# Asgar v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Writ C No. 4773 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asgar-v-state-of-u-p-ors-47321
- **Pages:** 5

## Headnote

Civil Law - U.P. Revenue Code (8 of 2012)
- Sections 67 & 67 A- Power to prevent
wrongful occupation of Gram Panchayat
properties - Certain house sites to be
settled with existing owners thereof -
 proceedings
u/s
67
A
should
be
registered immediately if defence in that
regard is made in proceedings u/s 67 -
thereafter both proceedings u/s 67 & 67 A
of the Code, should be consolidated and
8 All. Asgar Vs. State of U.P. & Ors.
861
heard together & decided by the same
court - Courts to decide the eligibility of
the noticee for protection u/s 67 A in case
such defence is tendered by the notice
(Para 7, 8, 9, 11)
Petitioner contended that his house was
standing on the disputed parcel of land and he
was entitled to the protection of Section 67 A
Code - trial court did not return any finding on
this aspect - appellate court misdirected that it
was open to the petitioner to take out a fresh
proceeding under law - Held - No fresh
proceedings are liable to be taken out - matter
remitted for fresh determination (Para 10, 13)
(E-4)

## Text

860 INDIAN LAW REPORTS ALLAHABAD SERIES
may notice a decision of the Apex Court in
Surjit Singh and others Versus Harbans
Singh and others, (1995) 6 SCC 50 where
it was held that on the basis of an
assignment made in violation of an
injunction order, no impleadment should be
allowed as recognition of such assignment
would defeat the ends of justice and the
prevalent public policy. Similar view has
been expressed in Jehal Tanti and others
Versus Nageshwar Singh, (2013) 14 SCC
689 and Vidur Impex and Traders Pvt.
Ltd. & Others Versus Toshi Apartments
Pvt Ltd., (2012) 8 SCC 384, where it was
observed that sale deed executed in the
teeth of order of injunction would be
unlawful and no valid title would pass.

8. The submission of the learned
counsel for the petitioner that the interim
injunction merged in the final order,
consequent
to
dismissal
of
the
Securitisation Application, therefore, now,
there are no fetters in recognition of the
auction cannot be accepted for two reasons,
firstly, because that auction took place
when there was restraint order in operation
and, therefore, according recognition to
such an unlawful act would defeat the ends
of justice and the prevalent public policy,
and, secondly, the purpose of an auction,
which is to discover the best price, might
not be achieved as people in the know of
injunction might have abstained from
participating in the auction. Hence, the
prayer of the petitioner to quash the
cancellation status of the auction and to
provide possession to the petitioner after
confirming the auction cannot be accepted
and is, accordingly, rejected.

9. The alternative oral prayer of the
petitioner that the money deposited by him
be returned to him, if the auction was
rendered void, is acceptable.

10. This writ petition is therefore
disposed off by giving liberty to the
petitioner to seek refund of the money
deposited by it without prejudice to his
right to participate in a fresh auction that
might take place of the property concerned.
If the petitioner seeks refund of the money
deposited by it, the same shall be returned
to the petitioner forthwith, subject to
necessary verification. The return of the
money shall be without prejudice to the
right of the petitioner to participate in fresh
auction of the property in accordance with
law.

11. The writ petition is disposed off.
----------
(2021)08ILR A860
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 4773 of 2021

Asgar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Yogendra Pal Singh

Counsel for the Respondents:
C.S.C., Sri Kaushal Kishore Mani

Civil Law - U.P. Revenue Code (8 of 2012)
- Sections 67 & 67 A- Power to prevent
wrongful occupation of Gram Panchayat
properties - Certain house sites to be
settled with existing owners thereof -
 proceedings
u/s
67
A
should
be
registered immediately if defence in that
regard is made in proceedings u/s 67 -
thereafter both proceedings u/s 67 & 67 A
of the Code, should be consolidated and
8 All. Asgar Vs. State of U.P. & Ors.
861
heard together & decided by the same
court - Courts to decide the eligibility of
the noticee for protection u/s 67 A in case
such defence is tendered by the notice
(Para 7, 8, 9, 11)
Petitioner contended that his house was
standing on the disputed parcel of land and he
was entitled to the protection of Section 67 A
Code - trial court did not return any finding on
this aspect - appellate court misdirected that it
was open to the petitioner to take out a fresh
proceeding under law - Held - No fresh
proceedings are liable to be taken out - matter
remitted for fresh determination (Para 10, 13)
(E-4)
(Delivered by Hon'ble Ajay Bhanot, J.)

1. By the impugned order dated
30.10.2019 the Tehsildar/ Assistant Collector
First Division has lodged the proceedings
under Section 67 of the U.P. Revenue Code,
2006 (hereinafter referred to as 'Code'.) has
directed the eviction of the petitioner from
disputed parcel of land after imposing
damages and other charges. The petitioner
fared no better before the appellate court
which by the impugned order dated
14.10.2020 has affirmed the judgment of the
court of first instance and rejected his appeal.

2. The proceedings for eviction of the
petitioner under Section 67 of the Code for
illegally encroaching upon gram panchayat
land were taken out by issuance of a show
cause notice and registering Case No. 59 of
2019
Computerized
Case
No.
201909550101867. The petitioner tendered a
reply to the show cause notice stating that he
had erected his house on the disputed parcel
of land. It is the sole dwelling unit of his
family. Similar objections were taken by the
petitioner before the appellate authority in the
memo of appeal. The petitioner claimed that
he was was entitled to the benefit of Section
67 (a) Code.

3. Adverting to the eligibility of the
petitioner for protection under Section 67 (a)
of the Code and the rights purportedly
accruing to him thereunder, the appellate
court held that it was open to the petitioner to
take out proceedings under Section 67 (a) of
the Code for grant of appropriate relief as
claimed by him. After noticing the aforesaid
facts, the appellate court agreed with the
judgment of the trial court and dismissed the
appeal. The trial court did not return any
finding on this issue.

4. Section 67 as well as Section 67(a)
of the Code reflect the composite intent of
legislature. The legislature by enacting the
aforesaid provision has recognized the
vulnerability of the State land to illegal
encroachment and the need for urgent
corrective measures. Simultaneously the
legislature has also acknowledged the
reality of a large number of persons who
have erected dwelling units on lands which
are not reserved for any public purposes.
The legislature has protected their rights in
the manner prescribed in the provision. For
ease of reference the provisions are
extracted hereunder:

"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
862 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 subsection (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.

Explanation. - For the purposes
of this section, the word 'land' shall include
the trees and buildings standing thereon

67-A Certain house sites to be
settled with existing owners thereof.- (1)
If any person referred to in sub-section
(1) of section 64 has built a house on any
land referred to in section 63 of this
Code, not being land reserved for any
public purpose, and such house exits on
the November 29, 2012, the site of such
house shall be held by the owner of the
house on such terms and conditions as
may be prescribed.

(2) Where any person referred
to in sub-section (1) of section 64, has
built a house on any land held by a
tenure holder (not being a government
lessee)
and
such
house
exits
on
November 29, 2000, the site of such
house,
notwithstanding
anything
contained in this Code, be deemed to be
settled with the owner of such house by
the tenure holder on such terms and
conditions as may be prescribed.

Explanation. - For the purpose
of sub-section (2), a house existing on
November 29, 2000, on any land held by
a tenure holder, shall, unless the 35
contrary is proved, be presumed to have
been built by the occupant thereof and
where the occupants are members of one
family by the head of that family. "

5. Section 67(a) of the Code confers
rights
on
certain
people
who
have
8 All. Asgar Vs. State of U.P. & Ors.
863
encroached
upon
public
land.
The
perequisite conditions for invoking the
protection of Section 67 (a) of the Code are
these.
The
person
against
whom
proceedings are taken out has built his
house on any land referred to in Section 63
of the Code, the person who seeks
protection of Section 67 (a) of the Code
should be in the category of persons
referred to in Section 63 of the Code. The
land should not be reserved for any public
purpose. The date of the construction of the
house should be prior to 29 November,
2012. The house of such persons should be
existing in the disputed parcels of land on
or before 29 November 2012.

6. In many instances, as indeed in the
present case, the noticee under Section 67
of the Code may invoke the protection of
Section 67 (a) of the Code to resist the
proceedings under Section 67 of the Code.

7. The authority/ court having
jurisdiction to decide the proceedings taken
out under Section 67 of the Code or Section
67(a) of the Code is the same. When the
defence of Section 67 (a) of the Code is
taken in proceedings of Section 67 of the
Code, the same issues will be directly and
substantially
in
issue
in
both
the
proceedings. Usually in such matters
pleadings, defence, pleadings and evidence
of the parties are same in both the
proceedings. In case proceedings under
Section 67 and 67(a) of the Code are
conducted separately and in isolation to one
another, it would lead to multiplicity of
litigation and inconsistent judgments. There
will also be an avoidable delay in decision
of the controversy and may even result in
miscarriage of justice.

8. In fact proceedings under Section
67 (a) of the Code should be registered
immediately after a defence in that regard
is made in proceedings under Section 67 of
the Code.

9. The proceedings under Sections 67
and 67(a) of the Code, should be
consolidated and heard together by the
same
court.
Such
procedure
would
faithfully implement the legislative intent
and also serve the interest of justice.

10. In the case at hand the appellate
court notices the fact that the petitioner had
specifically contended that his house was
standing on the disputed parcel of land and
he was entitled to the protection of Section
67 (a) Code. The trial court neglected to
return a specific finding on this critical
aspect while proceeding to determine the
issue
finally.
The
appellate
court
misdirected itself in lay by holding that it
was open to the petitioner to take out a
fresh proceeding under law. No fresh
proceedings are liable to be taken out in the
case as stated earlier.

11.The courts in proceedings under
Section 67 Code are under obligation of
law to decide the eligibility of the noticee
for protection under Section 67 (a) Code, in
case such defence is tendered by the
noticee. The said proceedings shall be
registered separately. But both cases will be
consolidated
and
heard
and
decided
together.

12. In the wake of preceding
discussion the impugned orders dated
14.10.2020 and 30.10.2019 are vitiated and
contrary
to
law.
The
orders
dated
14.10.2020 and 30.10.2019 are liable to be
set aside and are set aside.

13. The matter is thus remitted to the
respondent No. 3 /Tehsildar (Judicial)
864 INDIAN LAW REPORTS ALLAHABAD SERIES
Tehsil
Sadar,
District
Muzaffarnagar/
Assistant
Collector
for
a
fresh
determination
consistent
with
the
observation made in this judgment.

14. The following directions are being
passed to serve the interest of justice in this
case:

(1) The petitioner shall file fresh
application under Section 67(a) of the Code
before the respondent No. 3/Tehsildar
(Judicial)
Tehsil
Sadar,
District
Muzaffarnagar/ Assistant Collector.

(2)
The
respondent
No.
3/Tehsildar (Judicial) Tehsil Sadar, District
Muzaffarnagar/ Assistant Collector shall
register the proceedings under Section 67
(a)
upon
the
submission
of
such
application. Proceedings under Section
67(a) so instituted shall be consolidated and
heard with proceedings under Section 67 of
the Code registered as Case No. 59 of 2019
and decided by a common judgment.

15. The writ petition is allowed to the
extent indicated above.
----------
(2021)08ILR A864
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No. 11522 of 2021

Kshetriya Shree Gandhi Ashram, Ghazipur
 ...Petitioner
Versus
The Employee Provident Fund Appellate
Tribunal and CGIT cum Labour Court ,
Kanpur & Anr. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tewari, Sri Satyajit Mukerji, Sri
Suresh Chandra Mishra

Counsel for the Respondents:
Sri Sachindra Upadhyay

Civil Law - Employees Provident Funds
and Miscellaneous Provisions Act (19 of
1952) - composite order passed under
Sections 14-B & 7-Q when appealed under
Section 7-I, then there is no mandatory
requirement for making pre-deposit in
view of Section 7-O of the Act (Para 11)
Composite Order passed u/s 14-B as well as 7-Q
of the "1952 Act" directing for payment of
damages & penal interest - an appeal was
preferred by the petitioner - Tribunal required
the petitioner to make pre-deposit of the full
amount assessed u/s 7-Q as well as 50% of the
amount assessed u/s 14B - Held - Impugned
order totally against the statutory provision 7-O
of the Act of 1952 - impugned order quashed
Allowed. (E-4)
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Rajesh Tewari, learned
counsel for the petitioner and Sri Sachindra
Upadhyay, learned counsel for respondent
Nos. 1 and 2.

2. This writ petition has been filed
seeking quashing of order dated 26.02.2021
passed by respondent No.1 in appeal filed
before Appellate Tribunal as well as
recovery order dated 02.03.2021 passed by
respondent No.2.

3. The facts, as disclosed in the
petition, are that the petitioner is a
registered society and has been established
with an object of popularizing hand woven
cloth by helping rural population of the
country and to develop Cottage Industry.
On 05.01.2021, an order was passed under