Court No. - 1
Case :- WRIT - C No. - 25910 of 2020 Petitioner :- Suveer Sachan @ Samir Sachan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Niranjan,Dharam Pal Singh(Senior Adv.) Counsel for Respondent :- C.S.C.,Azad Rai
Hon'ble Vivek Agarwal,J.
1. Heard Sri Dharm Pal Singh, learned Senior Advocate assisted by Sri Siddharth Niranjan, learned counsel for the petitioner and Sri Mangal Rai, learned counsel for the respondents.
2. This writ petition has been filed challenging the order dated 15.10.2020 passed by the District Magistrate, Kanpur Nagar in Case No. 00438 of 2019 under Section 60 and 67(5) of the U.P. Revenue Code, 2006, whereby the District Magistrate has affirmed the order dated 30.10.2018 passed by the Assistant Collector/Tehsildar, Bhognipur under Section 67 of the U.P. Revenue Code, 2006.
3. Petitioner's case is that there is a dispute in regard to land measuring 0.008 hectares, contained in Arazi No. 95, having total area of 0.053 hectares situated in Mauza-Hasemau, Pargana and Tehsil-Bhognipur, District-Kanpur Dehat. According to the respondents, petitioner encroached upon an area of 0.008 hectares. In the revenue records, Arazi No. 95 has been recorded as "parti kadim", which means very very old.
4. Learned counsel for the petitioner submits that the authorities of the Assistant Collector and the District Magistrate have no jurisdiction to pass order of ejectment and payment of damages in the circumstances of the present case. It is further submitted that authorities of courts below have erred in relying upon the alleged spot inspection report dated 29.10.2018, as it is not admissible in law. It is further submitted that Lekhpal was not examined on behalf of the Gaon Sabha, therefore, in absence of any opportunity offered to the petitioners to cross-examine the Lekhpal, his report could not have been accepted to form basis for impugned orders. It is also submitted that since documents were not proved, therefore, impugned orders are bad in law. Learned Senior Advocate further argues that since land was not reserved by any authority for any public purposes and as such provisions of Sections 67 and 67(A) of the U.P. Revenue Code, 2006 were not admissible under the facts and circumstances of the case.
5. Learned counsel for the petitioner submits that on 26.10.2017, Lekhpal submitted a report under Section 67(1) of the U.P. Revenue Code, 2006 read with Rule 66 of the U.P. Revenue Code Rules, 2016, stating that petitioner has illegally encroached upon an area of 0.008 hectares by constructing a house about 20 years ago. In pursuance of this report, Assistant Collector issued notice on 28.02.2018, asking the petitioner as to why he be not evicted and asked to pay a sum of Rs. 760/- (seven hundred sixty rupees), as damages for illegal possession. Petitioner's contention is that a reply/objection was filed to the said show cause notice on 23.04.2018, claiming that objector's father has constructed a house about 45 years ago and they are staying in the said house, as his father is a marginal farmer and belongs to backward community. Besides this, they belong to category of persons living below poverty line, thus, petitioner is entitled to benefit accruing under the provisions of Section 123 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, so also Section 67(A) of the U.P. Revenue Code, 2006
6. It is submitted on behalf of the respondents that on 29.10.2018, measurements were taken and a panchayatnama was prepared in which it has come on record that the land in question is on Kanpur-Jhansi Highway and the petitioner has encroached on 0.008 hectares of land. Thereafter, Assistant Collector/Tehsildar taking note of the fact that land in question is recorded in revenue records as "parti kadim", passed the impugned order of ejectment and imposing penalty.
7. After hearing learned counsel for the parties and going through the record, it is necessary to place facts in a correct perspective. Petitioner's case is that they are entitled to take advantage of the provisions contained in Section 67-A of the U.P. Revenue Code, 2006, so also of the provisions contained in Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and thus authorities below were in error in passing orders directing ejectment and imposition of penalty.
8. Section 67-A of the U.P. Revenue Code, 2006 provides that if any person referred to in sub-section (1) of Section 64, builds a house on any land referred in Section 63 of the Code, not being land reserved for any public purpose and such house exists on November 29th, 2012, this site of house shall be held by the owner of the house on such terms and conditions, as may be prescribed. Sub-section 2 reads as under:-
"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 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 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."
9. Section 64 provided allotment of abadi sites, it prescribed an order of preferences. In the explanation below, Sub-section (1) and (2) of Section 64 reads as under:-
"Explanation. - For the purposes of this sub-section -
(1) "other backward class" means the backward class of citizens specified scheduled-I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U.P. Act, No. 4 of 1994);
(2) "person of general category living below poverty line" means such persons as may be determined from time to time by the State Government.
(2) In making an allotment under this section, preference shall be given to a person who either holds no house or has insufficient accommodation considering the requirement of his family."
10. Analogous provisions are provided under Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Provisions contained in Section 122(c)(3) is analogous to provisions contained in Section 64 of the U.P. Revenue Code, 2006.
11. Thus, for a person, claiming his rights to have been crystalized under Section 67-A is required to fulfill the requirements provided under Section 64 of the U.P. Revenue Code, 2006 and is required to demonstrate that such person is O.B.C. as specified in Schedule-I of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and if a person is claiming himself to be a person of general category living below poverty line, then he has to prove that he is a person below poverty line, as has been determined from time to time by the State Government. But in the present case, though, the petitioner is claiming himself to be a person belonging to O.B.C. and below poverty line, as is apparent from Annexure-4, in reply to the notice submitted on behalf of the petitioner to the Assistant Collector/Tehsildar, Bhognipur, Janpad Kanpur Dehat, but no documentary evidence has been produced in support of such claim and therefore, the authorities of Assistant Collector and Collector have held that there being an encroachment over part of land contained in Gata No. 95, revealing that while constructing his house, petitioner has encroached on 0.008 hectare of the government land, then this issue of claiming any right under Section 64-A, does not arise.
12. A perusal of the memo of appeal, enclosed along with this writ petition as Annexure-8, as was filed before the Collector, Kanpur Dehat reveals that in fact, none of these grounds as have been taken in this writ petition were raised before the Appellate Court and on this ground also that petitioners have failed to raise these grounds in the appeal, as to violation of provisions contained in Section 67-A of the U.P. Revenue Code, 2006 or Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, is now estopped from raising this ground in a writ petition under Article 227 where this High Court can only exercise its supervisory power and admittedly is not sitting in appeal over the orders of Assistant Collector or the Collector, therefore, on both the grounds of not being able to demonstrate fulfillment of requirement of Section 64 of U.P. Revenue Code, 2006, thus, entitling the petitioner to invoke provisions contained in Section 67-A and also on the ground of not taking these grounds in the memo of appeal, petition fails and is dismissed.
Order Date :- 7.1.2021 Vikram/-Ar