Allahabad High Court
Fahim Baig vs State Of U..P. And Others on 21 September, 2015
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Court No. - 38
Case :- WRIT - C No. - 16982 of 2012
Petitioner :- Fahim Baig
Respondent :- State Of U..P. And Others
Counsel for Petitioner :- Dinesh Kr. Yadav,A.R. Nadiwal,Kripa Shankar
Counsel for Respondent :- C.S.C.,Amit Kumar Asthana,Kripa Shanker Yadav,M.N.Singh,Yatindra
Hon'ble Pankaj Mithal,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondents No.1 to 4. Notice on behalf of respondent No.6 has been accepted by Sri M.N. Singh.
The petitioner by means of this writ petition has challenged the order dated 17.3.2012 passed by the Up-Ziladhikari, Sadar, Azamgarh. The said order directs the petitioner to vacate part of Arazi No.106 which is in his unauthorized occupation for the last two months failing which he would be dispossessed from the same and the expenses for his dispossession shall be recovered from him as arrears of revenue and a first information will be lodged against him under Section 3/5 of the Prevention of Damage to Public Property Act, 1984.
On the basis of the pleadings exchanged between the parties on record, the aforesaid land is the land of Gaon Sabha recorded as manure pit which cannot be occupied by any person otherwise than with the permission of the Gaon Sabha. The said land is not allotted to the petitioner and that he is in unauthorized occupation of the same.
Learned Standing Counsel has filed supplementary counter affidavit stating that no proceedings under Section 122-B of the U.P. Zaminari Abolition and Reformed Act, 1950 (hereinafter referred to as the 'Act') were ever drawn against the petitioner for his eviction from the said land. He also submits that the petitioner was never evicted from the said land earlier.
The impugned order is said to have been passed by the authority concern in purported exercise of power under Section 123-B of the Act. The aforesaid provision provides for punishment for occupation of the Gaon Sabha land and for summary eviction of person who has re-occupied Gaon Sabha land after his eviction. Section 123-B of the Act for the sake of convenience is reproduced below:
"123-B. Punishment for occupation of Gaon Sabha land. - (1) Where any person has been evicted under this Act from any land vested in a Gaon Sabha, and such person or any other person, whether claiming through him or otherwise, thereafter occupies such land or any part thereof without lawful authority, such occupant shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(2) Any Court convicting a person under sub-section (1) may make an order for evicting the person summarily from such land and such person shall be liable to such eviction, without prejudice to any other action that may be taken against him under any law for the time being in force.
(3) Without prejudice to the provisions of sub-section (1) and (2), the Collector may, whether or not a prosecution is instituted under sub-section and may for that purpose, use or cause to be used such force as may be necessary for evicting any person found in occupation thereof."
It provides that where any person has been evicted under the Act from any land vested in Gaon Sabha and such person or any other person claiming through him occupies the said land without any lawful authority, he can be punished with imprisonment or fine or both. It further provides that the court apart from convicting the person as aforesaid may also make order for his summary eviction and that the Collector is authorised to retake the possession of such land.
The manner of eviction of a person in unauthorized occupation of the Gaon Sabha land has been provided under Section 122-B of the Act. It provides for initiation of proceedings by the Assistant Collector and for passing order of eviction of such unauthorized occupant.
A simple reading of Section 122-B and 123-B of the Act reveals that it is only after an order of eviction is passed against the unauthorized occupant of the Gaon Sabha land and he is so evicted therefrom under Section 122-B of the Act that when he again occupies the Gaon Sabha land, he can be punished with imprisonment or fine or both and may be summarily directed to be evicted from the Gaon Sabha land under Section 123-B of the Act.
In other words, the punishment and the procedure prescribed under Section 123-B of the Act is to be followed after the proceedings for eviction under Section 122-B have been completed. Secondly, the provisions of Section 123-B of the Act are applicable only if a person re-occupies the land of the Gaon Sabha after his eviction therefrom. It is not the provision for punishment or eviction of unauthorized occupant in first instance.
In view of the aforesaid legal position, as it is no once case that the petitioner after eviction under Section 122-B of the Act has reoccupied the Gaon Sabha land, no order against him could have been passed under Section 123-B of the Act.
In view of the aforesaid facts and circumstances, the impugned order dated 17.3.2012 is not only illegal but is also without jurisdiction and is accordingly quashed.
The writ petition is allowed.
Order Date :- 21.9.2015
Brijesh
