Allahabad High Court (28 May, 2014)
D.K. Upadhyaya, J.
The question of law and facts in all the writ petitions of this bunch being the same, we propose to decide all the writ petitions by the following common judgement and order.
2. The issue engaging attention of this Court in all these matters relate to unauthorized/illegal occupation of gaon sabha land and eviction therefrom. It has been noticed time and again by this Court and even by the authorities of the State Government that the land vested with the management of gaon sabha is often encroached upon by the individuals who use the same in their personal interest and for their personal benefits. The issue relating to such illegal occupation has, thus, engaged attention even of the Hon'ble Apex Court. Way back on 25th July, 2001 delivering the judgement in a case relating to encroachment of ponds, Hon'ble Apex Court in the case of Hinch Lal Tiwari vs Kamla Devi and others, reported in (2001) 6 SCC 496 has noticed that the material resources of the community like forests, tanks, ponds, hillocks and mountain etc. are nature's bounty and they maintain delicate ecological balance, hence they need to be protected for a proper and healthy environment to enable people to enjoy a quality life which is the essence of the guaranteed right under article 21 of the constitution of india. The Hon'ble Apex Court, thus, observed in the said judgement that appropriate vigil is the best protection against attempts to seek allotment in non-abadi sites. Underlining the importance of maintaining ponds, the Hon'ble Apex Court further observed that restoration of ponds, its development and maintenance as a recreational spot will be in the best interest of the villagers, which will help in maintaining ecological balance and protecting the environment. The Hon'ble Apex Court further observed that such measures must begin at the grass-root level.
3. Yet in another judgement in the case of Jagpal Singh and others vs State of Punjab and others, reported in AIR 2011 SC 1123, the Hon'ble Apex Court directed all the State Governments in the country to prepare schemes for eviction of illegal/unauthorized occupants of gaon sabha land meant for the common use of the villagers. The Hon'ble Apex Court further directed that for the aforesaid purposes, the Chief Secretaries of all the State Governments will do the needful, taking the help of other senior officers of the State Governments and further that the said scheme should provide for the speedy eviction of such illegal occupants, after giving the person concerned a show cause notice and a brief hearing.
4. In compliance of the aforesaid judgements of Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), the State Government issued Government Order on 23.03.2011 issuing directions to all the Divisional Commissioners, all the District Magistrates and Commissioner and Secretary, Board of Revenue, U.P. Lucknow to the effect that the provisions contained in section 122-b of u.p.z.a & l.r act provides adequate provision for the protection of such properties/land vested in gaon sabha or in a local authority and that appropriate proceedings be initiated to take action under section 122-b (1) of the said Act on a report submitted by the gaon sabha or by the local authority concerned. The said Government Order dated 23.03.2011 further provides that appropriate authority is empowered to initiate the proceedings for eviction under Section 122-B (2) of the Act by taking suo-motu cognizance of the matters. The Government Order further issued various directions for removal of the encroachment from the chak-roads, drains or from other public utility land in case any complaint in that regard is received. The Government Order further directs the authorities concerned to dispose of such matters or such complaints relating to unauthorized occupation within a month and thereafter to take help of the police administration to remove the illegal encroachment.
5. The Government Order dated 23.03.2011 further referring to various Government Orders issued in respect of the procedure to be adopted and action to be taken for eviction of unauthorized occupants from the public utility land, has issued directions to remove the illegal occupation from the gaon sabha land and from the ponds etc. by identifying the illegal occupations which have taken place from 1st January, 2011. The State Government has directed the authorities that after identifying the illegal encroachments, the eviction proceedings be concluded expeditiously and report be submitted of such action taken to the District Level Task Force constituted under the Chairmanship of District Magistrate. The District Magistrate has been required to submit his report to the Commissioner and Secretary of the Board of Revenue.
6. In Writ Petition No. 6472 (MB) of 2012, an order was passed by this Court on 07.08.2012 taking note of the judgments in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), directing the Chief Secretary, Government of Uttar Pradesh to constitute a committee consisting of a Senior Bureaucrat, a Senior Police Officer and Legal Remembrancer or his nominee to publicize the letter/order dated 16.01.2009 issued by the Commissioner and Secretary, Board of Revenue to all the District Collectors. This Court by the said order further directed that the letter/order dated 16.01.2009 shall be publicized by all means on regular basis for two months in order to invite complaints from the members of all Gaon Sabhas throughout State of Uttar Pradesh and upon receipt of such complaints, immediate steps shall be taken to get such land freed from encroachment and illegal occupation.
7. In compliance of the order dated 07.08.2012, passed by this Court, a Government Order was issued on 10.09.2012 directing all the Divisional Commissioners and District Magistrates of State of Uttar Pradesh to publicize the constitution of the committee which was constituted in compliance of the order dated 07.08.2012 by the State Government, vide Office Memorandum dated 06.09.2012. The said committee comprises of Principal Secretary, Revenue as its Chairman, Commissioner and Secretary, Board of Revenue, U.P., Lucknow, a member to be nominated by the Director General of Police not below the rank of Inspector General of Police and a member to be nominated by the Legal Remembrancer not below the rank of Special Secretary and Additional Legal Rememberancer as its members.
8. In compliance of the order dated 07.08.2012 and the orders passed by the Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), a Divisional Level Committee has also been constituted by the State Government by means of Office Memorandum dated 21.09.2012. The said committee comprises of Divisional Commissioner as its Chairman and concerned District Magistrate, concerned Deputy Inspector General of Police/Senior Superintendent of Police, Additional Commissioner (Administration) and Deputy Director (Information) as its members. The State Government also constituted District Level Committees in all the districts by means of the Office Memorandum dated 21.09.2012 under the Chairmanship of the concerned District Magistrate. The said committee comprises of the District Magistrate, Senior Superintendent of Police/Superintendent of Police, Additional District Magistrate (Administration)/ Additional District Magistrate (Finance and Revenue), Sub-Divisional Officers, Deputy Superintendent of Police and District Information Officer.
9. It appears that thereafter an attempt by the State Government was made to publicize the constitution of the Committee. In compliance of another order dated 05.03.2013 passed in Writ Petition No. 6472 (M/B) of 2012, a Committee was constituted by the State Government in the department of urban development for taking action for removal of illegal occupation of tanks, qabristans etc. lying within the limits of various urban local bodies. The said committee constituted by means of Office Memorandum dated 15.05.2013 comprises of the concerned District Magistrate as its Chairman, Nagar Ayukta, concerned Executive Officers of the Nagar Palika Parishad and Nagar Panchayat, concerned Additional District Magistrate (Administration/City), concerned Sub-Divisional Magistrate, Senior Superintendent of Police/Superintendent of Police and District Information Officer as its members. The Chief Secretary of the State Government issued another order on 15.05.2013 directing the authorities concerned to take action for removal of illegal occupation from the land of talabs, grazing grounds and qabristans.
10. The direction issued by this Court in Writ Petition No. 6472 (M/B) of 2012 for constitution of the Committees and also for ensuring the action for eviction of unauthorized occupants are to be acted upon by the State Government in accordance with law which holds fields.
11. In compliance of judgement of Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), the State Government had issued a detailed order on 23.03.2011 directing all the authorities concerned to take appropriate steps for removal of illegal encroachment from various public utility land, both lying in the villages as well as within the municipal limits of the local bodies concerned. The said Government Order makes a mention of the provision contained in section 122-b of u.p.z.a.& l.r. act.
12. Having heard the learned counsels appearing for the petitioners and learned counsel appearing for the State, we are of the opinion that section 122-b of u.p.z.a. & L.R Act read with certain provisions in the Rules framed under the said Act contains a complete statutory scheme empowering the State authorities to take appropriate steps for eviction of unauthorized occupants from the public utility land belonging to the gaon sabhas or the local bodies. section 122-b (1) of u.p.z.a.& l.r. act provides that it is the duty of the Land Management Committee or local authority concerned to inform the Assistant Collector concerned of any damage/misappropriation of any property vested in a gaon sabha or a local authority. The Land Management Committee or local authority, as the case may be, has been entrusted with the duty to furnish information to the Assistant Collector even in case where any gaon sabha/local authority is entitled to take or retain possession of any land under the provisions of U.P.Z.A & L.R.Act.
13. Sub-section 2 of Section 122-B empowers the Assistant Collector to issue notice to the person concerned if he satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or is in illegal occupation of any person. The said notice is required to be issued by the Assistant Collector on information received under sub-section (1) or otherwise.
section 122-b (1) and (2) are being quoted below:-
"122-B. Powers of the Land Management Committee and the Collector-(1) Where any property vested under the provisions of this Acrt in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or a 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 misappropirated or any person 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."
14. We may emphasize that the scheme contained in section 122-b (1) and (2) not only empowers the Assistant Collector to act upon the information received from the Land Management Committee or from the local authority concerned but it empowers the Assistant Collector to act on the information received otherwise as well. The occurrence of word 'otherwise' in sub-section (2) of section 122-b widens the source of information on which the Assistant Collector can act and take appropriate proceedings for eviction of unauthorized/illegal occupants. The initiation of proceedings by the Assistant Collector is not confined only on the information received from the Land Management committee or local authority concerned but the Assistant Collector can act and initiate proceedings on an information received by him 'otherwise' as well. The word 'otherwise' occurring in sub-section (2) of section 122-b of the Act entitles even a third person i.e. a person other than the land management committee or a local authority to furnish information about unauthorized occupation of the gaon sabha land to the Assistant Collector, who on being satisfied that property has been damaged/misappropriated or is being illegally occupied, is duty bound to issue notice to such person.
15. It is common experience that for seeking remedy in respect of illegal occupation of gaon sabaha land and other public utility land the person concerned usually rushes to this Court by way of filing writ petitions without taking recourse to the remedy available undersub-section (2) of section 122-b of the Act.
16. As observed above, the Assistant Collector can proceed to initiate the proceedings for removal of illegal occupation of gaon sabha land or the land belonging to a local authority not only on the report to the said effect being submitted to him by the land management committee or local authority alone but even on application made or information given to him 'otherwise', that is to say that said proceeding has to be initiated by the Assistant Collector on an application made by a person other than the land management committee or the local authority also. In our considered opinion, sub-section (2) of section 122-b enables and entitles the third person other than the land management committee or local authority, to initiate proceeding for eviction from unauthorized occupation of gaon sabha land by moving an application for furnishing information undersub-section (2) of section 122-b of the Act.
17. Sub-section (3) of Section 122-B of the Act states that if the cause shown on issuance of show cause notice, time for which will not exceed 30 days, is not found sufficient or the person fails to show cause, the Assistant Collector will direct such a person to be evicted from the land and for the said purpose he may use or cause to be used such force as may be necessary and further that Assistant Collector may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. Thus, sub-sections (1) (2) and (3) of Section 122-B of the Act not only contain appropriate and adequate provisions and mechanism for ensuring eviction of illegal occupation from gaon sabha land but also empower the Assistant Collector to use force for such eviction. It also empowers the Assistant Collector to recover the amount of compensation for damage or wrongful occupation or misappropriation as arrears of land revenue.
18. Apart from the provisions contained in section 122-b (1) (2) and (3), rule 115-cframed under U.P.Z.A & L.R.Act cast duty on the land management committee to preserve or protect the properties vested in gaon sabha from damage, misappropriation and wrongful occupation. sub-rule (2) of rule 115-c further mandates that Chairman or any member or the Secretary of the land management committee shall report all cases of damage to or misappropriation of wrongful occupation of gaon sabha property to the Collector praying for recovery of compensation for damage or misappropriation of the property or illegal possession of the land together with damages for wrongful occupation thereof. sub-rule (3) of rule 115-c also directs as a duty to the Lekhpal to report to the Collector through Tehsildar of all cases of wrongful occupation of the gaon sabha properties as soon as the same comes to his notice and in any case after conclusion of Kharif and Rabi Partal every year. The Tehsildar, in sub-rule (4) of rule 115-c has also been cast with the duty to satisfy himself in the month of May every year that each Lekhpal has submitted all such reports.
19. Rule 115-C of U.P.Z.A. & L.R Rules, 1952 reads as under:-
"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 of wrongful occupation of the property referred to in sub-rule (1) to the Collector praying for recovery of compensations 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 damages to and misappropriation of the 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 himsel 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."
The provision of rule 115-d of U.P.Z.A. & L.R Rules, 1952 is also worth noticing, which runs as under:-
"115-D (1) Where the Land Management Committee or the local authority, as the case may be, failes to take action in accordance with section 122-B, the Collector shall-
(a) on an application of the Chairman, Member of 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 tosub-rule (5) of rule 115-c; or
(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 appropriation, to repair the damages, to 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 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 thereor;
(b) full address along with father's name of the person responsible for the damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or miappropriation, class of soil of the plot numbers involved nad hereditary rates applicable to them; and
(d) value of the property damaged or misapprpriation calculated at the prevailing market rate in the locality."
20. Thus, in case of failure by the land management committee or local authority to take action in accordance with Section 112-B, the Collector is duty bound to call upon the person concerned by issuing notice to refrain for causing damage or misappropriation, or to repair the damage, or to make good the loss or remove wrongful occupation and to pay damages in case of illegal occupation. The Collector has been empowered to act under Rule 115-D on an application by the Chairman and Member of Secretary of the Land Management Committee or on a report made by the Lekhpal under sub-rule (3) of rule 115-c, or on the report of local authority concerned or its official or on facts otherwise coming to his notice. Thus, the provision contained in Rule 115-D (d) is wide enough to permit any person to move application to the Collector for removal of unauthorized occupation from the gaon sabha land.
21. On a combined reading of section 122-b, rule 115-c and rule 115-d, we have no hesitation to hold that U.P.Z.A & L.R. Act and Rules contain an adequate and appropriate procedure and statutory mechanism to take action not only to evict the illegal occupants from gaon sabha land but also to refrain any person from misappropriation and wrongful occupation of all gaon sabha lands.
22. Even when the State Legislature has purposely enabled the district authorities by empowering them statutorily to take appropriate action for removal of wrongful occupation and refraining the persons from wrongful occupation of gaon sabha land, in action on the part of the district revenue authorities appears to be compelling aggrieved persons to prefer writ petitions under article 226 of the constitution of india before this Court. This makes it clear that district authorities are not acting in accordance with the aforesaid quoted provisions which is resulting in ever increasing reported cases of unlawful occupation of gaon sabha land. Though, in compliance of the orders passed in various cases by this Court and also by the Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), State Government has issued various orders evolving further mechanism over and above the provisions contained in U.P.Z.A.& L.R. Act and Rules framed thereunder for eviction of unauthorized/illegal occupation from gaon sabha land, we are not hesitant to observe that the mechanism provided in the Government Orders referred to hereinabove and in the Act and the Rules are not being followed and adhered to. The statutory duty cast on various revenue authorities of the district needs to be performed in all seriousness to enable the residents of the village concerned to enjoy the public utility land such as ponds, grazing grounds, chak roads, qabristans and khalians etc.
23. We have also come across in various cases, the fact that even where after conclusion of the proceedings under section 122-b of u.p.z.a & L.R. Act, the orders for eviction and recovery of compensation for damages or misappropriation of gaon sabha land have been passed by the authorities concerned, the said orders are lying unattended and the same are not being executed. We cannot appreciate such state of affairs.
24. In view of the discussions made and reasons given above, the instant bunch of writ petitions is disposed of in the following terms:-
1. The District Collectors and other revenue authorities of the district shall ensure that the statutory duty cast on the Land Management Committee and the local authority undersection 122-b (1) of u.p.z.a. & l.r. act and rule 115-c (1) and (2) of the U.P.Z.A & L.R. Rules is attended to in all seriousness.
2. The District Collectors shall ensure that Lekhpal of the area concerned attends his duty cast on him under sub-rule (3) of rule 115-c of u.p.z.a & L.R. Rules, inasmuch as, the Lekhpal will report to the Collector through Tehsildar all cases of wrongful occupation of damage to; or misappropriation of the wrongful occupation of the gaon sabha property as soon as they come to his notice and in any case after the conclusion of Kharif and Rabi Partal every year.
3. The District Collectors shall also ensure that Tehsildar of the area concerned shall satisfy himself in the month of May every year that each Lekhpal has submitted reports as envisaged under sub-rule (3) of rule 115-c of u.p.z.a & L.R. Rules.
4. The District Collectors are also directed to take action in accordance with theprovision of rule 115-d in case of failure on the part of Land Management Committee or the local authority, as the case may be.
5. The Assistant Collector, within whose jurisdiction any illegal occupation or damage or misappropriation of gaon sabha land is reported, shall immediately institute the proceedings and conclude the same in accordance with law. The Assistant Collector (who in accordance with para 315 of Revenue Manual is the Tehsildar of the area concerned) shall not only institute the proceedings on information received/application made undersection 122-b (1) of u.p.z.a & L.R. Act by Land Management Committee or the local authority concerned but will also act on an application moved otherwise by any person alleging therein illegal occupation on and damage caused to gaon sabha land and will conclude the same in accordance with law with expedition.
6. The District Collectors are also directed to ensure that once the order for eviction or payment of compensation as damages is passed, the same is executed at the earliest, in appropriate cases by using such force as may be necessary. Realization of the amount of compensation for damage, misappropriation or wrongful occupation of gaon sabha land shall also be made from the person concerned as arrears of land revenue expeditiously.
7. So far as the illegal possession of the housing sites alloted to the individuals is concerned, we may refer to the provision contained in Section 122-D, which provides a complete procedure for restoration of possession of land alloted to any person for the purposes of building of house and on such land any person other than the allottee is in occupation. Under Section 122-D, as well, the Assistant Collector has been empowered to take action for restoration of the possession to the allottee of the land allotted for housing purpose, if the same is in illegal occupation of any other person.
8. sub-section (2) of section 122-d of u.p. Z.A. & L.R. Act provides that a person having been once evicted under section 122-d (1) is liable to be punished with imprisonment for a term which may extend to two years and which shall not be less than three months and also with fine which may extend to three thousand rupees. Thus, in case any person re-occupies the land allotted as housing site, after once being evicted, he can be proceeded against by launching criminal prosecution under Section 122-D (2) of the Act. The District Collectors shall ensure that besides eviction proceedings under Section 122-D, criminal proceedings are also instituted against such persons.
25. In view of aforesaid observations/directions, all the writ petitions are finally disposed of with a further direction to the District Collectors and other revenue authorities of the district to take appropriate action and to act in accordance with the observations made in this judgment and the provisions contained in U.P. Z.A. & L.R. Act and the Rules framed thereunder. The mechanism evolved under the Government Orders referred to hereinabove for monitoring the eviction proceedings and implementation of the orders of eviction shall continue.
26. There shall be no orders as to costs.
Let a certified copy of this order be furnished by the office free of charge to the learned Chief Standing Counsel, who shall transmit the same to the Chief Secretary and Principal Secretary (Revenue), Government of Uttar Pradesh, Commissioner-cum-Secretary, Board of Revenue, Uttar Pradesh, Lucknow and all the Divisional Commissioners and District Collectors in the State.
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