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Allahabad High Court · body

2016 DIGILAW 2468 (ALL)

BHOLE NATH v. STATE OF U. P.

2016-07-18

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri B.L.Verma, learned counsel for the petitioners, learned Standing Counsel for the State respondents, and Sri M.K.Yadav learned counsel appearing for the Gaon Sabha. 2. Through this writ petition, following prayers have been made. A. Issue a writ order or direction in the nature of mandamus commanding or directing the respondent Nos. 2 and 3 keep clear the Arazi No. 396/0.0930 hectare recorded as Public Pond and inspect the encroachment/construction made by the respondent Nos. 4 to 8 and take legal action against them. B. Issue a writ order or direction in the nature of mandamus directing and prohibiting the respondent Nos. 4 to 8 not to raise and encroach upon the public pond. C. Issue a writ order or direction in the nature of mandamus commanding or directing the respondent Nos. 2 to 3 to take strict action in accordance with law against the respondent Nos. 4 to 8 and also stop the second installment or remaining balance in the scheme of Ram Manohar Lohiya Avas Yojna. D. Issue any such other and further orders as this Hon’ble Court may deem fit and proper under the circumstances of the case. E. Award the cost of the writ petition through out in favour of the petitioners. 3. In substance, the petitioners appear to be aggrieved by encroachment over the pond on the Plot No. 396 measuring about 0.0930 hectare situated in Village Jamaluddinpur by respondent Nos. 4 to 8 by raising construction under Dr. Ram Manohar Lohiya Awas Yojana. Prayer has also been made for issuing a writ of mandmaus commanding the respondent Nos. 4 to 8 not to raise the construction and encroach upon the public pond. Further prayer has been made for issuing a writ of mandamus directing the respondent Nos. 2 and 3 to take strict action in accordance with law against the respondent Nos. 4 to 8. 4. Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the State respondents and learned counsel for the Gaon Sabha have raised a preliminary objection with regard to maintainability of the writ petition. 2 and 3 to take strict action in accordance with law against the respondent Nos. 4 to 8. 4. Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the State respondents and learned counsel for the Gaon Sabha have raised a preliminary objection with regard to maintainability of the writ petition. In their submission, under the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as ‘the Code’) there is a specific provision under Section 67 of the Code and Rule 67 of Revenue Code Rules, 2016 (in short ‘the Rules’) for redressal of such kind of grievance and the petitioner may avail the aforesaid remedy instead of utilizing the forum of Article 226 of the Constitution of India, which is the extraordinary jurisdiction of this Court. 5. On being confronted as to whether any such approach has been made before the Assistant Collector of the concerned Tehsil, learned counsel for the petitioners submits that the petitioners have made an application before the Sub-Divisional Officer for redressal of their grievance. 6. From the perusal of the application, it transpires that the application is not referable to any section under which it has been filed. Learned counsel for the petitioner could not show that it is the Sub-Divisional Officer who is the competent authority for ensuring removal of encroachment made over the gaon sabha land under the Code. 7. Before commencement of Revenue Code 2006, which has been made effective since 10/11th February, 2016, there was a specific provision for removal of encroachment from gaon sabha land under Section 122-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’). The corresponding rules, how to make application for removal of encroachment and how and in what manner authority competent has to take final decision and how to execute the order passed by the competent authority, were framed known as U.P.Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as ‘Rules of 1952’). Here in the present code, in place of Section 122-B of the Act, Section 67 of the Code has been enacted and in place of Rules 115-C to 115-E of the Rules 1952, Rule 67 has been framed under the Rules. For convenience, Section 122-B of the Act and Section 67 of the Code are reproduced herein under : U.P. Zamindari Abolition and Land Reforms Act, 1950. U.P. Revenue Code, 2006. For convenience, Section 122-B of the Act and Section 67 of the Code are reproduced herein under : U.P. Zamindari Abolition and Land Reforms Act, 1950. U.P. Revenue Code, 2006. “Section 122-B. Powers of the Land Management Committee and the Collector .— (i) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damages 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, 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 [thirty days] 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). (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 provisions of the U. P. Land Revenue Act, 1901 and includes an Additional Collector]. (4-F). Explanation .—For the purposes of this section, the expression ‘’Collector’ means the officer appointed as Collector under the provisions 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 [May, 1, 2002] 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 [he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land]. Explanation —The expression ‘agricultural labourer’ shall have the meaning assigned to it in Section 198. [(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 Rules 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 provisions of this Act. 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. (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 Sub-Divisional Officer may allow in this behalf, or if the cause shown is found to be insufficient, the Sub-Divisional Officer 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 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 Sub-Divisional Officer 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 Sub-Divisional Officer 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 Sub-Divisional Officer under this section shall be, 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. 8. It will also not be out of place to mention that under Section 122-A of the Act, the Superintendence, Management and Control over the Gaon Sabha Land was conferred upon the Land Management Committee. Explanation .—for the purposes of this section, the word ‘’land’ shall include the trees and buildings standing thereon. 8. It will also not be out of place to mention that under Section 122-A of the Act, the Superintendence, Management and Control over the Gaon Sabha Land was conferred upon the Land Management Committee. Here under Section 60 of the Code, the Superintendence, Management and Control of Bhumi Prabandhak Samiti has been provided and there is a separate Section 61 in the Code which talks about the management of tanks (ponds). For appreciation, Section 122-A of the Act and Sections 60 and 61 of the Code are reproduced hereinunder. 122-A of U.P. Zamindari Abolition and Land Reforms Act, 1950 Section 60 of U.P. Revenue Code, 2006. Section 61 of U.P. Revenue Code, 2006 “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. 60. (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. 60. Superintendence, management and control by Bhumi Prabandhak Samiti .— (1) Subject to the provisions of this Code, every Bhumi Prabandhak Samiti shall be charged, for and on behalf of the Gram Sabha, with the superintendence, preservation, management and control of all land and other things entrusted or deemed to be entrusted to that Gram Sabha under Section 59 or over which such Gram Sabha is entitled to take possession under this Code or any other law for the time being in force. (2) Without prejudice to the generality of the foregoing provisions, the functions and duties of the Bhumi Prabandhak Samiti shall include: (a) the settlement and management of land; (b) the preservation, maintenance and development of forests and trees; (c) the maintenance and development of abadi sites and village communications; (d) the management of hats, bazaars and melas; (e) the maintenance and development of fisheries and tanks; (f) the development of cottage industries; (g) the development and improvement of agriculture; (h) the conduct and prosecution of suits and proceedings by or against the Gram Sabha; and (i) such other matters as may be prescribed. 61. Management of village tanks .— Where a tank in any village is entrusted or deemed to be entrusted to any Gram Sabha under Section 59, then, notwithstanding anything contained in any contract or grant or and law for the time being in force, its management by such Gram Sabha shall be regulated by the following conditions, namely: (a) where the area of the tank measures 0.5 acre or less, it shall be reserved for public use by the inhabitants of the village; (b) where the area of the tank exceeds measures 0.5 acres, the Bhumi Prabandhak Samiti shall, with the previous approval of the Sub-Divisional Officer, let it out in the matter prescribed. 9. 9. As would appear from the perusal of Section 122-A of the Act and 60 of the Code, it is the Land Management Committee which shall be charged on behalf of Gram Panchayat i.e. Superintendence, preservation, management and control of all land and other things entrusted or deemed to be entrusted to that Gram Panchayat under Section 59 or over which such Gram Panchayat is entitled to take possession under this Code or any other law for the time being in force. 10. The Land Management Committee is vested with the same power with regard to mangement of the ponds under Section 61 of the Code. The framer of the new code and old Act while conferring the right of maintenance etc. have also imposed duties upon the gaon sabha, local authority and the state authorities to ensure that there shall be no encroachment over the gaon sabha land or the land belonging to the other local authorities and in this regard under the Rules of 1952, Rules 115 -C to 115-E were framed and in new code, almost similar provisions have been inserted under Rule 67 regarding intimation to the competent authority and the duty of the competent authority ensuring removal of such encroachment in accordance with the provisions contained under Rule 67 of the Rules. For appreciation, a comparative chart of Rules 115-C to Rule 115-E of the Rules of 1952 and Rule 67 of the Rules are reproduced hereinunder : U.P.Zamindari Abolition and Land Reforms Rules, 1952 Uttar Pradesh Revenue Code Rules, 2016 “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 alongwith 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. 67. Further inquiry by Assistant Collector (Section 67) (1) On receipt of the information under rule 66, or on facts otherwise coming to his knowledge, the Assistant Collector may make such inquiry as he deems proper and may obtain further information regarding the following points : (a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, plot number, area, boundary, property damaged or misappropriated and market value thereof; (b) full address alongwith parentage of the person responsible for such damage, misappropriation or wrongful occupation; (c) period of wrongful occupation, damage or misappropriation and class of soil of the plots involved; (d) value of the property damaged or misappropriated calculated at the circle rate fixed by the Collector and the amount sought to be recovered as damages. (2) The Assistant Collector shall thereafter proceed to take action under Section 67(2) and for that purpose issue a notice to the person concerned in R.C. Form-20 to show-cause as to 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 notice referred to in Section 67(2) remains uncomplied with or if the cause shown by the person concerned is found to be insufficient, the Assistant Collector may direct by order that- (a) such person be evicted by using such force as may be necessary; or (b) the amount of compensation for damage or wrongful occupation ordered by the Assistant Collector, if not paid in specified time, may be recovered as arrears of land revenue, including the amount of expenses referred to in sub-rule (3). (4) The amount of damages sought to be recovered and the expenses of execution of the order shall be specified in such notice, which shall be determined in the following manner : (a) In the case of damage or misappropriation, the amount of damages shall be assessed at the prevailing market rate. (b) In the case of unauthorized occupation of any land, the amount of damages shall be the amount equal to the five percent of the market value of the land calculated at the circle rate fixed by the Collector for each year of unauthorized occupation. (c) The expenses of execution of the order shall be assessed on the basis of one day’s pay and allowances payable to the staff deputed. (5) If the person wrongfully occupying the land has done cultivation therein, he may be allowed to retain possession thereof until he has harvested the crops subject to the payment by him of the amount equal to the five percent of the market value of the land calculated as per the circle rate which shall be credited to the Consolidated Gaon Fund or the Fund of the local authority other than the Gram Panchayat 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 R.C. Form-20, the 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 again wrongfully occupies the same land or any other land within the jurisdiction of the Gram Panchayat or the local authority as the case may be, he shall be evicted therefrom forthwith and possession of the land vacant or together with the crop thereon shall be delivered to the Land Management Committee or the local authority as the case may be. (6) The Assistant Collector shall make an endeavour to conclude the proceeding under Section 67 of the Code within the period of ninety days from the date of issuance of the show-cause notice and if the proceeding is not concluded within such period the reasons for the same shall be recorded. (7) Nothing in sub-rule (5) 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 second time in spite of having been evicted under the Code or the rules, under Section 447 of the Indian Penal Code, 1860. (8) There shall be maintained in the office of each Collector a register in R.C. Form-21 showing details of the amount ordered to be realized on account of damages and compensation awarded in proceedings under Section 67. (9) A similar register shall also be maintained by each tahsildar s howing realization of damages and compensation awarded in such proceeding. The entries made in the register maintained at tahsil shall be compared with the register maintained by the Collector to ensure accuracy of the entries made therein. (10) A progress report showing realization of damages and compensation awarded in proceedings under Section 67 shall be sent to Board of Revenue, U.P., Lucknow by the fifteenth day of April and October every year. The Board after consolidating the report so received from the districts shall send it to the Government. (10) A progress report showing realization of damages and compensation awarded in proceedings under Section 67 shall be sent to Board of Revenue, U.P., Lucknow by the fifteenth day of April and October every year. The Board after consolidating the report so received from the districts shall send it to the Government. (11) Nothing in rules 66 and 67 shall debar any person from establishment of his right, title or interest in a Court of competent jurisdiction in accordance with the law for the time being in force in respect of any matter for which any order has been made under Section 67 of the Code. 11. From the conjoint reading of Section 67 of the Code and Rule 67 of the Rules, it would transpire that as to who are responsible for reporting the unauthorized encroachments, how to inform and to which authority in what manner has been detailed under Section 67 of the Code and Rule 67 of the Rules. 12. In view of Sub-Section 1 of Section 67 of the Code, it is the Bhumi Prabandhak Samiti or other local authority or the Lekhpal concerned as the case may be to inform the Assistant Collector in the manner prescribed. The manner has been prescribed under Rule 67 of the Rules. 13. Sub-section 2 of Section 67 of the Code provides that after the information received under Sub-Section (1) or otherwise if 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. 14. Similar kind of language was used in Sub-Section 2 of Section 122-B of the Old Act and while interpreting Sub-section 2 of Section 122-B of the Old Act, a Division Bench of this Court in Rama Shankar v. State of U.P. and others, 2012(10) ADJ 734 , has observed as under : 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 v. District Magistrate, Lalitpur and others, 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. 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). 15. Here in this case too, encroachment over the pond has neither been intimated by the Land Management Committee of the village nor by the Lekhpal and the petitioner if filed an application informing the authority regarding such encroachment, the application of the petitioner, in my considered opinion, shall be covered under the umbrella of the world ‘otherwise’ used Section 67 (2) and Rule 67 of the Rules. 16. The intention of the legislature is very much clear on the point that firstly it is the duty of the Gaon Sabha/Land Management Commitee and the local authority and the Lekhpal of the concerned area to make inspection of the site in each fasli while preparing the khasra and if any encroachment is found to be there, the same has to be reported to the Assistant collector who happens to be the competent authority under Section 67 of the Code or Section 122-B of the Act and on their failure, the competent aurthority was also given additional power to ensure removal of such encroachment if it comes to the knowledge of the encroachment over the gaon sabha land or the land belonging to the local authority from any other source. It may be an individual private person or public representative or any other Government servant. Ofcourse, before taking any action, there should be strict compliance of Rule 67 of the Rules, meaning thereby after receipt of information on R.C. Form 19 or on simple application, necessary preliminary inquiry is to be made and thereafter on R.C.Form 20, notice to be issued to the person concerned to show-cause as to why compensation for damage, misappropriation or wrongful occupation be not recovered from the unauthorized encroacher. 17. 17. In view of the fact that under the Code, it is the Assistant Collector who has been empowered to pass an order for removal of such encroachment and ensuring removal of such encroachment, the application by an individual private person has to be made to the Assistant Collector but if the application has been made other than the Assistant Collector, to the Commissioner or the Collector or the Deputy Collector or any other authority, in view of the law laid down by this Court in the case of Rama Shankar (supra) the authority concerned i.e. the Commissioner or the Collector or the Deputy Collector or any other authority, after receipt of such information regarding encroachment has to immediately transmit the application to the Assistant Collector of the concerned tehsil and after receipt of the application either from the office of the Commissioner or the Collector or the Deputy Collector or any other authority, the Assistant Collector thereafter is obliged to proceed in accordance with law and take suitable decision in accordance with the provisions contained under Rule 67 of the Rules. I find it appropriate to reproduce paragraph 13 of the judgment in the case of Rama Shankar (supra) which talks about the receipt of such complaint by various authorities and their duty after receipt of such complaints. 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. 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 alongwith 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. 18. Here in this case as would appear from the record that the petitioner has filed application before the Sub-Divisional Officer Shahganj District Jaunpur. The Sub-Divisional Officer Jaunpur is directed to send the application filed by the petitioner before the Assistant Collector of concerned Tehsil within two weeks from the date of receipt of certified copy of this order and in addition to that, the petitioner is also given liberty to file a fresh application before the Assistant collector of the concerned Tehsil and in case, such application is filed or otherwise received, the Assistant Collector of the concerned Tehsil is directed to take appropriate decision on the petitioner’s application in accordance with law expeditiously. 19. With the aforesaid observation/direction, this writ petition is disposed of. ———————