Court No. - 18
Case :- WRIT - C No. - 19766 of 2021 Petitioner :- Anil Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Kishore Pandey,Priyanshu Pandey Counsel for Respondent :- C.S.C.,Hari Narayan Singh
Hon'ble Ajay Bhanot,J.
Heard Sri Ram Kishore Pandey, learned counsel for the petitioner, learned Standing Counsel for the respondents No.1 to 3-State and Sri Hari Narayan Singh, learned counsel for the respondent No.4-Gaon Sabha.
By the impugned order dated 22.01.2021 passed by the respondent No.3-Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil-Narwal, District-Kanpur Nagar rendered in proceedings registered as Suit No.03063 of 2019, Computerized Suit No.T201903410403063 (State of U.P. Vs. Anil) under Section 67 of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as the 'Code'), the petitioner was found to be illegal encroachment over the disputed parcels of land. The learned appellate court/Additional District Magistrate (Judicial), Kanpur Nagar by the impugned order dated 20.07.2021 agreed with the findings of the learned trial court/Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil-Narwal, District-Kanpur Nagar, and affirmed its judgement dated 22.01.2021.
Sri Ram Kishore Pandey, learned counsel for the petitioner contends that the ancestors of the petitioner were allotted a residential patta over the disputed parcels of land. The predecessors in interest of the petitioner had erected a residential house on the disputed parcels of land almost 35 years ago. This fact was confirmed in the report submitted by the Lekhpal which is appended as annexure 4 to the writ petition. The learned courts below erred in law and entered perverse findings by failing to consider the aforesaid defence as well as corroborative evidence in that regard. The petitioner is entitled to the protection of Section 67(A) of the Code.
A perusal of the impugned order dated 22.01.2021 and the order dated 20.07.2021 corroborates the submission of Sri Ram Kishore Pandey, learned counsel for the petitioner.
The aforesaid facts could not be disputed by the learned Standing Counsel for the respondents No.1 to 3-State and Sri Hari Narayan Singh, learned counsel for the respondent No.4-Gaon Sabha The petitioner had clearly invoked the protection of 67(A) of the Code on the footing that his residential house was erected 35 years ago and that a residential patta was granted to his predecessors. The learned courts below neglected to consider the aforesaid facts and defences raised by the petitioner. This reflects non application of mind.
Adverting to the eligibility of the petitioner for protection under Section 67(A) of the Code and the rights purportedly accruing to him thereunder, the appellate court held that it was open to the petitioner to take out proceedings under Section 67(A) of the Code for grant of appropriate relief as claimed by him. After noticing the aforesaid facts, the appellate court agreed with the judgment of the trial court and dismissed the appeal. The trial court did not return any finding on this issue.
Section 67 as well as Section 67(A) of the Code reflect the composite intent of legislature. The legislature by enacting the aforesaid provision has recognized the vulnerability of the State land to illegal encroachment and the need for urgent corrective measures. Simultaneously the legislature has also acknowledged the reality of a large number of persons who have erected dwelling units on lands which are not reserved for any public purposes. The legislature has protected their rights in the manner prescribed in the provision. For ease of reference the provisions are extracted hereunder:
"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 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 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.
Explanation. - For the purposes of this section, the word 'land' shall include the trees and buildings standing thereon 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. "
Section 67(A) of the Code confers rights on certain people who have encroached upon public land. The prerequisite conditions for invoking the protection of Section 67(A) of the Code are these. The person against whom proceedings are taken out has built his house on any land referred to in Section 63 of the Code, the person who seeks protection of Section 67(A) of the Code should be in the category of persons referred to in Section 63 of the Code. The land should not be reserved for any public purpose. The date of the construction of the house should be prior to 29 November, 2012. The house of such persons should be existing in the disputed parcels of land on or before 29 November 2012.
In many instances, as indeed in the present case, the 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.
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.
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.
This procedure would faithfully implement the legislative intent and also serve the interest of justice.
In the facts and circumstances of this case, the failure of the learned courts below to enquire into the validity of the defence of the petitioner under Section 67(A) of the Code has resulted into a miscarriage of justice.
In the wake of preceding discussion, the impugned order dated 22.01.2021 and the order dated 20.07.2021 are vitiated and contrary to law.
The order dated 22.01.2021 passed by the respondent No.3-Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil-Narwal, District-Kanpur Nagar and the order dated 20.07.2021 passed by the learned appellate court/Additional District Magistrate (Judicial), Kanpur Nagar, are liable to be set aside and are set aside.
The matter is thus remitted to the respondent No.3- Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil-Narwal, District-Kanpur Nagar for a fresh determination consistent with the observation made in this judgment.
The following directions are being passed to serve the interest of justice in this case:
(1) The petitioner shall file a fresh application under Section 67(A) of the Code before the respondent No.3- Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil-Narwal, District-Kanpur Nagar within a period of one month from the date of production of a computer generated copy of this order downloaded from the official website of the High Court of Judicature at Allahabad. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(2) The respondent No.3-Tehsildar (Judicial)/Assistant Collector 1st Class, Tehsil-Narwal, District-Kanpur Nagar, shall register the proceedings under Section 67(A) of the Code upon submission of such application.
(3) Proceedings under Section 67(A) of the Code so instituted shall be consolidated and heard with proceedings under Section 67 of the Code registered as Suit No.03063 of 2019, Computerized Suit No.T201903410403063 (State of U.P. Vs. Anil) and decided by a common judgment.
The writ petition is allowed to the extent indicated above.
Order Date :- 13.8.2021 Ashish Tripathi