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

- **Citation:** (2023) 4 ILRA 907
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Writ-C No. 7024 of 2023
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhura-v-state-of-u-p-ors-50044
- **Pages:** 5

## Headnote

A. UP Revenue Code, 2006 - Sections 67 &
67A
-
Illegal
encroachment
-
Determination - Defence of Section 67-A,
how far relevant - Held, 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 - Failure of the learned
courts below to enquire into the validity of
the defence of the petitioner u/s 67-A of
the Code has resulted in a miscarriage of
justice. (Para 14 and 17)
Writ petition allowed. (E-1)
List of Cases cited:
Chairman LIC of India & ors. Vs A. Masilamani;
2013 (32) LCD 30: (2013) 6 SCC 530

## Text

4 All. Bhura Vs. State of U.P. & Ors.
907
respondent no.2 along with interest of 6.5%
per annum.

15. With the aforesaid direction, the
present writ petition is disposed of.
----------
(2023) 4 ILRA 907
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-C No. 7024 of 2023

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

Counsel for the Petitioner:
Sri Amit Kumar

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Pandey

A. UP Revenue Code, 2006 - Sections 67 &
67A
-
Illegal
encroachment
-
Determination - Defence of Section 67-A,
how far relevant - Held, 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 - Failure of the learned
courts below to enquire into the validity of
the defence of the petitioner u/s 67-A of
the Code has resulted in a miscarriage of
justice. (Para 14 and 17)
Writ petition allowed. (E-1)
List of Cases cited:
Chairman LIC of India & ors. Vs A. Masilamani;
2013 (32) LCD 30: (2013) 6 SCC 530

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Shri Amit Kumar, learned
counsel for the petitioner and the learned
Standing Counsel for the State respondents.

2. The impugned order dated
25.8.2022 passed by the respondent No.3Tehsildar(Judicial),
Tehsil-Amroha,
District-Amroha, rendered in proceedings
registered as Computerized Case No.
T202113380101336 under Section 67 of
the Uttar Pradesh Revenue Code, 2006
(hereinafter referred to as the 'Code'), finds
that the petitioner had illegally encroached
over the disputed parcels of land, and
accordingly it was directed that the
petitioner be evicted from the disputed
parcel of land. Damages and other charges
were also imposed upon the petitioner.

3.

The
learned
appellate
court/Collector, Amroha, by the impugned
order dated 19.11.2022 agreed with the
findings of the learned trial court-Tehsildar
(Judicial),
Tehsil-Amroha,
DistrictAmroha, and affirmed its order dated
25.08.2022.

4. Shri Amit Kumar, learned counsel
for the petitioner contends that the defence
of Section 67A of the U.P. Revenue Code,
2006 taken by the petitioner was not
adverted to by both the courts below.
Further without proper demarcation of the
lands, a finding of illegal encroachment
cannot be determined.

5. Due to inadvertence, Section 67-A
of the Code could not be referred to the
Court when the judgement was rendered on
29.07.2021, this necessitated the review
application.

6. Learned Standing Counsel for the
State-respondent contends that protection
of Section 67-A of the U.P. Revenue Code,
908 INDIAN LAW REPORTS ALLAHABAD SERIES
2006 can only be allowed to persons who
satisfy the mandatory preconditions for the
same.

7. All these relevant facts for just
adjudication of the controversy can be
prised out from the impugned orders.
Exchange of affidavits shall unnecessarily
delay the disposal of the controversy. With
consent of parties the matter is being
decided finally.

8. To make a finding of illegal
encroachment upon any disputed parcel of
land in proceedings taken out under Section
67 of the U.P. Revenue Code, 2006, the
demarcation of the boundaries of the
disputed parcel of land is an essential
prerequisite. Admittedly, the same has not
been done in this case. On this count alone
the finding of illegal encroachment made
by the learned court below is vitiated.

9. The petitioner claimed entitlement
to the protection of Section 67A of the U.P.
Revenue Code, 2006. The learned courts
below have clearly neglected to consider
the aforesaid issue. This reflects non
application of mind.

10. Section 67 as well as Section 67A 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
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 ma be
necessary, and may direct that the amount
4 All. Bhura Vs. State of U.P. & Ors.
909
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

11. 67-A Certain house sites to be
settled with existing owners thereof.-

(1) If any person referred to in subsection (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. "

12. The aforesaid ingredients have to be
established as a mandatory prerequisite for
grant of protection under Section 67-A of the
U.P. Revenue Code, 2006. Section 67-A of the
Code confers rights on certain people who
have encroached upon public land. The
conditions
precedent
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
on the disputed parcels of land on or before 29
November 2012.

13. In many instances, as in the
present case, a noticee under Section 67 of
the Code may invoke the protection of
910 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 67-A of the Code to resist the
proceedings under Section 67 of the Code.

14. 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 67A 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.

15. 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.

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

17. In the facts and circumstances of
this case, the failure of the learned courts
below to enquire into the validity of the
defence of the petitioner under Section 67-A
of the Code has resulted in a miscarriage of
justice.

18. In wake of preceding discussion,
the impugned orders dated 19.11.2022
passed by the appellate court/Collector,
Amroha and the order dated 25.8.2022
passed
by
the
trial
courtTehsildar(Judicial),
Tehsil-Amroha,
District-Amroha, are vitiated and contrary
to law. The orders dated 19.11.2022 and
25.08.2022 are liable to be set aside and are
set aside, and needs for remand.

19. It has been held by the Hon'ble
Apex Court in 2013 (32) LCD 30:(2013) 6
SCC 530 (Chairman LIC of India & ors.
vs. A. Masilamani) if an Authority/Court
sets aside the order on technical grounds
then the matter may be remanded back to
the Authority, in the instant matter non
consideration of Section 67(A) is the
technical error on part of the responding
authorities and as such the matter is thus
remitted to the Tehsildar(Judicial), TehsilAmroha, District-Amroha, for a fresh
determination
consistent
with
the
observation made in this judgment.

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

(i) The petitioner shall file a fresh
application under Section 67-A of the Code
before the Tehsildar (Judicial), TehsilAmroha, District-Amroha, within a period
of one month from the date of receipt of a
certified copy of this order.

(ii) The Tehsildar (Judicial),
Tehsil-Amroha,
District-Amroha,
shall
register the proceedings under Section 67A of the Code upon submission of such
application.

(iii) 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
4 All. Bajaj Allianz General Insurance Co. Ltd. Vs. Motor Accident Claim, Shahjahanpur & Ors. 911
Computerized
Case
No.
T202113380101336 and decided by a
common
order,
consistent
with
the
observations made in this judgement.

(iv) Prior to entering a final
judgement the court below shall ensure that
demarcation of disputed parcels of lands is
completed as per law.

21. The writ petition is allowed to the
extent indicated above.
----------
(2023) 4 ILRA 911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No .14503 of 2022

Bajaj Allianz General Insurance Co. Ltd.
 ...Petitioner
Versus
Motor Accident Claim, Shahjahanpur &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Pawan Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Motor Vehicle Act, 1988 - Section 167 -
Bar - Scope - Multiplicity of claim - Award
passed, earlier, under the Workmen's
Compensation Act was not disclosed in the
claim petition - Effect - Held, Section 167
clearly
restricts
the
right
to
claim
compensation on account of a tort from
one of the forums prescribed namely the
Motor Vehicles Act or the Workmen's
Compensation Act - As the respondents
have obtained the order from the Motor
Accidents Claims Tribunal by concealing
the true facts and in contravention to
Section 167 of the Act, there was a clear
case of statutory fraud on the Tribunal.
(Para 18 and 22)
B. Review - Procedural review - Scope -
Held, although a review, does not lie
unless it is prescribed by the statutes, a
procedural review is implicit in all the
courts - Grindlays Bank Limited's case
relied upon. (Para 23)
Writ petition disposed off. (E-1)
List of Cases cited:
1. National Insurance Co. Vs Mastan & anr.;
(2006) 2 SCC 641.
2. Oriental Insurance Co. Ltd. Vs Dyamavva &
ors.; (2013) 9 SCC 406
3. First Appeal No. 1998 of 2017; Madinabibi
Dasotbhai Sheikh & ors. Vs Jagdishchandra
Ramanlal Kachiya Patel & ors. decided on
23.06.2017
4. re: WCC Ref. No.1 of 2010, Commissioner of
Workmen's Compensation; 2010 SCC online Ker
4805
5. New India Assurance Co. Ltd. Vs Annapurna
Gupta & ors.; 2018 (9) ADJ 784
6. National Insurance Co. Vs Mastan & anr.;
(2006) 2 SCC 641
7. Oriental Insurance Co. Vs Dyamavva & ors.;
(2013) 9 SCC 406
8. FAFO No. 1946 of 2018; New India Assurance
Co. Ltd. Vs Smt. Annapurna Gupta & anr.
decided on 17 April, 2018
9. Grindlays Bank Ltd. Vs Central Government
Industrial Tribunal & ors.; 1981 SCR (2) 341

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard counsel for the parties and
Sri Bhanu Pratap for respondent no. 2 to 7.

2. Present petition has been filed
challenging the order dated 02.02.2022,
whereby the application filed by the