# Govind Singh v. State of U.P. & Ors - **Citation:** (2021) 9 ILRA 1120 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-09-01 - **Case number:** Writ C No. 20493 of 2021 - **Bench:** Ajay Bhanot - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-singh-v-state-of-u-p-ors-47348 - **Pages:** 5 ## Headnote A. Civil Law - U.P. Revenue Code, 2006 - Section 67 - Illegal Encroachment - Without proper demarcation of the boundaries of the disputed parcel of lands, finding of illegal encroachment cannot be returned (Para 8) B. U.P. Revenue Code, 2006, S. 67, 67A - Illegal Encroachment - When defence of S. 67(A) is taken by the notice in proceedings of S. 67, proceedings u/s 67(A) should be registered separately but both cases u/s 67 as well under section 67(A) should be consolidated, heard & decided together as in such matters pleadings, defence, and evidence of the parties are same in both the proceedings - In case proceedings u/s 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 - 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. (Para 14, 15) Defence of Section 67A of the U.P. Revenue Code, 2006 taken by the petitioner was not adverted to by both the courts below - 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 into a miscarriage of justice - Impugned orders set side. (Para 18) Allowed. (E-5) ## Text 1120 INDIAN LAW REPORTS ALLAHABAD SERIES 11. The writ petition is disposed of finally. ---------- (2021)09ILR A1120 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 01.09.2021 BEFORE THE HON'BLE AJAY BHANOT, J. Writ C No. 20493 of 2021 Govind Singh ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Harish Chandra Mishra Counsel for the Respondents: C.S.C., Sri Deepak Gaur A. Civil Law - U.P. Revenue Code, 2006 - Section 67 - Illegal Encroachment - Without proper demarcation of the boundaries of the disputed parcel of lands, finding of illegal encroachment cannot be returned (Para 8) B. U.P. Revenue Code, 2006, S. 67, 67A - Illegal Encroachment - When defence of S. 67(A) is taken by the notice in proceedings of S. 67, proceedings u/s 67(A) should be registered separately but both cases u/s 67 as well under section 67(A) should be consolidated, heard & decided together as in such matters pleadings, defence, and evidence of the parties are same in both the proceedings - In case proceedings u/s 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 - 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. (Para 14, 15) Defence of Section 67A of the U.P. Revenue Code, 2006 taken by the petitioner was not adverted to by both the courts below - 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 into a miscarriage of justice - Impugned orders set side. (Para 18) Allowed. (E-5) (Delivered by Hon'ble Ajay Bhanot, J.) 1. Heard Shri Harish Chandra Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Shri Deepak Gaur, learned counsel for the Gaon Sabha. 2. The impugned order dated 30.11.2018 passed by the respondent No.3Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, District-Jhansi, rendered in proceedings registered as Case No.T201806370201602 (Gaon Sabha Vs. Govind Singh) 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 trial court in the impugned order dated 30.11.2018 has noticed that the Lekhpal in his cross examination had admitted that the disputed parcels of land were not demarcated and the house appeared to be of old vintage. 4. The learned appellate court/Additional Collector (Judicial), Jhansi by the impugned order dated 30.06.2021 agreed with the findings of the 9 All Govind Singh Vs. State of U.P. & Ors. 1121 learned trial court/Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, DistrictJhansi, and affirmed its judgement dated 30.11.2018. 5. Shri Harish Chandra Mishra, 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 returned. 6. Learned Standing Counsel for the State-respondent as well as Shri Deepak Gaur, learned counsel for the Gaon Sabha could not satisfactorily dispute the aforesaid submissions on fact and law. 7. All 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. Infact the Lekhpal had admitted before the court below that the disputed plots were not demarcated. 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. It is noteworthy that the Lekhpal had also deposed that the house is of old vintage. 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 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 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 1122 INDIAN LAW REPORTS ALLAHABAD SERIES 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 11. 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 9 All Govind Singh Vs. State of U.P. & Ors. 1123 been built by the occupant thereof and where the occupants are members of one family by the head of that family. " 12. 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 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 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. 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 into a miscarriage of justice. 18. In wake of preceding discussion, the impugned orders dated 30.06.2021 passed by the Additional Collector (Judicial), Jhansi and 30.11.2018 passed by the respondent No.3-Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, DistrictJhansi, are vitiated and contrary to law. The orders dated 30.06.2021 and 30.11.2018 are liable to be set aside and are set aside. 19. The matter is thus remitted to the respondent No.3-Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, DistrictJhansi, 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: 1124 INDIAN LAW REPORTS ALLAHABAD SERIES (1) The petitioner shall file a fresh application under Section 67(A) of the Code before the respondent No.3Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, District-Jhansi, 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/Assistant Collector 1st Class, Tehsil-Moth, District-Jhansi, 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 Case No.T201806370201602 (Gaon Sabha Vs. Govind Singh) and decided by a common order, consistent with the observations made in this judgement. (4). 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. ---------- (2021)09ILR A1124 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.09.2021 BEFORE THE HON'BLE AJAY BHANOT, J. Writ C No. 23502 of 2012 Deo Prakash Maurya ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri K.S. Ojha Counsel for the Respondents: C.S.C. Civil Law - Stamp Act (2 of 1899) - Sections 27, 75 & 47A - U.P. Stamp (Valuation of Property) Rules (1997) - R.7 - Stamp duty - determination of market value for the purpose of stamp duty - on the basis of ex-parte report of ADM (F/R) or other officer - Not proper Intendment of such inspection report is only to assist the adjudicating authority to record a prima facie satisfaction on the correctness of the valuation of the property as disclosed in the instrument - Ex-parte inspection report merely becomes the basis of initiating proceedings under Section 47-A of the Indian Stamp Act, 1899 - Once the report is disputed by the noticee, the stamp authorities cannot place reliance on the same to determine stamp liability - Adjudicating authority is required to make an independent enquiry as prescribed in Rule 7 of the 1997 Rules to determine the valuation of the property and on that basis assess the stamp liability payable on the instrument (Para 10) Allowed. (E-5) List of Cases cited: Ram Khelawan @ Bachcha Vs St. of u.p. and Prashant Shukla son of Sushil Chand Shukla, reported at 2005 (2) AWC 1087 (Delivered by Hon'ble Ajay Bhanot, J.) 1. Heard Sri Kamal Shankar Ojha, learned counsel for the petitioner and Sri Sanjay Goswami, learned Additional Chief Standing Counsel for the respondents-State.