those persons who fall in the categories as defined under Section 64 and who might have built up house on public land. Therefore, in my considered view while examining the matter of complaint under Section 67 of U.P. Revenue Code, 2006, if party has filed objection claiming old standing construction prior to 29th November, 2012 by mentioning number of years only, Assistant Collector must frame a point as to whether benefit under Section 67 A of the U.P. Revenue 2006 can be offered to the aggrieved person or not.
66. Here in my above view, I find support in the observations made by Ajay Bhanot, J in the case of Govind v. State of U.P. and others wherein his Lordship while examining provisions as contained under Section 67 and 67-A vide paragraph 13, 14 and 15, has held thus:.
"13. In many instances, as in the present case, a noticee under Section 67 of the Code may invoke the protection of Section 67(A) of the Code to resist the proceedings under Section 67 of the Code.
14. The authority/ court having jurisdiction to decide the proceedings taken out under Section 67 of the Code or Section 67(A) of the Code is the same. When the defence of Section 67(A) of the Code is taken in proceedings of Section 67 of the Code, the same issues will be directly and substantially in issue in both the proceedings. Usually in such matters pleadings, defence, and evidence of the parties are same in both the proceedings. In case proceedings under Section 67 and 67(A) of the Code are conducted separately and in isolation to one another, it would lead to multiplicity of litigation and inconsistent judgments. There will also be an avoidable delay in decision of the controversy and may even result in miscarriage of justice.
15. The courts in proceedings under Section 67 of the Code are under obligation of law to decide the eligibility of the noticee for protection under Section 67(A) of the Code. In case defence under Section 67(A) of the Code is taken by the noticee, the said proceedings shall be registered separately. But both cases will be consolidated and heard and decided together. "
67. I fully agree with the view taken by his lordship in so far as consideration of protection under Section 67-A of the code is to be there while examining the matter under Section 67 but in my further view, I may hold that since consideration of the authority to consider unauthorized encroachment under Section 67, would be the report obtained under sub-rule 1 of Rule 67, it would equally suffice the need for the purpose of assessment of protection under Section 67-A of the Revenue Code at the same time, in the event unauthorized encroachment is in the form of a building or a house. So, it may not be necessary to register a separate case under Section 67A of the Code. The idea not to register a separate case is aimed at avoiding multiplicity of litigation and saving of time as well as making the proceeding cost effective. If the authority examining a matter under Section 67 also considers the point of protection under Section 67-A, it would be making the provisions more meaningful considering the aims and object behind the statutory protection. However, I may hasten to add that while objection is being filed by a party under notice, taking plea that standing constructions are old to wit, since prior to 2012 and in his objection has taken the plea of protection under Section 67-A such party should also make prayer that 200 sq. mts. of land be settled with him under Section 67 A considering the construction to be older construction to be existing since before the cut off date .
68. There has been much debate during court proceedings about scope of settlement upon a land which is reserved land for public purpose or the land of public utility.
69. Here it is necessary to refer to Section 63 of Revenue Code, 2006 which runs as under:
"63. Land which may be allotted for abadi sites.- (1) The Sub-Divisional Officer may of his own motion or on the resolution of the Bhumi Prabandhak Samiti earmark the following classes of land for the provision of abadi sites for allotment to persons specified in section 64:-
(a) all lands entrusted or deemed to be entrusted to a Gram Panchayat under clause (i) of sub-section (2) of section 59;
(b) all lands coming into possession of Gram Panchayat under any other provisions of this Code.
(2) Notwithstanding anything contained in any other provision of this Code or in the U.P. Panchayat Raj Act, 1947, the Bhumi Prabandhak Samiti may, with the previous approval of the Sub-Divisional Officer, allot the following classes of land for the purposes of building houses:-
(a) any vacant land referred to in sub-section (1);
(b) any land earmarked for abadi sites under the Uttar Pradesh Consolidation of Holdings Act, 1953;
(c) any land acquired under the provisions of Land Acquisition Act, 1894 (Act No.1 of 1894) and The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No.30 of 2013"
70. Subsection 1 Section 63 provides that certain categories of land entrusted to Gram Panchayat under Clause (i) of sub section 2 of Section 59 would be land for the purposes of allotment for abadi sites and also such land which may be coming into possession of the Gram Panchayat under any other provision of the Code. Clause (i) of subsection 2 of Section 59 refers to the lands cultivable or otherwise except the land for time being comprising in any holding or grove. The land mentioned in other clauses have been excluded from the scope of provision of Section 63(1). However, upon reading of subsection 2 of section 63, I find that any vacant land referred to under sub section (1) (b) of Section 63 can also be made subject to allotment with previous approval of the competent authority/ State Government and so it will include all the lands that come into possession of Gram Panchayat.
71. Therefore, in cases where recommendations are made for an approval, it may be an issue how to finalize the proceedings. In my considered view as I find the Gram Sabhas are not able to protect their land so the authority must no make recommendations as a rule. It is only in the rarest of the rare cases that such recommendations should be made. For instance if any recognized school or a registered hospital has come to be made, such a recommendation can be made. I mean to say when large public interest may be involved. The object is to get public land freed from unauthorized encroachment and so there should be no reward like thing to an encroacher. An encroacher must release public land. The public utility land is an exception to the general rule of settlement and must remain exception. The Gram Sabha may be asked to offer an alternative land in order to save such land instead of making recommendations for approval of authorities to seek such land with the encroacher.
72. There is one more issue, which requires to be addressed to, regarding consideration of interim application for stay in appeal. The appeals are creation of statute and, therefore, while entertaining the appeal, the appellate authority must dispose of pending stay applications against the order of Assistant Collector within two weeks or so and until such disposal, therefore, revenue authorities should restrain themselves from taking any coercive measure subject to the appellant depositing some amount of damages, if charged, as may be ordered by the appellate authority or atleast 25% of the damages imposed. Endeavour of the appellate authority should always be to dispose of appeals filed under Section 67(5) quite expeditiously and if there is no other legal impediment, within a maximum period of three months as is prescribed for deciding the case under Section 67, read with sub rule 6 of Rule 67 of the Rules, 2016.
73. Considerations that should weigh for grant of interim relief should be that aggrieved party has no other house and residing therein with family or may be alone and he has been using his dwelling house for a number of years. However, in case of obstacle on public pathway, the consideration should be more with regard to inconvenience of public or villagers. It is always open for the authority to consider interim stay application in appeal on facts of each case.
74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager:
(i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis.
(ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of subrule 1 Rule 67.
(iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted alongwith RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above.
(iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved.
(v) In the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same alongwith the matter under Section 67, without requiring aggrieved party to move separate application under Section 67-A.
(vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him.
(vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner.
(viii) In case of appeal under Section 67(5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed alongwith interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67-A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant.
(ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation.
75. India lives largely in villages and still by and large is an agregarian economy. The State of Uttar Pradesh is no exception. Accordingly, I may observe here that rules of procedure deserve to be suitably amended by the State Government incorporating above guidelines for leaving no scope for any arbitrariness that is seen largely as influencing the decision making process by the authority, may be for local village politics.
76. In view of above all these writ petitions connected together are hereby allowed. The impugned orders passed therein both by the Assistant Collector/Tehsildar concerned and the appellate authority as the case may be, are hereby set aside. Individual cases in petitions are remitted to the Assistant Collector to decide afresh in the light of the observations and guidelines made in this judgment. The liberty also rests with the petitioners to raise plea of 67-A if not taken within three weeks from today, if so advised.
77. Before parting , I must appreciate learned Additional Chief Standing Counsel Mr. Abhishek Shukla and the learned Standing Counsel Sri R.S.Umrao, Sri Rahul Malviya, Sri Anand Bhaskar Srivastava and battery of learned Standing Counsel with them and also learned Advocates appearing for the respective Gaon Sabhas of the State, as well as learned Advocates appearing for the respective petitioners for their valuable assistance in this matter of great public importance.
78. Original records are returned to the Additional Chief Standing Counsel forthwith.
Order Date :-2.12.2022 Sanjeev