# Babu Ram v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-13
- **Case number:** Writ C No. 19804 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-v-state-of-u-p-ors-47377
- **Pages:** 5

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 67 & 67A - Illegal Encroachment
- If defence of S. 67(A) is taken by the
notice in proceedings under S. 67, then
proceedings
u/s
67(A)
should
be
registered separately but both cases i.e.
case u/s 67 as well u/s 67(A) should be
consolidated, heard & decided together -
courts in proceedings u/s 67 of the Code
are under obligation of law to decide the
eligibility of the noticee for protection u/s
67(A) of the Code (Para 12)

Petitioner invoked protection of s. 67(A) of the
Code on the footing that his residential house
was erected 35 years ago on the disputed parcel
of land & that a residential patta was granted to
his predecessors - courts below held petitioner
to be illegal encroacher & regarding petitioner's
defence held that it was open to the petitioner
to take out separate proceedings u/s 67(A) of
the Code for grant of appropriate relief as
claimed by him - Held - courts below erred in
law by failing to consider that the petitioner is
entitled to the protection of Section 67(A) of the
Code.

Allowed. (E-5)

## Text

9 All Babu Ram Vs. State of U.P. & Ors.
1251
accordingly allow and permit termination
of the pregnancy.

13. The pregnancy shall be terminated
by a registered medical practitioner at a
hospital established or maintained by
Government or a place for the time being
approved for the purpose of this Act by
Government,
as
contemplated
under
Section 4 of the Act. The hospital where
the pregnancy is terminated shall maintain
confidentiality, as required under Section
5-A of the Act.

14. We further direct that in terms of
the request made by the petitioner by filing
supplementary affidavit, the tissues and
blood samples of the fetus shall be
preserved by the hospital where pregnancy
is terminated. It shall be forwarded to the
nearest Government approved forensic
laboratory for preservation and testing, as
may be directed by the trial court seized of
the
matter..
The
permission
given
hereinabove for termination of pregnancy
shall last only until the fetus attains age of
24 weeks and consequently, the petitioner
is directed to present herself for termination
of pregnancy at recognized medical centre,
as stipulated under Section 4 of the Act,
well before expiry of 24 weeks, failing
which the instant order shall automatically
lapse.

15. The Registrar General is directed
to preserve the report of Medical Board in
sealed cover for future reference, if needed.

16. The petition stands disposed of
accordingly.
----------
(2021)09ILR A1251
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 19804 of 2021

Babu Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Kishore Pandey, Sri Priyanshu
Pandey

Counsel for the Respondents:
C.S.C., Sri Hari Narayan Singh

Civil Law - U.P. Revenue Code, 2006 -
Sections 67 & 67A - Illegal Encroachment
- If defence of S. 67(A) is taken by the
notice in proceedings under S. 67, then
proceedings
u/s
67(A)
should
be
registered separately but both cases i.e.
case u/s 67 as well u/s 67(A) should be
consolidated, heard & decided together -
courts in proceedings u/s 67 of the Code
are under obligation of law to decide the
eligibility of the noticee for protection u/s
67(A) of the Code (Para 12)

Petitioner invoked protection of s. 67(A) of the
Code on the footing that his residential house
was erected 35 years ago on the disputed parcel
of land & that a residential patta was granted to
his predecessors - courts below held petitioner
to be illegal encroacher & regarding petitioner's
defence held that it was open to the petitioner
to take out separate proceedings u/s 67(A) of
the Code for grant of appropriate relief as
claimed by him - Held - courts below erred in
law by failing to consider that the petitioner is
entitled to the protection of Section 67(A) of the
Code.

Allowed. (E-5)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Ram Kishore Pandey,
learned counsel for the petitioner, learned
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
Standing Counsel for the respondents No.1
to 3-State and Sri Hari Narayan Singh,
learned counsel for the respondent No.4Gaon Sabha.

2. By the impugned order dated
22.01.2021 passed by the respondent No.3Tehsildar (Judicial)/Assistant Collector 1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar rendered in proceedings registered as
Suit No.03064 of 2019, Computerized Suit
No.T201903410403064 (State of U.P. Vs.
Baburam) under Section 67 of the Uttar
Pradesh Revenue Code, 2006 (hereinafter
referred to as the 'Code'), the petitioner was
found to be illegal encroachment over the
disputed parcels of land. The learned
appellate
court/Additional
District
Magistrate (Judicial), Kanpur Nagar by the
impugned order dated 20.07.2021 agreed
with the findings of the learned trial
court/Tehsildar
(Judicial)/Assistant
Collector
1st
Class,
Tehsil-Narwal,
District-Kanpur Nagar, and affirmed its
judgement dated 22.01.2021.

3. Sri Ram Kishore Pandey, learned
counsel for the petitioner contends that the
ancestors of the petitioner were allotted a
residential patta over the disputed parcels
of land. The predecessors in interest of the
petitioner had erected a residential house
on the disputed parcels of land almost 35
years ago. This fact was confirmed in the
report submitted by the Lekhpal which is
appended as annexure 4 to the writ petition.
The learned courts below erred in law and
entered perverse findings by failing to
consider the aforesaid defence as well as
corroborative evidence in that regard. The
petitioner is entitled to the protection of
Section 67(A) of the Code.

4. A perusal of the impugned order
dated 22.01.2021 and the order dated
20.07.2021 corroborates the submission of
Sri Ram Kishore Pandey, learned counsel
for the petitioner.

5. The aforesaid facts could not be
disputed by the learned Standing Counsel
for the respondents No.1 to 3-State and Sri
Hari Narayan Singh, learned counsel for
the respondent No.4-Gaon Sabha

6. The petitioner had clearly invoked
the protection of 67(A) of the Code on the
footing that his residential house was
erected 35 years ago and that a residential
patta was granted to his predecessors. The
learned courts below neglected to consider
the aforesaid facts and defences raised by
the petitioner. This reflects non application
of mind.

7. 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.

8. 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.
9 All Babu Ram Vs. State of U.P. & Ors.
1253
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
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
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
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. "

9. Section 67(A) of the Code confers
rights
on
certain
people
who
have
encroached
upon
public
land.
The
prerequisite 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.

10. 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.

11. 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,
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.

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

13. This procedure would faithfully
implement the legislative intent and also
serve the interest of justice.

14. In the facts and circumstances of
this case, the failure of the learned courts
below to enquire into the validity of the
9 All CD (2021) & Anr. Vs. State of U.P. & Anr.
1255
defence of the petitioner under Section
67(A) of the Code has resulted into a
miscarriage of justice.

15. In the wake of preceding
discussion, the impugned order dated
22.01.2021 and the order dated 20.07.2021
are vitiated and contrary to law.

16. The order dated 22.01.2021
passed by the respondent No.3-Tehsildar
(Judicial)/Assistant Collector 1st Class,
Tehsil-Narwal, District-Kanpur Nagar and
the order dated 20.07.2021 passed by the
learned appellate court/Additional District
Magistrate (Judicial), Kanpur Nagar, are
liable to be set aside and are set aside.

17. The matter is thus remitted to the
respondent
No.3-Tehsildar
(Judicial)/
Assistant Collector 1st Class, TehsilNarwal, District-Kanpur Nagar for a fresh
determination
consistent
with
the
observation made in this judgment.

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

(1) The petitioner shall file a
fresh application under Section 67(A) of
the Code before the respondent No.3Tehsildar (Judicial)/Assistant Collector
1st Class, Tehsil-Narwal, District-Kanpur
Nagar within a period of one month from
the date of production of a computer
generated copy of this order downloaded
from the official website of the High
Court of Judicature at Allahabad. The
concerned Court/Authority/Official shall
verify
the
authenticity
of
such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.

(2)
The
respondent
No.3Tehsildar (Judicial)/Assistant Collector 1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar, shall register the proceedings under
Section 67(A) of the Code upon submission
of such application.

(3) Proceedings under Section
67(A) of the Code so instituted shall be
consolidated and heard with proceedings
under Section 67 of the Code registered as
Suit No.03064 of 2019, Computerized Suit
No.T201903410403064 (State of U.P. Vs.
Baburam) and decided by a common
judgment.

19. The writ petition is allowed to the
extent indicated above.
----------
(2021)09ILR A1255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DEEPAK VERMA, J.

Writ C No. 19983 of 2021

CD (2021) & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Nipun Singh, Sri Rishi Upadhyay

Counsel for the Respondents:
C.S.C.

Medical
Termination
of
Pregnancy
Act,1971 - Sections 3 & 5 - Medical
Termination of Pregnancy (Amendment)
Act, 2021, dated 25.03.2021 - Outer limit
for abortion has been enhanced to 24
weeks - pregnancy could be terminated by
a registered medical practitioner, if he is