Asgar vs State Of U P And 3 Others
2021 Latest Caselaw 9715 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 18
 

 
Case :- WRIT - C No. - 4773 of 2021
 

 
Petitioner :- Asgar
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Yogendra Pal Singh
 
Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani
 

 
Hon'ble Ajay Bhanot,J.

By the impugned order dated 30.10.2019 the Tehsildar/ Assistant Collector First Division has lodged the proceedings under Section 67 of the U.P. Revenue Code, 2006 (hereinafter referred to as 'Code'.) has directed the eviction of the petitioner from disputed parcel of land after imposing damages and other charges. The petitioner fared no better before the appellate court which by the impugned order dated 14.10.2020 has affirmed the judgment of the court of first instance and rejected his appeal.

The proceedings for eviction of the petitioner under Section 67 of the Code for illegally encroaching upon gram panchayat land were taken out by issuance of a show cause notice and registering Case No. 59 of 2019 Computerized Case No. 201909550101867. The petitioner tendered a reply to the show cause notice stating that he had erected his house on the disputed parcel of land. It is the sole dwelling unit of his family. Similar objections were taken by the petitioner before the appellate authority in the memo of appeal. The petitioner claimed that he was was entitled to the benefit of Section 67 (a) Code.

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 perequisite 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, pleadings 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.

In fact proceedings under Section 67 (a) of the Code should be registered immediately after a defence in that regard is made in proceedings under Section 67 of the Code.

The proceedings under Sections 67 and 67(a) of the Code, should be consolidated and heard together by the same court. Such procedure would faithfully implement the legislative intent and also serve the interest of justice.

In the case at hand the appellate court notices the fact that the petitioner had specifically contended that his house was standing on the disputed parcel of land and he was entitled to the protection of Section 67 (a) Code. The trial court neglected to return a specific finding on this critical aspect while proceeding to determine the issue finally. The appellate court misdirected itself in lay by holding that it was open to the petitioner to take out a fresh proceeding under law. No fresh proceedings are liable to be taken out in the case as stated earlier.

The courts in proceedings under Section 67 Code are under obligation of law to decide the eligibility of the noticee for protection under Section 67 (a) Code, in case such defence is tendered by the noticee. The said proceedings shall be registered separately. But both cases will be consolidated and heard and decided together.

In the wake of preceding discussion the impugned orders dated 14.10.2020 and 30.10.2019 are vitiated and contrary to law. The orders dated 14.10.2020 and 30.10.2019 are liable to be set aside and are set aside.

The matter is thus remitted to the respondent No. 3 /Tehsildar (Judicial) Tehsil Sadar, District Muzaffarnagar/ Assistant Collector 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 fresh application under Section 67(a) of the Code before the respondent No. 3/Tehsildar (Judicial) Tehsil Sadar, District Muzaffarnagar/ Assistant Collector.

(2) The respondent No. 3/Tehsildar (Judicial) Tehsil Sadar, District Muzaffarnagar/ Assistant Collector shall register the proceedings under Section 67 (a) upon the submission of such application. Proceedings under Section 67(a) so instituted shall be consolidated and heard with proceedings under Section 67 of the Code registered as Case No. 59 of 2019 and decided by a common judgment.

The writ petition is allowed to the extent indicated above.

Order Date :- 6.8.2021

Nadeem Ahmad