Allahabad High Court
Subhash vs State Of U.P. And Another on 16 January, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 677 of 2023
Applicant :- Subhash
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Janardan Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Janardan Yadav learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
By means of the present 482 application, the applicant is assailing the summoning order dated 20.7.2018 and charge sheet dated 07.10.2017 arising out case crime no. 321 of 2017, under Section 2/3/5 of the Prevention of Damages to the Public Property Act, 1984, P.S. Mubarakpur, District Azamgarh pending in the Court of Chief Judicial Magistrate, Azamgarh.
Contention raised by the counsel that learned counsel for the applicant has cited Section 67 of the U.P. Revenue Code which reads thus:-
"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."
Thus it is clear that identification of the property in question is the sine-qua-non for the proceeding under Section 2/3/5 of the Prevention to the Public Property Act, 1984.
Learned counsel for the applicant submits that the identity of land in question is still disputed and is not confirmed that property in question is a public property or not.
In the light of the aforesaid Section 67 of the U.P. Revenue Code the Sub-Divisional Officer shall conclude the proceeding with regard to the identification of the property in question within next three months positively and give a report to the concerned CJM with regard to the identity of the land. If it is found that the property in question belongs to public property, then the concerned court shall after recording his satisfaction, not in a printed proforma would file a fresh summoning order within one month thereafter, after a receipt of the report of the Sub-Divisional Officer with regard to the identity of the land.
This exercise has to be taken on the top most priority by the Sub-Divisional Officer and so long as the identity of the land in question is not established, the effect and operation of the impugned summoning dated 20.07.2018 is hereby quashed with the liberty to file a fresh summoning order within the aforesaid condition against the applicant.
Learned counsel for the applicant has also read upon the judgment of this Court in the case of the Munshi Lal and another Vs. State of U.P. and another in Application 482 No. 9964 of 2020 decided on 06.08.2020 reported in 2020 (8) ADJ 311/ 2020 6 A.L.J. 341 to buttress this contention.
With this observation the present 482 application is disposed of.
Order Date :- 16.1.2023
Rajesh
