Rama Shankar vs State Of U.P. Through Its ...
2011 Latest Caselaw 6356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 70199 of 2011
 

 
Petitioner :- Rama Shankar
 

 
Respondent :- State Of U.P. Through its Secretary & Others
 

 
Petitioner Counsel :- R.K. Ojha, Bijendra Kumar Mishra
 

 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Syed Rafat Alam, Chief Justice
 
Hon'ble Ran Vijai Singh, J.

In the instant petition, filed as public interest litigation, the petitioner has invoked the writ jurisdiction of this Court on the allegation that respondent nos. 4 and 5 have encroached upon the Gaon Sabha property and in spite of several efforts made by the petitioner before the administrative authorities including the District Magistrate and the Commissioner of the concerned Division, no steps have been taken to remove the encroachment from the land in dispute. The petitioner, therefore, has made prayer for issuance of a writ of mandamus directing respondent nos. 1 to 4 for removal of the encroachment made over the Gaon Sabha property.

Learned counsel for the petitioner vehemently contended that the respondent authorities, despite various complaints made by the petitioner along with the villagers of the village in question, failed to take any steps for removal of the encroachment made over the public property. He pointed out from the petition that detailed representations/complaints were filed by the petitioner along with villagers before the District Magistrate, Mau and the Commissioner, Azamgarh Division, Azamgarh, copies whereof are enclosed as Annexures - 5 and 6 to the writ petition, yet it yielded no result and, thus, he has filed the present PIL. It is submitted that Plot Nos. 177 and 178 belong to Gaon Sabha of village Nagpur, Pargana and Tehsil Mohammadabad, District Mau and are recorded as 'Bheeta' in the revenue records.

On the other hand, learned Standing Counsel appearing for the State-respondents has submitted that it is the duty of the Land Management Committee constituted under the U.P. Panchayat Raj Act to maintain the Gaon Sabha property and in case there is some encroachment, a complete mechanism under Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act and the Rules framed thereunder has been provided to remove such encroachment over the Gaon Sabha property which also includes imposition of damages etc. In his submissions, the grievance can be raised before the Land Management Committee itself of which Lekhpal of the circle happens to be the Secretary, who is legally responsible for informing such encroachments over the Gaon Sabha property to the Assistant Collector and the petitioner may raise his grievance before the aforesaid Committee/Local Authority itself, instead of rushing to this Court in its extra-ordinary jurisdiction under Article 226 of the Constitution of India.

We have considered the submissions made on both sides.

The U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as 'Act of 1950') is a self-contained Act and it contains a complete mechanism for removal of encroachment over the Gaon Sabha property. It would be useful to reproduce the relevant provisions of the Act of 1950 and the Rules framed thereunder, which prescribe the duties and powers of the Land Management Committee as well as the revenue authorities. Under the provisions contained in Section 122-A of the Act of 1950, the Land Management Committee of the Gaon Sabha is vested with the power of superintendence, management and control of all land recorded as public utility land. It reads as under:-

"122-A Superintendence, management and control of land etc. by the Land Management Committee.-

(1)Subject to the provisions of this Act, the Land Management Committee shall be charged, for and on behalf of the Gaon Sabha with the general superintendence, management, preservation and control of all the land, forests within village boundaries, trees (other than trees in a holding, grove or abadi), fisheries, tanks, ponds, water channels, pathways, abadi sites and hats, bazars and melas vested in the Gaon Sabha under Section 117.

(2)Without prejudice to the generality of the foregoing provisions, the functions and duties of the Land Management Committee shall include-

(a) the setting and management of land;

  		 	 (b) the conduct and prosecution of suits and 				proceedings 	 by or against the Gaon Sabha;
 
		(c) the development and improvement of  agriculture;  
 
             	 	(d) the preservation, maintenance and development 			of forests and trees;
 
 (e) the maintenance and development of abadi sites and village 	communications;
 
         (f) the management of hats, bazars and melas;
 
         (g) the development of co-operative farming;
 
 (h) the development of animal husbandry which includes pisciculture 	and poultry farming;
 
		(i) the consolidation of holdings;
 
		(j) the development of cottage industries;
 
   (k) the maintenance and development of fisheries and tanks; and 
 
         (l) such other matters as may be prescribed.
 

 

(3) Subject to such conditions as may be prescribed, the Chairman or any other office-bearer or member of the Land Management Committee shall, for and on behalf of the Land Management Committee, be entitled to sign any document and to do all other things for the conduct and prosecution of suits and other proceedings.

122-B Powers of the Land Management Committee and the Collector.-

(1)Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, 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 Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land.

(3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding three months from the date of service of such notice on such person, 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 may 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, misappropriation or wrongful occupation 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.

(4-A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order prefer, a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333.

(4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.

(4-C) Notwithstanding anything contained in Section 333 or Section 333-A, but subject to the provisions of this section-

(i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4-A) and (4-D), be final.

(ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-D), be final.

(4-D) any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property.

(4-E) No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A).

Explanation.- for the purposes of this section, the expression 'Collector' means the officer appointed as Collector under the provision of the U.P. Land Revenue Act, 1901 and includes an Additional Collector.

(4-F) Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before June 30, 1985 and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195.

(5)Rules 115-C to 115- H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, 1950 as amended by the Uttar Pradesh Land Laws (Second Amendment) Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provisions of this Act.

U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the 'Rules of 1952') framed under the Act of 1950 also prescribe complete procedure regarding maintenance and management of the land meant for public utility by the Land Management Committee of the Gaon Sabha. In order to appreciate the provision, the relevant Rules are reproduced hereinafter:-

"115-C (1) It shall be the duty of the Land Management Committee to preserve or protect from damage, misappropriation and wrongful occupation, all properties vested in it under Section 117, including vacant land and land over which it is entitled to take possession under the Act and to manage and maintain all such property and land in its possession.

(2) The Chairman or any Member or the Secretary of the Land Management Committee shall report all cases of damage to; or misappropriation or wrongful occupation of, the property referred to in sub-rule (1) to the Collector praying for recovery of compensation for damage to or misappropriation of the property or possession of the land together with damages for wrongful occupation thereof.

(3) it shall be the duty of the Lekhpal to report to the Collector through the Tahsildar all cases of wrongful occupation of damage to and misappropriation of property vested in the Gaon Sabha as soon as they come to his notice and in any case after the conclusion of Kharif and Rabi Partal every year.

(4) The Tahsildar shall satisfy himself in the month of May every year that each Lekhpal has submitted all such reports.

(5) The provisions of sub-rules (1) to (3) shall mutatis mutandis apply to a local authority in respect of the properties vested in it, including vacant land and land over which it is entitled to take possession, under the Act:

Provided that the duty in respect of sub-rule (3) above, shall be discharged by such official of the local authority as may be decided upon by the local authority concerned.

115-D (1) Where the Land Management Committee or the local authority, as the case may be, fails to take action in accordance with Section 122-B, the Collector shall-

(a) on an application of the Chairman; Member or Secretary of the Committee; or

(b) on a report made by the Lekhpal under sub-rule (3) of Rule 115-C; or

(c) on the report of the local authority concerned or its official referred to in the proviso to sub-rule (5) of Rule 115-C;

(d) on facts otherwise coming to his notice;

call upon the person concerned through notice in Z.A. Form 49-A to refrain for causing damage or misappropriation, to repair the damage or make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or to show cause against it in such time not exceeding fifteen days as may be specified in the notice.

(2) Before issuing a notice under sub-rule (1), the Collector may make such inquiry as he deems proper and may obtain information on the following points-

(a) full description of damage or misappropriation caused or the wrongful occupation made, with details of village, mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market value thereof;

(b) full address along with father's name of the person responsible for the damage, misappropriation or wrongful occupation;

(c) period of wrongful occupation, damage or misappropriation, class of soil of the plot numbers involved and hereditary rates applicable to them; and

(d) value of the property damaged or misappropriation calculated at the prevailing market rate in the locality.

115-E (1) Where any direction for eviction or recovery of any amount of compensation has been issued by the Collector under sub section (4) of Section 122-B an order in Z.A. Form 49-C shall be sent to the Tahsildar concerned for execution who shall as far as possible follow the procedure laid down in paragraphs 137 and 138 of Revenue Court Manual.

(2) The order under Z.A. Form 49-C shall also specify the amount which shall be recovered from the person concerned as expenses of execution which shall include the pay and allowances of the staff deputed to be calculated according to the rates mentioned in paragraphs 405 of the Revenue Court Manual.

115-F (1) All damages ordered to be recovered and expenses incurred in the execution of the orders of the Collector shall be realised as arrears of land revenue and credited to the Consolidated Gaon Fund or the Fund of a local authority other than a Gaon Sabha, as the case may be except that the cost on account of pay and travelling allowance of staff deputed shall be deposited in the Tahsil Sub-treasury under the head "029-Land Revenue- E- other receipts (5) Collection of payment for services rendered".

(2) If the damage or loss caused through misappropriation is of such a nature as is not capable of being repaired or made good, (as in the case of cutting of trees, or grazing of plants or grass) the Collector shall assess the amount of damage or loss in terms of money at the prevailing market rate in the locality. In case of wrongful occupation of land, the damage caused to the Gaon Sabha or the local authority, as the case may be, shall be assessed for each year of such wrongful occupation or any part thereof, at 100 times the amount of rent computed at the sanctioned hereditary rates applicable to the plots concerned. In case the occupant of land continued to remain in such wrongful occupation, he shall be further liable to pay one-eighth of the damages so assessed for every month of the continued occupation after the date of the order.

115-G (1) if the persons wrongfully occupying the land has done cultivation therein, he may be allowed to retain possession thereof until he has harvested the crop subject to the payment by him of 100 times the amount of rent computed at the sanctioned hereditary rates applicable which shall be credited to the Consolidated Gaon Fund or the Fund of the local authority other than the Gaon Sabha 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 Z.A. Form 49-A, 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 wrongfully occupies the same land or any other land within the jurisdiction of the Gaon Sabha or the local authority, as the case may be, a subsequent time, he shall be ejected therefrom without being permitted to gather his produce and possession of the land together with the crop thereon shall be delivered to the Land Management Committee or the local authority, as the case may be.

(2) Nothing in sub-rule (1) 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 a second time in spite of having been ejected under the Act or rules under Section 447 of the Indian Penal Code."

From a plain reading of the provisions contained in Section 122-A of the Act of 1950, it is apparent that the Land Management Committee has been vested, on behalf of the Gaon Sabha, with the power to keep general superintendence, management, preservation and control of all the lands, forests within the village boundaries, trees, fisheries, tanks, ponds, water channels, pathways, abadi sites and hats, bazars and melas vested in the Gaon Sabha under Section 117. Sub-section (2) (a) of Section 122-A of the Act of 1950 deals with the setting and management of the land.

Sub-section 1 of Section 122-B of the Act of 1950 imposes duty upon the Land Management Committee to inform the Assistant Collector of the concerned area with regard to the encroachment or misappropriation over the Gaon Sabha land. The manner for providing the information has been provided under Rule-115(C). Sub-rule (3) of Rule 115-C imposes duty on the Lekhpal to report to the Collector through the Tahsildar all cases of wrongful occupation of damage to and misappropriation of property vested in the Gaon Sabha as soon as they come to his notice and in any case after the conclusion of 'Kharif' and 'Rabi Partal' every year. Sub-rule (4) of Rule 115-C provides that the Tahsildar shall satisfy himself in the month of May every year that each Lekhpal has submitted all such reports. Rule 115-D provides that where the Land Management Committee or the local authority, as the case may be, fails to take action according to Section 122-B (1), the Collector shall, on an application of the Chairman; Member or Secretary of the Committee; or on a report made by the Lekhpal under sub-rule (3) of sub-rule 115-C or 'otherwise' take action. The Collector, after being satisfied, shall call upon the person concerned through notice in Z.A. Form 49-A to refrain from causing damage or misappropriation, to repair the damage or make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or to show cause against it in such time not exceeding fifteen days as may be specified in the notice. Before issuing such a notice, sub-rule (2) of Rule 115-D casts a duty upon the Collector to make an enquiry in the manner prescribed under sub-rule-(2) (a), (b), (c), and (d), as referred above. Rule 115-E of the Rules of 1952 provides procedure for eviction and Rule 115-F prescribes the manner of assessment of damage over Gaon Sabha/Local Authority property and mode of its realization as arrears of Land Revenue. Further, Rule 115-F provides that if somebody has cultivated the land of Gaon Sabha or Local Authority, he may be allowed to retain the possession till he harvests the same on payment of hundred times land revenue of the occupied land. The proviso to Rule 115-G also provides for action under the Indian Penal Code if the property has been occupied for the second occasion.

From going through the provisions as contained in Section 122-B of the Act of 1950 and the Rules framed thereunder, it is apparent that it is the duty of the Land Management Committee and the Lekhpal to inform such encroachment over the Gaon Sabha property. Lekhpal is under legal obligation to make enquiry in each 'Kharif' and 'Rabi' and the Tahsildar is also under an obligation to ensure in the month of May every year that such reports are submitted by the Lekhpals as required under sub rule-(3) of Rule 115-C.

The Act of 1950 and the Rules framed thereunder have not only rested on this but also made further provisions under sub-section (2) of Section 122-B read with Rule 115-D(1)(d), that on such information under sub-section (1) of Section 122-B, which is referable to the Land Management Committee and Lekhpal or 'otherwise', the Assistant Collector if satisfied that any property referred to in sub-section (1) of Section 122-B has been damaged or misappropriated, then he shall issue notice to such person who has caused damage or misappropriated the property. The word 'otherwise' used in this sub-section has wide import. To our mind, on failure of information of such encroachment as provided under Section 122- B (1) read with Rule 115-D (1) (a)(b) and (c) either by the Land Management Committee of Gaon Sabha/Local Authority or by Lekhpal, the Assistant Collector can take action under this Section after the information received from 'other sources', may be any other officer of the State Government or general public. This is the enabling provision which empowers the Collector to take action against the person who has illegally occupied the Gaon Sabha land, on an information other than sources referred to in Section 122- B (1) read with Rule 115- D (1) (a) (b) and (c ).

The view taken by us finds support from a Division Bench judgment of this Court in Motilal Vs. District Magistrate, Lalitpur & Ors., 2003 (5) AWC 3849, wherein the Division Bench considered Rule (4) (1) of the U.P. Panchyat Raj (Removal of Pradhan, Up Pradhan, Members) Enquiry Rules 1997, where the procedure for conducting preliminary enquiry against the Pradhan has been provided. Sub-rule (3) of the Rules of 1997 provides the procedure for filing complaint on an affidavit for holding an enquiry against the Pradhan, Up Pradhan or Members. Under Rule (4) (1), apart from the complaint, the word 'otherwise' has been used which reads as under:-

"4. Preliminary Enquiry.- (1) The State Government may, on the receipt of a complaint or report referred to in Rule 3, or 'otherwise' order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter."

In the aforesaid case, the contention of the petitioner was that the complaint was not filed in accordance with Rule (3) of 1997 Rules, as the same was not on an affidavit, therefore, the District Magistrate was not empowered to pass an order for holding a fact finding preliminary enquiry. While interpreting the word 'otherwise', the Division Bench has observed that the word 'otherwise' used under sub-rule (1) of Rule (4) has wide import and if complaint is not filed as envisaged under Rule (3), the State Government does not lack of power to direct holding of preliminary enquiry. It has further observed that the District Magistrate may, after personally coming to know some serious lapse on the part of the Pradhan, may hold preliminary enquiry without there being any complaint or report as required under sub-rule (3).

In the case in hand, the grievance of the petitioner is that in spite of various representations/complaints made to the District Magistrate and the Commissioner of the concerned Division, no action has been taken and, therefore, he has been compelled to file this writ petition. As would appear from the foregoing discussions that where the Land Management Committee/Lekhpal fails to inform such encroachment for taking action, the Assistant Collector may take action, after receipt of such complaints even made by the general public. We are, therefore, of the view that the Assistant Collector cannot wash out his hands from discharging his duties given under the Act for removal of such encroachments which are alleged to have been made over the Gaon Sabha property. For that purpose, we would like to observe that even if the complaint is made before the Collector and not Assistant Collector, as required under the Act, the Collector is also under an obligation to send the complaints to the Assistant Collector of the concerned area from where the complaint has been received and on such receipt of complaint, either transmitted through the office of the District Collector or directly by the general public, the Assistant Collector is under legal obligation under the provisions of the Act and the Rules framed thereunder, to make an enquiry in this regard, and after being satisfied, issue notice to the encroacher along with full details as required under the Rules and proceed in accordance with the provisions contained under Section 122-B of the Act of 1950 and the Rules framed thereunder.

In view of above legal position, we are of the view that the appropriate remedy for the petitioner herein is to file a comprehensive application/representation giving all details before the Assistant Collector concerned with regard to such encroachment as alleged herein and on receipt of such complaint, the Assistant Collector is directed to proceed in accordance with the provisions of the Act of 1950 and the Rules framed thereunder, and after making necessary enquiry and affording opportunity of hearing to all concerned, take appropriate decision expeditiously.

Subject to above observations, this writ petition is disposed of finally. There shall be no order as to costs.

Order Date :- 7.12.2011

AHA/SKD

(Ran Vijai Singh, J.) (S.R. Alam, C.J.)

Hon'ble S.R. Alam, C.J.

Hon'ble Ran Vijai Singh, J.

Disposed of.

For orders, see order of date passed on separate sheets.

07.12.2011

AHA

(Ran Vijai Singh, J.) (S.R. Alam, C.J.)