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2023 DIGILAW 1598 (ALL)

Surendra Tiwari v. State of U. P.

2023-07-05

SAURABH SRIVASTAVA

body2023
JUDGMENT Saurabh Srivastava, J. Heard Shri Juned Alam, learned counsel for the petitioner, Shri Rajesh Kumar Tewari learned Additional Chief Standing counsel for state respondents and Shri Brij Kumar Saroj holding brief of Shri Sudhir Bharti, learned counsel for respondent no.3. 2. Through the instant Public Interest Litigation the petitioner prays for redressal of his grievances arising out of encorachment carried out by respondent nos. 45 to 6. This is the allegation of the petitioner that all the private respondents encroached the land pertaining to pond and public utility lands recorded in the revenue record as 'banjar' against plot no.129 area 0.081 hectare. 3. The encroachment as alleged by the petitioner has been carried out in the shape of permanent construction, opening the drainage over the public way and by way of fixing their boundary marks which is directly creating inconvenience to the public at large, specially for the villagers residing at Village Panchayat Sargatiya Karan Patti, Tappa - Dhuriya Vijaypur, Pargana Sidhuwa Jobna, Tehsil Tamkuhiraj, District Kushi Nagar. 4. Being the vigilant citizen as well as resident of the same village, petitioner informed respondent no.2 and respondent no.3 with regard to encroachment continuously carried out by respondent nos. 4 to 6. 5. In spite of informatory application/letter submitted before the offcial respondent which is appended to the petition and marked as Annexure No.2 dated 6.2.2023 but till today no action has been initiated by the respondent nos. 2 and 3 which creates cause of action in favour of the public at large, specially the villagers preferring the instant Public Interest Litigation on behalf of the majority of the residents of the Village Panchayat Sargatiya Karan Patti, Tappa - Dhuriya Vijaypur, Pargana Sidhuwa Jobna, Tehsil Tamkuhiraj, District Kushi Nagar. 6. 2 and 3 which creates cause of action in favour of the public at large, specially the villagers preferring the instant Public Interest Litigation on behalf of the majority of the residents of the Village Panchayat Sargatiya Karan Patti, Tappa - Dhuriya Vijaypur, Pargana Sidhuwa Jobna, Tehsil Tamkuhiraj, District Kushi Nagar. 6. Learned Standing Counsel as well as Shri Sudhir Bharti, learned counsel for the Gaon Sabha vehemently opposed the prayer as made in the petition and took the shelter of Section 67 of U.P. Revenue Code, 2006 (hereinafter referred to as the Code) is reproduced here below: 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 subsection (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. 7. The attention of the court has been sought over sub section (1) and (2) of Section 67 of the Code. Learned Additional Chief Standing Counsel emphasized that no motion can be initiated by the competent authority i.e, Assistant Collector in any manner whatsoever in respect of proceedings under Section 67 of the Code unless report of encroachment has been informed by Bhoomi Prabandhak Samiti or other authority or the Lekhpal concerned. Learned Additional Chief Standing Counsel also elaborated the word "other authority" is the Revenue Authority as defined under the definition clause of the U.P. Revenue Code, 2006. Learned Additional Chief Standing Counsel also elaborated the word "other authority" is the Revenue Authority as defined under the definition clause of the U.P. Revenue Code, 2006. He further demonstrated the provisions of Section 67(2) of the Code that only after receiving the information as defined under sub-section (1) of Section 67, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or mis-appropriated or any person is in occupation of any land referred to in that sub-section contravention of the provisions of the Code, only then he shall notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as well as for eviction from the said land as provided under sub-section (3) of Section 67 of the Code. 8. While seeking assistance over the precise issue which has been confined for consideration of this court that whether any information given by either majority of persons residing in the same area or by any person who is the beneficiary of the public utility land and the same has been encroached by some person in contravention with the procedure and title, whether on that information the Prescribed Authority i.e, Assistant Collector is entitled to proceed under Section 67 of the Code or not? 9. By bare perusal of Section 67 of the Code clearly speaks about the authorities on whose information the Assistant Collector after satisfaction issue notice to the person concerned who is alleged to be under the category of encroacher, it is defined that Bhoomi Prabandhak Samiti or other authority or the Lekhpal concerned "as the case may be" shall inform the Assistant Collector in the manner prescribed. 10. The words "as the case may be" mentioned under Section 67(1) of the Code substantiate the locus of any person or group of persons other than Bhoomi Prabandh Samity or other authority or the Lekhpal concerned with the word mentioned undrer Section 67(2) "or otherwise". 11. 10. The words "as the case may be" mentioned under Section 67(1) of the Code substantiate the locus of any person or group of persons other than Bhoomi Prabandh Samity or other authority or the Lekhpal concerned with the word mentioned undrer Section 67(2) "or otherwise". 11. The intention of the Legislature was not confined only to the three authorities as mentioned in Section 67 i.e, Bhoomi Prabandh Samity or other authority or the Lekhpal concerned, the Legislature while framing the code widen the scope of Section 67 while inserting the word "as the case may be" under Section 67(1) of the Code, "or otherwise" under Section 67(2) of the Code which clearly give the mandate in favour of citizens/residents of the concerned area where any encroachment has been carried out or being carried out which is directly affecting public at large and the same can be reported/informed to the authority concerned, whereupon the process of being satisfied and thereafter initiating the motion under Section 67 of the Code becomes mandatory. 12. The bare reading of Section 67 may not be confined only to the Bhoomi Prabandh Samity or other authority or the Lekhpal concerned for initiating any action against the alleged encroachers by the Assistant Collector, whereas it may be the duty of the Assistant Collector after receiving information with regard the encroachment over the public property/government land which is recorded in the Revenue Records to initiate the proper enquiry in the shape of general or physical inspection of the Revenue team, demarcation and thereafter proceedings in accordance with law as defined under Section 67 of the Code. 13. In the present case the suggestion made by Shri Rajesh Kumar Tewari, learned Additional Chief Standing Counsel and Shri Azad Rai, learned counsel for Gaon Sabha that the petitioner may raise their grievances by way of filing proper application under Section 26 of the U.P. Revenue Code. 14. The suggestion as made above may caste unnecessary burden over the common villagers who are residing their peaceful life and far away from the un-warranted litigations, moreover the duty of a watchful citizen and well wisher of the village has been performed by them who reported the matter of encroachment to respondent nos. 2 and 3 by way of making several intimation/representations. In pursuance of Section 67(1) and (2) of the Code, it was the duty of respondent nos. 2 and 3 by way of making several intimation/representations. In pursuance of Section 67(1) and (2) of the Code, it was the duty of respondent nos. 2 and 3 who informed the Assistant Collector of the concerned Tehsil for ensuring the alleged encroachment and if the same found true then the proceedings has to be initiated under Section 67 of the Code. 15. In view of the aforementioned facts and circumstances the law is crystal clear under Section 67 of the Code that after receiving information of encroachment the Assistant Collector has to only satisfy himself by way of conducting the physical inspection or as the case may be for initiating the proceedings under Section 67 of the Code. 16. In the instant matter the information is already given by the petitioner to the respondent nos. 2 and 3 but thereafter no action has been initiated under Section 67 of the Code, meaning thereby it is presumed that no further intimation or information has been forwarded from respondent nos. 2 and 3 to Assistant Collector, Tehsil Tamkuhiraj, District Kushi Nagar and as such considering the nature of the case which is directly concerned with the land and usage of public utility, the respondent no.2 is hereby directed to inform the Assistant Collector, Tehsil Tamkuhiraj, District Kushi Nagar with regard to the alleged encroachment carried out as mentioned in the representation dated 6.2.2023 submitted by the petitioner before respondent no. 2 for expediting the proceedings as warranted under Section 67 of the Code. If the encroachment whatsoever has been alleged in the petition is available to the satisfaction of the Assistant Collector, the proceedings under Section 67 of the Code may be initiated and concluded within six months from the date of recording the suggestion of Assistant Collector over the allegation as put forward by the petitioner through his representation. 17. In view the aforementioned facts, writ petition stands disposed of.