Allahabad High Court - Lucknow Bench Judgement

Allahabad High Court - Lucknow Bench Judgement

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JUDGEMENT HEADLINE : ..., A Wide Power Has Been Vested For The Enforcement Of An Order Under Section 122-B Of The Act By Ordering Eviction, ....offending Structure....
JUDGEMENT TITLE : Sri Israr Ahmad & 29 Ors. [ P.I.L. ] Vs. State Of U.P. Thru.Prin. Secy. Revenue Deptt. & 27 Ors. On 23/07/2014 By Allahabad High Court - Lucknow Bench
CASE NO : MISC. BENCH NO. 6506 OF 2014
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Devendra Kumar Upadhyaya,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Chief Justice's Court A.F.R.

Case :- MISC. BENCH No. - 6506 Of 2014

Petitioner :- Sri Israr Ahmad & 29 Ors. [ P.I.L. ]
Respondent :- State Of U.P. Thru.Prin. Secy. Revenue Deptt. & 27 Ors.
Counsel For Petitioner :- Dr. Sheelendra Kumar,D.P.S. Chauhan
Counsel For Respondent :- C.S.C.

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Devendra Kumar Upadhyaya,J.

The Subject Matter Of This Petition Is A Pond, Admeasuring About 0.3360 Hectare At Khasra No. 1266 In Village Meerpur, Pargana And Tahsil Ramnagar, District Barabanki.
The Petitioners Are Residents Of The Village. Their Complaint Was That The Area Of The Pond Was Wrongfully Occupied, Encroached Upon And Unlawful Constructions Were Raised. The Petitioners Have Represented The Matter To The District Magistrate. Eventually, A Writ Petition Was Filed Before This Court In Which An Order Was Passed By A Division Bench Of This Court On 3 December 2013 Directing That An Appropriate Action Should Be Taken In Accordance With Law. When A Contempt Petition Was Filed, A Learned Single Judge, By An Order Dated 4 April 2014, Noted That Orders For Eviction And For Repossession And Damages Had Already Been Passed Under Section 122B Of The U.P. Zamindari Abolition And Land Reforms Act, 19501 And Hence, Contempt Proceedings Were Dismissed On 4 April 2014.
The Petitioners Seek, In These Proceedings, To Challenge The Constitutional Validity Of The Provisions Of Section 117 And Section 122-B Of The Act. They Have Sought, In Addition, The Quashing Of Orders Passed Under Section 122-B On 25 March 2014 And A Mandamus To Protect The Sanctity Of The Pond As Well As To Restore The Public Pond For The Use And Enjoyment Of The Residents.
Having Regard To The Nature Of The Grievance, It Is Impossible To Comprehend Why The Petitioners Have Chosen To Raise A Constitutional Challenge.
Section 117 Of The Act, In Fact, Provides For The Vesting Of Certain Lands, Etc. In Gaon Sabhas And Other Local Authorities. Section 122-B Empowers The Assistant Collector To Take Action For Eviction And For Recovery Of Damages Where Any Property Vested In The Gaon Sabha Or Local Authorities Is Damaged Or Misappropriated.
The Contention Of The Petitioners Is That Section 122-B Of The Act Only Provides For Eviction And Not For The Removal Of The Offending Encroachment. That Would Not Be A Correct Reading Of The Provisions. Under Sub-section (3) Of Section 122-B, The Assistant Collector Is Empowered To Evict From The Land, Any Person Who Has Been Found To Have Damaged Or Misappropriated The Property Vested In A Gaon Sabha Or Local Authorities Or Where The Local Authority Or Gaon Sabha Are Entitled To Take Or Retain Possession Of Any Land Under The Act, Which Is Occupied Otherwise Than In Accordance With The Provisions Of The Act.
Rules 115-D And 115-E Of The U.P. Zamindari Abolition And Land Reforms Rules, 19522 Provide For A Manner In Which The Order Is To Be Enforced. Under Rule 115-C, It Is 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. Rule 115-D Empowers The Collector To Take Action Upon The Failure Of The Land Management Committee Or The Local Authority. Under The Provisions, The Collector Is Empowered To Call Upon The Person Concerned To Refrain From Causing Any 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 Exigency Of The Situation May Warrant. Rule 115-E Stipulates That Where Any Direction For Eviction Or For Recovery Of Compensation Has Been Issued By The Collector Under Sub-section (4) Of Section 122-B, An Order In The Statutory Form 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 The Revenue Court Mannual.
It Would, In Our View, Be A Patently Incorrect Reading Of The Statutory Provisions And The Rules To Contend That Section 122-B Provides Only For The Eviction Of A Person And Not For Taking Any Action Against The Encroachment Which Has Been Made On Property Which Has Vested In The Gaon Sabha Or A Local Authority. The Object And Purpose Of The Provision Is To Remedy The Damage Or Illegal Occupation. This Can Be Achieved Not Only By Eviction Of The Unauthorized Occupant But By Restitution Of The Property By Remedying The Damage Which Has Been Caused. Hence, A Wide Power Has Been Vested For The Enforcement Of An Order Under Section 122-B Of The Act By Ordering Eviction, Which Must Necessarily Include The Removal Of Any Offending Structure Or Construction On The Property. The Purpose Of Passing Such An Order Is The Removal Of An Illegal Encroachment, Eviction And Damages So That The Property Can Be Restored To Its Original Form To Compensate For The Public Harm Or Injury Which Has Been Caused By Wrongful Occupation.
In The Circumstances, The Entire Basis Of The Constitutional Challenge Is Lacking In Substance. We Also Have No Reason Or Justification To Entertain The Prayer For Quashing The Orders Dated 25 March 2014 Passed Under Section 122-B Of The Act. The Petitioners, In Fact, If The Grievance Is Properly Understood, Would Seek To Enforce The Orders, Since It Is The Public Interest Which The Petitioners Wish To Espouse.
The Learned Standing Counsel Has Informed The Court That In Certain Cases, Revisions Have Been Filed Against The Orders Under Section 122-B Of The Act. Where Revisions Have Been Filed, These Must Be Disposed Of With The Utmost Expedition Preferably Within A Period Of Three Months Of The Date Of Receipt Of A Certified Copy Of This Order. Where No Steps Have Been Taken By The Aggrieved Party To Challenge An Order Under Section 122-B, The Competent Authority Would Be Duty Bound To Enforce The Orders Under Section 122-B After Due Notice To All Concerned And After Verifying As To Whether The Order Has Been Stayed, Set Aside Or Modified In Revision Or By Any Higher Forum.
Since, In These Proceedings, We Have Not Made Any Observation On The Merits Of The Orders Under Section 122-B, It Is Not Necessary For The Court To Issue Notice To The Private Respondents Who Would Be Entitled To Remedies Which Are Available In Law To Challenge The Orders Which Have Been Passed Against Them.
In The Circumstances And With These Observations, We Dispose Of The Petition. There Shall Be No Order As To Costs

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