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2023 DIGILAW 2228 (ALL)

Kanhaiya Lal v. State of U. P.

2023-09-27

MANISH KUMAR NIGAM

body2023
JUDGMENT : Manish Kumar Nigam, J. Heard learned Counsel for the parties and perused the record. 2. This Public Interest Litigation has been filed for issuance of a writ, order or direction in the nature of mandamus, directing the respondent-authorities to take appropriate action in view of Section 67 of the U.P. Revenue Code, 2006 for removal of illegal encroachment from the plot Nos. 163, 167, which are recorded as ''Garaha'' and plot No. 165, which is reserved for ''Holika Dahan'' respectively situated in Village-Hamjapur, Tehsil-Sadar, District-Jaunpur and to restore the same in its original form within a stipulated period as may be fixed by this Hon'ble Court. 3. Brief facts of the case are that the petitioner claims himself to be a social worker and resident of Village-Hamjapur, Tehsil-Sadar, Districtt-Jaunpur. His grievance is that during the consolidation proceedings, Gata Nos. 163 and 167 are recorded as Garaha (pond) and Gata No. 165 is reserved for Holika Dahan. The aforesaid land of Gata Nos. 163, 167 and 165 have been encroached by respondent No. 9 to 15. It is further claimed that in order to get the encroachments removed by the respondent Nos. 9 to 15, application as well as representation have been moved by the petitioner to the Chief Minister, Uttar Pradesh, concerned S.D.M and concerned Tehsildar. It has been further claimed that the local Lekhpal in collusion with the private respondents has submitted a false and fake report before the authorities. It has also been stated that the respondent authorities are empowered under Section 67 of the U.P. Revenue Code, 2006 to get the illegal encroachment removed and, therefore, the present PIL has been filed for the relief mentioned above. 4. Contention of learned Counsel for the petitioner is that despite complaint being made with the authorities concerned, the respondents have failed to remove the encroachment made by respondent Nos. 9 to 15 from the public utility land. 5. Per contra, learned Standing Counsel contended that the petitioner can approach the authority by filing an application under Section 67 of the U.P. Revenue Code, 2006, which provides the statutory remedy to the petitioner and the present PIL as framed may not be entertained for the aforesaid reason. 6. Considering the rival submissions, it is useful to look into the provisions of U.P. Revenue Code, 2006. 6. Considering the rival submissions, it is useful to look into the provisions of U.P. Revenue Code, 2006. In this regard, Section 67 of the Revenue Code, 2006 is quoted as under : 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 sub-section (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 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. (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 provisions of this Code, and subject to the provisions of this section every order of the Sub-Divisional Officer 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. Explanation.-For the purposes of this section, the word ''land'' shall include the trees and building standing thereon. 7. Rule 66 and 67 of the U.P. Revenue Code, 2006 provides for the detailed procedure for inquiry as well as procedure for removal of encroachments over the public utility land of the Gaon Sabha. Rules 66 and 67 of the U.P. Revenue Code, 2006 are quoted as under : ''66. Information to Assistant Collector (Section 67).-The information to Assistant Collector required by Section 67(1) shall be submitted by the Chairman or any member or the Secretary of the Land Management Committee, or any officer of the Local Authority concerned in R.C. Form-19. 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 showing 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.'' 8. Rule 67 of U.P. Revenue Code Rules, 2016 as quoted above provides that the Assistant Collector may make inquiry on receipt of the information under Rule 66 of on facts otherwise coming to his knowledge and proceed thereafter in accordance with the procedure prescribed in sub-Rules of he Rule 67. 9. In view of the aforenoted provisions, the jurisdiction to prevent damage, misappropriation and wrongful occupation of gram panchayat property vests in the authority described under Section 67 of the Code. Consequently, the appropriate remedy available to the petitioner was to invoke the provisions of Section 67 of the Code or under the erstwhile provisions of Section 122B of the U.P.Z.A. & L.R. Act. 10. It is also the statutory duty of the authority under the Code to take action on receipt of information that any property entrusted or deemed to be entrusted under the Provisions of the 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 the Code and such land is occupied otherwise than in accordance with the said provisions. Statutory duty has been cast upon Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, to inform the Assistant Collector concerned in the manner prescribed. 11. Statutory duty has been cast upon Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, to inform the Assistant Collector concerned in the manner prescribed. 11. On the receipt of information under sub-section(1) or otherwise, and on being 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, the Assistant Collector 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. 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 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 misappropriation or for wrongful occupation as the case may be, be recovered from such person as arrears of land revenue. Sub-section 5 of the Section 67 of the Code provides a remedy to any person who is aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may be within thirty days from the date of such order, prefer an appeal to the Collector. Thus, a complete machinery for eviction and to prevent damage, misappropriation and wrongful occupation of gram panchayat property has been provided under Section 67 of the Code read with Rule 67 of the Rules, 2016. 12. Section 206 of the Code provides that notwithstanding anything contained in any law for the time in force, but subject to the provisions of the Code, no Civil Court shall entertain any suit, application or proceeding to obtain a decision or order on any matter which the State Government, the Board, any Revenue Court or Revenue Officer is, by or under this Code, empowered to determine, decide or dispose of. Clause (a) of the sub-section 2 of Section 206 of the Code further provides that without prejudice to the generality of the provisions of sub-section (10) and save as otherwise expressly provided by or under this Code, no Civil Court shall exercise jurisdiction over any of the matter specified in the second Schedule. Clause (b) of sub-section 2 of the Code further provides that no Court other than the revenue Court or the revenue officer specified in the column 3 of the third schedule shall entertain any suit, application or proceeding specified in column 3 thereof. Section 67 of the Code finds mention in the third schedule and the competent authority specified is Assistant Collector against whose order the first appeal would lie to the Collector. 13. In view of the clear provisions as aforenoted, the Assistant Collector concerned has exclusive jurisdiction to exercise power to prevent damage, misappropriation and wrongful occupation of gram panchayat property. 14. Learned Standing Counsel further contended that under Rule 67, the petitioner can move an appropriate application before the Assistant Collector informing him about the illegal encroachment made by the private persons over the public utility land. 15. Experience shows that large number of writ petitions are filed everyday in this Court for somewhat similar relief, regarding demarcation of boundaries of agricultural fields, for issuance of a mandamus restraining the private respondents from interfering in their possession, restraining the private respondents not to alienate the immovable property in favour of the third party and for other similar relieves. The U.P. Revenue Code, 2006 (U.P. Act No. 8 of 2012) deals with all sorts of dispute relating to land. Section 230 of the Code repealed as many as 32 enactments mentioned in List-A of First Schedule including the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956, The United Provinces Board of Revenue Act, 1922 and The U.P. Land Revenue Act, 1901 etc. 16. The Code, 2006 is designed to deal with the grievance relating to land tenures and land revenue and incidental matters. Chapter-II of the Code, 2006 provides that there would be a division of the State in which there would be revenue areas. Chapter III deals with the Board of Revenue its jurisdiction and various revenue officers. Chapter-IV deals with boundary and boundary marks. Chapter-II of the Code, 2006 provides that there would be a division of the State in which there would be revenue areas. Chapter III deals with the Board of Revenue its jurisdiction and various revenue officers. Chapter-IV deals with boundary and boundary marks. Chapter-V provides the scheme for maintenance of village records; Chapter-VI provides revision of village records; Chapter-VII about ownership of land other properties; Chapter-VIII provides management of land and other properties by Gram Panchayat or other local authorities; Chapter-IX deals with tenures; Chapter-X provides Government Lessees; Chapter XI and XII deals with assessment of land revenue and collection of that and Chapter-XIII deals with judicial procedure of the Revenue Courts. 17. A bird's-eye view of the U.P. Revenue Code, 2006 shows that the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and the U.P. Zamindari Abolition and Land Reforms Rules, 1952 have been incorporated in this Act and various procedures have been simplified. We find that without taking recourse to the remedy available under the Code, 2006 a large number of writ petitions are filed directly in this Court seeking reliefs under extraordinary jurisdiction of this Court under Article 226/227 of the Constitution. 18. The jurisdiction of the High Court under Article 226 of the Constitution of India is an extraordinary remedy, to be not invoked or allowed to be invoked ordinarily, as is found being done increasingly, leaving very little time for the High Courts to deal under Article 226 with issues really deserving consideration thereunder. Supreme Court, as far back as in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 and Nain Sukh Das v. The State of Uttar Pradesh, AIR 1953 SC 384 , held that prerogative writs are extraordinary remedies intended to be applied in exceptional cases in which the ordinary legal remedies are not adequate but in the last over half century the said principle appears to have been forgotten, with the writ remedy being considered as a cure for all ordinary ailments also and for which the ordinary legal remedies under the civil law are adequate. The same has resulted in the High Courts being flooded with writ petitions, the disposal whereof axiomatically is found to be taking, in most cases, as much time as the disposal of an ordinary civil lis, and which has resulted in the High Courts facing difficulty in providing immediate relief even in deserving cases in writ jurisdiction and/or being left with little time to ponder over the important constitutional issues coming before it in the writ jurisdiction. In my humble view, a time has thus come for the High Courts to send out a clear message of the writ remedy being an extraordinary remedy not available as an alternative to the remedy already available under the civil and general laws. 19. Recently the Supreme Court in the case of Subrata Roy Sahara v. Union of India and others, (2014) 8 SCC 470 , has again occasioned to consider the matter of frivolous petitions and need to curb them with firm hands. The Supreme Court has also held that exemplary costs should be imposed. ''191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a ''Code of Compulsory Costs''. 192. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a ''Code of Compulsory Costs''. 192. We should not be taken to have suggested that the cost of litigation should be enhanced. It is not our suggestion that the Court fee or other litigation related costs should be raised. Access to justice and related costs should be as free and as low as possible. What is sought to be redressed is a habituation to press illegitimate claims. This practice and pattern is so rampant that in most cases disputes which ought to have been settled in no time at all before the first Court of incidence are prolonged endlessly for years and years and from Court to Court up to the highest Court. 193. This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly up to the highest Court just because of the lack of responsibility to take decisions. So much so that we have started to entertain the impression that all administrative and executive decision-making are being left to Courts just for that reason. In private litigation as well, the litigant concerned would continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before. The effort is not to discourage a litigant in whose perception his cause is fair and legitimate. The effort is only to introduce consequences if the litigant's perception was incorrect and if his cause is found to be not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant no matter how irresponsible he is suffers no consequences. Every litigant, therefore, likes to take a chance even when counsel's advice is otherwise. 20. In the present case itself, the petitioner without taking recourse to the remedy under the Code, 2006 has approached this Court for a direction to the respondent-authorities to get the illegal encroachments made by the respondent Nos. 5 to 9 removed. 21. I find that the present writ petition is misconceived and ill-advised. 20. In the present case itself, the petitioner without taking recourse to the remedy under the Code, 2006 has approached this Court for a direction to the respondent-authorities to get the illegal encroachments made by the respondent Nos. 5 to 9 removed. 21. I find that the present writ petition is misconceived and ill-advised. Instead of moving an application under the Code, 2006, which was appropriate remedy, the petitioner has filed the present writ petition, which in my view is an abuse of process of law. This Court is overburden with large number of case and is precious judicial time is wasted in such type of writ petitions, which are filed in large numbers, wherein the petitioners could have obtain relief or redressed their grievances by making an appropriate application under the provisions of U.P. Revenue Code, 2006. In this regard, I am supported by judgment of this Court in Shravan Kumar Yadav v. State of U.P. and 15 others, 2022 (147) RD 373, as well as judgment and order dated 24.11.2022 passed in Public Interest Litigation No. 1892 of 2022 (Pankaj Devi v. State of U.P. and others) 22. For all the reasons mentioned above, I find that this writ petition is an abuse of process of law and meritless. Accordingly, the writ petition is dismissed with liberty to the petitioner to approach the competent authority by filing an application under Section 67 of the U.P. Revenue Code, 2006. In case, such an application is filed by the petitioner, the same shall be decided in accordance with law after providing opportunity of hearing to all the concerned parties. It is clarified that this Court has not adjudicated upon the merits of the claim as raised by the petitioner in the present Public Interest Litigation.