Allahabad High Court
Ashok Kumar And Another vs State Of U.P. And Another on 6 April, 2022
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 92
Case :- APPLICATION U/S 482 No. - 20181 of 2021
Applicant :- Ashok Kumar And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Niklank Kumar Jain
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
Instant petition has been filed by the applicants/petitioners for quashing of the proceeding in pursuance of charge-sheet dated 23.06.2020 bearing C.S. No. 160/2020 as well as summoning order dated 17.03.2021 passed by the Civil Judge (JD)/J.M., Jalesar, Etah in Case no. 2615/2021 (Old Case No. 106/2021) arising out of case crime no. 146 of 2020, under Section 3/5 of Prevention of Damage to Public Property Act, 1984, Police Station Awagarh, District Etah pending in the court of Civil Judge (JD)/J.M., Jalesar, Etah.
The present petition is being decided at this stage, with the consent of the learned counsel for the parties.
Learned counsel for the applicants has submitted that as per the allegation in the FIR is that the applicants are illegally constructing on the land of Gram Sabha. It is further submitted that the offence as alleged in the FIR under Section 3/5 of Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as 'the Act, 1984') is not attracted in the present case. The Act, 1984 has been enacted with a view to curb acts of vandalism and damage to public property including destruction and damage caused during riots and public commotion. It is further submitted that against the illegal construction on a public land, the remedy is provided under Section 67 of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as 'the Code, 2006').
Learned counsel for the applicants has also relied upon a judgment of this Court dated 06.08.2020 passed by a co-ordinate Bench of this Court in APPLICATION U/S 482 No.- 9964 of 2020 (Munshi Lal and Another vs. State of U.P. and Another), wherein this controversy has been decided and has attained finality.
Learned AGA has submitted that there is a report submitted by the Lekhpal that the applicants have illegally constructed a house over the Gram Sabha Land.
After hearing learned counsel for the parties and going through the record as well as the judgment relied by learned counsel for the applicants, as discussed above, it is found that in the cases of any unauthorized occupation on the Gram Sabha land, the mechanism for taking action is provided under Section 67 of the Code, 2006, the same is quoted hereinbelow, for ready reference:-
"67. Power to prevent damages, misappropriation and wrongful occupation of Gram Sabha properties.- (1) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Sabha or other local authority is damaged or misappropriated, or where any Gram Sabha 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 Sub-Divisional Officer concerned in the manner prescribed.
(2) Where from the information received under sub-section (1) or otherwise, the Sub-Divisional Officer 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, or, as the case may be, why he should not be evicted from such land."
In place of the mechanism provided under the statute for removing the illegal construction if any, by the applicants, the FIR was lodged on 20.05.2020 against the applicants by Lekhpal under Section 3/5 of the Act, 1984. The provisions of the Act, 1984 is not applicable in the cases where there is any unauthorised occupation or illegal construction on the public property. The object or intention of enactment of the Act, 1984 is to prevent or curb acts of vandalism and damage to public property including destruction and damage caused during riots and public commotion and just to strengthen the law to enable the authorities to deal effectively with such matters of damages to public property whereas there is no allegation against the applicants that they had damaged the public property during riots or in public commotion.
The judgment relied by learned counsel for the applicants in the case of Munshi Lal and another (supra) by which the controversy has been determined by this Court in a matter having almost the identical facts that there was illegal occupation by some persons on the Gram Sabha Land and this Court by a detailed judgment has decided that in cases of illegal occupation or damage or mischief on public Land, the procedure is provided under Section 67 of the Code, 2006 and also discussed that the provisions of the Act, 1984 is applicable in the cases where mischief has been played by a person to damage or vandalize the public property during riots and commotion.
If the applicants are illegally making construction on the Gram Sabha land, it is said to be a disputed question of fact and can be determined by instituting appropriate proceedings before the Revenue court. The case of applicants does not fall within the mischief under Section 3/5 of the Act, 1984. The continuation of criminal proceedings being an abuse of process of law and in the ends of justice require that the said proceedings be quashed.
In view of above, the proceedings of case No. 2615/2021 (old case no. 106/2021) arising out of case crime no. 146 of 2020, under Section 3/5 of the Prevention of Damage to Public Property Act, 1984, Police Station Awagarh, District Etah are quashed.
In the result, the petition is allowed.
Order Date :- 6.4.2022
Nitesh
