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Allahabad High Court · body

2016 DIGILAW 3098 (ALL)

RDHESHYAM TIVARI v. STATE OF U. P.

2016-09-09

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Saiful Islam Siddiqui, alongwith Quazi Mohammad Akaram, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Diwakar Singh, learned counsel for the gaon sabha. 2. Through this writ petition, the petitioner has prayed for following reliefs: “(a) Issue a writ, order or direction in the nature of mandamus commanding/directing to the respondent No. 2 & respondent No. 3 to measuring area 0.026 hectare, Gata No. 83, measuring area 0.042 hectare and Gata No. 118 measuring area 0.033 recorded as chakroad, road and nali in a revenue record at Village Basainpur, Post Shuklapur, Tehsil - Meja, District - Allahabad by the respondent No. 5 to respondent No. 11. (b) Issue any other writ, order or direction which this Hon’ble may deem just and proper in the circumstances of the case. (c) Allow this writ petition with costs in favour of the petitioner.” 3. In substance, the petitioner appears to be aggrieved by non-removal of the encroachment over Gata No. 83 measuring about 0.026 hectare and Gata No. 118 measuring about 0.042 hectare recorded as chak road, road and nali situated in Village Basainpur, Tehsil - Meja, District - Allahabad. 4. Learned counsel for the petitioner submits that the petitioner has been making complaints from time and again and orders have also been passed for the removal of encroachment by the Sub Divisional Officer as well as District Magistrate, but nothing has been done as yet. 4. Learned counsel for the petitioner submits that the petitioner has been making complaints from time and again and orders have also been passed for the removal of encroachment by the Sub Divisional Officer as well as District Magistrate, but nothing has been done as yet. He has invited attention of this Court towards order dated 12.8.2014 passed by the Sub Divisional Officer, Meja containing the report of the Revenue Inspector, which reads as under: jktLo fujh{kd ^pkS0^ ys[kiky dh tkap vk[;k fnuakd 22&7&2014 iz0jk0fu0pkS0 dh vk[;k fnuakd 24&7&2014 o rglhynkj estk dks tkap vk[;k fnuakd 8&8&2014 ls Li”V gS fd xkVk la[;k 159 jdck 0-026 gs0 pdekxZ] xkVk la[;k 83 jdck 0-042 gs0 jkLrk xkVk la[;k 118 jdck 0-033 ukyks ij voS/k :i ls dCtk fd;k x;k gSA d`i;k ys[kiky dh vk[;kuqlkj voS/k vfrdze.k djus okys mijksDr O;fDr;ksa dks fu;ekuqlkj yks0l0{k0 fujk0 vf/k0 dh /kkjk 3@5 ds vUrxZr izFke lwpuk Lo;a rgjhj nsdj djk;s rFkk voxr djk;sA ,l0Mh0,e0 12&8&2014 After the aforesaid, when nothing was done, the petitioner again filed an application before the District Magistrate, Allahabad, who on 28th July, 2016, has passed the following order: ,l0Mh0,e0 estk d`i;k fu;ekuqlkj pdjksM ukyh dks voS/k dCts ls vfrdze.k gVok;s vko';drkuqlkj vfrpkfj;ks ds fo:} ,Q0vkbZ0vkj0 fof/kd izfdz;k viuk;sA d`rs ftykf/kdkjh bykgkcknA 28&7&2016 It is stated that the aforesaid orders have again fallen in vain. 5. This Court desired to know that under which provisions of law, these kinds of orders have been passed ignoring the statutory provision contained under Section 122B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short, ‘the Act’) and the relevant rules 115-C to 115-E of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (in short, ‘the Rules’), which were applicable prior to 11.2.2016 and thereafter, Section 67 of the U.P. Revenue Code, 2006 (in short, ‘the Code of 2016’) read with rule 67 of the U.P. Code Rules, 2016 (in short, ‘the Rules of 2016’) have been made applicable for redressal of such kind of grievance. 6. 6. This Court in the case of Rama Shankar v. State of U.P. and others, 2012(10) ADJ 734 and Bhole Nath and another v. State of U.P. and others, 2016(7) ADJ 430 , has already held that whenever any report or information is given to the District Magistrate or Sub Divisional Officer regarding encroachment over the gaon sabha land, he has to immediately transmit the application before the Assistant Collector of the Tehsil concerned, who has to proceed in accordance with the provisions contained under Rules 115-C to 115-E of the Rules of 1952 prior to 11.2.2016 and thereafter, in accordance with Section 67 of the Code of 2006 read with rule 67 and other relevant rules of the Rules of 2016, but no satisfactory answer could be given either by the learned counsel for the petitioner or the counsel for the respondents. 7. Before this Court, these kind of orders are coming everyday where the execution of such orders are being sought on the basis of such kind of administrative orders. The orders which have no statutory support or have not been passed by a competent authority empowered under the relevant statute, cannot be executed, but ignoring the same, the noble procedures are being adopted throughout. This Court in the case of Rama Shankar (supra) taking note of the relevant provisions of the Act of 1950 and the Rules of 1952 has held that if any person has made encroachment upon the gaon sabha land or any other local authority, then he has to be evicted only in accordance with the procedure prescribed, but instead of doing so, the orders are being passed without keeping in mind the relevant provisions contained under the relevant statute and the authorities are ignoring the same. The country is governed by the rule of law and the orders of the authorities, which are not based upon the authoritative pronouncement or based upon any relevant statute, can neither be executed nor can be appreciated and if it is permitted to do so, it will create chaos amongst the public, which will be against the will of the democracy. 8. 8. Considering the same, the Principal Secretary, Revenue, Government of U.P., Lucknow is directed to issue circular in this regard taking note of the judgment of this Court in the case of Rama Shankar (supra) and Bhole Nath (supra) requiring the authorities to act in accordance with law. 9. For these types of cases, Section 67 of the Code of 2006 read with rule 67 of the Rules of 2016 are applicable, which provide that the proceeding initiated under Section 67 of the Code of 2006 has to be concluded within a period of 90 days. It is only question of 90 days upto when the authorities are expected to wait. Under the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 and the Rules framed thereunder in 1952 as well as under rule 56 of the Rules of 2016, there is a specific provision that the Lekhpal of the concerned area has to report about the unauthorized occupation over the gaon sabha land at the end of each Kharif and Ravi partal and if it is the duty entrusted upon the Lekhpal and the Tehsildar of the concerned Tehsil, then the authorities have to make their self-assessment and think as to why these provisions are not adhered to. 10. The Land Management Committees of the respective Gaon Sabhas are also authorized to report such encroachment to the concerned Tehsildar for removal of such encroachment under the Act of 1950 as well as Revenue Code, 2006 and Rules of 2016, but nothing is being done and whenever member of the public approaches the authorities concerned, these kinds of administrative orders, which are not supported with any statute, are being passed, which indirectly help the unauthorized encroachers, as whenever such orders are challenged before the Court, the same are being quashed. Therefore, passing of this kind of order be stopped. 11. So far as the grievance of the petitioner herein is concerned, he is at liberty to file an appropriate application before the Assistant Collector concerned. In case such approach is made, alongwith certified copy of the order of this Court, the Assistant Collector shall do the needful, expeditiously keeping in mind the law laid down by this Court in the case of Bhole Nath and another v. State of U.P. and others, 2016(7) ADJ 430 , provided there is no other legal impediment. 12. In case such approach is made, alongwith certified copy of the order of this Court, the Assistant Collector shall do the needful, expeditiously keeping in mind the law laid down by this Court in the case of Bhole Nath and another v. State of U.P. and others, 2016(7) ADJ 430 , provided there is no other legal impediment. 12. With the aforesaid observations/directions, this petition is disposed of.