# Fahim Baig v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-21
- **Case number:** C.M.W.P. No. 16982 of 2012
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fahim-baig-v-state-of-u-p-ors-43384
- **Pages:** 3

## Headnote

U.P.Z.A. & L.R Act-Section 123-B-Punishment
for occupation of Gaon Sabha land-no eviction
proceeding ever initiated-against petitionerno question of re occupies-provisions of
Section 123-B not applicable-order quashed.
Held: Para-9
In other words, the punishment and the
procedure prescribed under Section 123-B of
the Act is to be followed after the proceedings
for eviction under Section 122-B have been
completed.
Secondly,
the
provisions
of
Section 123-B of the Act are applicable only if
a person re-occupies the land of the Gaon
Sabha after his eviction therefrom. It is not
the provision for punishment or eviction of
unauthorized occupant in first instance.

## Text

3 All] Fahim Baig Vs. State of U.P. & Ors.
1265
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
C.M.W.P. No. 16982 of 2012
Fahim Baig
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Dinesh Kr. Yadav, Sri A.R. Nadiwal
Counsel for the Respondents:
C.S.C., Sri Amit Kumar Asthana, Sri Kripa
Shanker Yadav, Sri M.N. Singh, Sri
Yatindra, Sri R.J. Shahi
U.P.Z.A. & L.R Act-Section 123-B-Punishment
for occupation of Gaon Sabha land-no eviction
proceeding ever initiated-against petitionerno question of re occupies-provisions of
Section 123-B not applicable-order quashed.
Held: Para-9
In other words, the punishment and the
procedure prescribed under Section 123-B of
the Act is to be followed after the proceedings
for eviction under Section 122-B have been
completed.
Secondly,
the
provisions
of
Section 123-B of the Act are applicable only if
a person re-occupies the land of the Gaon
Sabha after his eviction therefrom. It is not
the provision for punishment or eviction of
unauthorized occupant in first instance.
(Delivered by Hon'ble Pankaj Mithal, J.)
1.
Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for respondents No.1 to 4. Notice
on behalf of respondent No.6 has been
accepted by Sri M.N. Singh.
2. The petitioner by means of this
writ petition has challenged the order
dated 17.3.2012 passed by the Up-Ziladhikari,
Sadar, Azamgarh. The said order directs the
petitioner to vacate part of Arazi No.106
which is in his unauthorized occupation for
the last two months failing which he would be
dispossessed from the same and the expenses
for his dispossession shall be recovered from
him as arrears of revenue and a first
information will be lodged against him under
Section 3/5 of the Prevention of Damage to
Public Property Act, 1984.
3. On the basis of the pleadings
exchanged between the parties on record,
the aforesaid land is the land of Gaon
Sabha recorded as manure pit which
cannot be occupied by any person
otherwise than with the permission of the
Gaon Sabha. The said land is not allotted
to the petitioner and that he is in
unauthorized occupation of the same.
4. Learned Standing Counsel has filed
supplementary counter affidavit stating that
no proceedings under Section 122-B of the
U.P. Zaminari Abolition and Reformed Act,
1950 (hereinafter referred to as the 'Act')
were ever drawn against the petitioner for his
eviction from the said land. He also submits
that the petitioner was never evicted from the
said land earlier.
5. The impugned order is said to
have been passed by the authority concern
in purported exercise of power under
Section 123-B of the Act. The aforesaid
provision provides for punishment for
occupation of the Gaon Sabha land and
for summary eviction of person who has
re-occupied Gaon Sabha land after his
eviction. Section 123-B of the Act for the
sake of convenience is reproduced below:
"123-B. Punishment for occupation
of Gaon Sabha land. - (1) Where any
1266
 INDIAN LAW REPORTS ALLAHABAD SERIES
person has been evicted under this Act
from any land vested in a Gaon Sabha,
and such person or any other person,
whether
claiming
through
him
or
otherwise, thereafter occupies such land
or
any part thereof without lawful
authority,
such
occupant
shall
be
punishable with imprisonment for a term
which may extend to three years or with
fine or with both.
(2) Any Court convicting a person
under sub-section (1) may make an order
for evicting the person summarily from
such land and such person shall be liable
to such eviction, without prejudice to any
other action that may be taken against him
under any law for the time being in force.
(3)
Without
prejudice
to
the
provisions of sub-section (1) and (2), the
Collector
may,
whether
or
not
a
prosecution is instituted under sub-section
and may for that purpose, use or cause to
be used such force as may be necessary
for
evicting
any
person
found
in
occupation thereof."
6. It provides that where any person
has been evicted under the Act from any
land vested in Gaon Sabha and such
person or any other person claiming
through him occupies the said land
without any lawful authority, he can be
punished with imprisonment or fine or
both. It further provides that the court
apart from convicting the person as
aforesaid may also make order for his
summary eviction and that the Collector is
authorised to retake the possession of
such land.
7. The manner of eviction of a
person in unauthorized occupation of the
Gaon Sabha land has been provided under
Section 122-B of the Act. It provides for
initiation of proceedings by the Assistant
Collector and for passing order of eviction
of such unauthorized occupant.
8. A simple reading of Section 122B and 123-B of the Act reveals that it is
only after an order of eviction is passed
against the unauthorized occupant of the
Gaon Sabha land and he is so evicted
therefrom under Section 122-B of the Act
that when he again occupies the Gaon
Sabha land, he can be punished with
imprisonment or fine or both and may be
summarily directed to be evicted from the
Gaon Sabha land under Section 123-B of
the Act.
9. In other words, the punishment
and the procedure prescribed under
Section 123-B of the Act is to be followed
after the proceedings for eviction under
Section 122-B have been completed.
Secondly, the provisions of Section 123-B
of the Act are applicable only if a person
re-occupies the land of the Gaon Sabha
after his eviction therefrom. It is not the
provision for punishment or eviction of
unauthorized occupant in first instance.
10. In view of the aforesaid legal
position, as it is no once case that the
petitioner after eviction under Section
122-B of the Act has reoccupied the Gaon
Sabha land, no order against him could
have been passed under Section 123-B of
the Act.
11. In view of the aforesaid facts
and circumstances, the impugned order
dated 17.3.2012 is not only illegal but is
also
without
jurisdiction
and
is
accordingly quashed.
12. The writ petition is allowed.
--------
3 All]
Committee of Management, BDSUM Vidyalaya, Ballia & Anr. Vs. State of U.P. & Ors.
1267
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
C.M.W.P. No. 17261 of 2015
Committee
of
Management,
BDSUM
Vidyalaya, Ballia & Anr.
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Gopal Ji Rai
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Principle
of Natural Justice-refusal of grant in aidimpugned order passed by adopting
unique method talking on mobile phoneheld-not fair-principle of Natural Justice
violated-order quashed.
Held: Para-14
In
view
of
the
aforesaid
facts
and
circumstances, as the Principal Secretary
deviced a noval method of hearing which is
completely alien to the legal jurisprudence;
failed to give any notice to the parties for
hearing fixing a date; and proceeded to talk
about the matter with the parties on mobile
phone in the absence of the other, it is plain
and simple that he acted in utter violation
of the principles of natural justice and
against the doctrine of fair play in passing
the impugned order.
(Delivered by Hon'ble Pankaj Mithal, J.)
1. The institution of the petitioners
has been refused grant in aid by the
impugned order dated 15.09.2010.
2. The said order has been passed by
Principal Secretary, Sanskrit Shiksha
Anubhag, U.P. Shasan, in pursuance of
the directions of this Court contained in
the order dated 03.04.2014 passed in Writ
-C No. 15335 of 2014, C/M Sri Deena
Nath
Tiwari
Sanskrit
Uchchattar
Madhyamik Vidyalaya and another.
3. In disposing of the above writ
petition this Court, had directed the
respondent no. 1 of the said writ petition
to
consider
the
grievance
of
the
petitioners with regard to entitlement of
grant in aid after hearing the petitioners.
4.
One of the ground on which the
above order has been assailed is that without
hearing the petitioners no order could legally
be passed on the basis of talk on the
telephone/mobile with the parties concern.
5. Learned Standing Counsel was
directed to file counter affidavit within
four weeks on 01.04.2015, but till date no
counter affidavit has been filed.
6.
Learned Standing Counsel after
going through the impugned order is himself
surprised and submits that there appears to be
no hearing in the matter and the Adjudication
Authority had simply talked with the parties
on mobile. In such circumstances, the Court
may quash the order and sent the matter back
for reconsideration.
7. The Court is surprised at the manner
in which the impugned order has been passed
by non else than a Senior Officer of the
Indian Administrative Service holding the
post of the Principal Secretary.
8. The principles of natural justice are
the
backbone
of
the
any
administrative/judicial system. No order of
any administrative authority or the court of
law can be sustained until and unless it has