# Mahadev Singh Dal Bahadur Singh v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-09
- **Case number:** Writ-C No. 9984 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahadev-singh-dal-bahadur-singh-v-state-of-u-p-ors-49380
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Revenue Code, 2006 -
Section
101
-
Pond
/
Talab
-
Encroachment - Exchange - Exchange
from the land recorded as pond is not
permissible, even if it has been converted
into abadi; such land is liable to be
vacated
and
restored
as
pond.
Encroachers are not entitled for exchange
of their land, and if it is permitted, then
persons having muscle power will make
encroachment on prominent and valuable
land of the Government and others, and
on being found as encroachers would seek
exchange from their land which may be of
lesser value. Therefore, exchange cannot
be
considered
and
allowed
in
such
circumstances. (Para 15, 17)

B. Civil Law - U.P. Revenue Code, 2006 -
Section 67 - Encroachment over Pond -
Land recorded as pond - Admission of
encroachment - Petitioner admitted that
618 INDIAN LAW REPORTS ALLAHABAD SERIES
the land in dispute is recorded as Talab
(pond), on which he has constructed a
house in which he is residing. It amounts
to admission of illegal encroachment on
pond land by the petitioner. Once a fact is
admitted, it is not required to be proved.
The cardinal principle of law of evidence is
that a fact admitted need not be proved.
Impugned
orders
have
rightly
been
passed in accordance with law, which do
not call for any interference. If others
have also made encroachment on the
pond land, the respondents shall get the
same vacated in accordance with law and
restore the pond. (Para 16, 18)

Dismissed. (E-5)

## Text

11 All. Mahadev Singh Dal Bahadur Singh Vs. State of U.P. & Ors.
617
4.21 (a) stipulates that system loading
charges shall not be refunded.

39. In Delhi International Airport
Authority Ltd. (supra) cited by counsel
for the respondents, the issue was whether
service tax could be charged on 'user
development fee' (UDF). The Supreme
Court held that it was in nature of 'tax or
cess' collected for recovering the cost of
future
projects
and
there
was
no
consideration for services provided by the
assessee to the customer and thus could not
be subjected to service tax. In that case, the
assessees
were
entrusted
with
the
management and development of the
Airport in pursuance of joint venture
agreement with Airport Authority of India,
created under the Airport Authority of India
Act, 1994. The UDF was being charged by
the
assessees
from
every
departing
domestic passengers in terms of Rule 3 of
the Rules framed under the Act. There was
no dispute in that case that UDF was
collected by the assessees from persons
actually liable to pay it. As noted above, the
Court in that case was only considering the
leviability of service tax on UDF. The said
judgement
is
thus
of
no
help
to
respondents.

Conclusion :

40. Bearing in mind the scheme of the
Act and the provisions of the Code, we
have no hesitation in holding that the
petitioner who only remained a prospective
consumer and did not become actual
consumer, had not incurred the liability to
share the burden of upgradation and
strengthening of the distribution system. He
is therefore, entitled to refund of the system
loading charges, i.e. Rs.32 lakhs alongwith
interest @ 8.5% per annum from date of
deposit till the date of refund. It is ordered
accordingly.

41. In the result, the writ petition
succeeds and is allowed in part. Costs made
easy.
----------
(2023) 11 ILRA 617
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ-C No. 9984 of 2023

Mahadev Singh Dal Bahadur Singh
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pankaj Gupta

Counsel for the Respondents:
C.S.C., Mohan Singh

A. Civil Law - U.P. Revenue Code, 2006 -
Section
101
-
Pond
/
Talab
-
Encroachment - Exchange - Exchange
from the land recorded as pond is not
permissible, even if it has been converted
into abadi; such land is liable to be
vacated
and
restored
as
pond.
Encroachers are not entitled for exchange
of their land, and if it is permitted, then
persons having muscle power will make
encroachment on prominent and valuable
land of the Government and others, and
on being found as encroachers would seek
exchange from their land which may be of
lesser value. Therefore, exchange cannot
be
considered
and
allowed
in
such
circumstances. (Para 15, 17)

B. Civil Law - U.P. Revenue Code, 2006 -
Section 67 - Encroachment over Pond -
Land recorded as pond - Admission of
encroachment - Petitioner admitted that
618 INDIAN LAW REPORTS ALLAHABAD SERIES
the land in dispute is recorded as Talab
(pond), on which he has constructed a
house in which he is residing. It amounts
to admission of illegal encroachment on
pond land by the petitioner. Once a fact is
admitted, it is not required to be proved.
The cardinal principle of law of evidence is
that a fact admitted need not be proved.
Impugned
orders
have
rightly
been
passed in accordance with law, which do
not call for any interference. If others
have also made encroachment on the
pond land, the respondents shall get the
same vacated in accordance with law and
restore the pond. (Para 16, 18)

Dismissed. (E-5)

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Tushar Gupta, Advocate
holding brief of Shri Pankaj Gupta, learned
counsel for the petitioner, learned Standing
Counsel
and
Shri
Ravindra
Singh,
Advocate holding brief of Shri Mohan
Singh, learned counsel for the Gaon Sabha.

2. This petition has been filed
challenging the orders dated 21.05.2022
passed in Case No.86 of 2022 under
Section 67 of the U.P. Revenue Code- 2006
(here-in-after referred as Code-2006) by the
Tehsildar/ Assistant Collector (First Class),
Gauriganj, District- Amethi/ respondent
no.3 and the order dated 11.09.2023 passed
by
the
Collector,
District-
Amethi/
respondent no.2 in Appeal No.525 of 2022
under Section 67(5) of Code-2006.

3. Learned counsel for the petitioner
submits that the impugned order dated
21.05.2022 has been passed in a haste
manner without affording opportunity to
the petitioner and following the procedure
as prescribed by this Court in Writ-C
No.6658 of 2022 (Rishipal Singh VS. State
of U.P. & 3 others) reported in 2022 SCC
OnLine All 829 on the ground that the case
was registered under Section 67 of the U.P.
Revenue Code on 12.01.2022 and the
notice was issued to the petitioner on
13.05.2022 and the impugned order was
passed on 21.05.2022. He further submits
that the land in dispute i.e. Gata No.166
Min/0.025 hec., though recorded as Talab
(pond), is not in the shape of Talab (pond)
and residential. The name of the petitioner
is recorded on Gata No.165, which is
adjacent to the said Gata and in case the
opportunity would have been afforded, the
petitioner could have claimed exchange
from his land i.e. Gata No.165, therefore
the impugned order is not tenable in the
eyes of law. The grounds taken by the
petitioner in the appeal have also not been
considered and the appeal has been
dismissed. Thus, the submission is that the
impugned orders are not sustainable in the
eyes of law and liable to be quashed.

4. Per contra, learned Standing
Counsel submits that the impugned order
has rightly been passed after affording
opportunity to the petitioner. The petitioner
had submitted his reply to the show cause
notice, in which he had admitted that the
land in dispute is recorded as Talab (pond),
though he claimed that his house is built on
the said land which is in the shape of Abadi
(residential). A contradictory objection has
been taken in paragraph-5 of the objection
that he has not made any encroachment on
the land of pond and is residing in his
ancestral house and the report has been
submitted without spot inspection. The
opportunity of cross-examination with the
Lekhpal was also afforded to the petitioner,
which was made by the petitioner on
08.05.2022, in which the Lekhpal has
specifically stated that he had made the
inspection, in which he had found that the
petitioner has constructed the house on
11 All. Mahadev Singh Dal Bahadur Singh Vs. State of U.P. & Ors.
619
Gata No.166/ area 0.025 hec. situated in
Village-
Jagdishpur.
Therefore,
the
contention of learned counsel for the
petitioner that the impugned order dated
21.05.2022 has been passed without
affording opportunity to the petitioner is
misconceived and not tenable. The appeal
has also been dismissed, after considering
the grounds raised by the petitioner. Even
otherwise, there is admission by the
petitioner that he is having house on the
recorded pond, which is adjacent to his
ancestral land. Thus the impugned orders
have rightly been passed in accordance
with law after affording opportunity to the
petitioner and there is no illegality or error
in the impugned order. The petition is
misconceived and liable to be dismissed
with cost.

5. I have considered the submissions
of learned counsel for the parties and
perused the records placed on record with
this petition.

6. On the basis of a report of Lekhpal,
a case under Section 67 of the Code- 2006
for eviction from Gata No.166/0.025 hec.
of Village- Jagdishpur, Pargana- Amethi,
Tehsil- Gauriganj, District- Amethi and
damages was registered. Admittedly a show
cause notice was issued to the petitioner
and served on him. In response thereof, the
petitioner had submitted objections. In the
objections, the petitioner has admitted in
paragraph-2 that the land in dispute is
recorded as Talab (pond) but stated that the
said land is in the shape of Abadi since last
fifty years and his house is built on the said
land and he is residing in the same. He has
also stated that others have also made a
house on the land in dispute. In paragraph3 of objection, the petitioner has stated that
he is residing on the land in dispute after
constructing house since the time of his
ancestors and he has no other place except
the said house. In paragraph-5 of the
objection, the petitioner has stated that he
has not made any encroachment on the land
of pond, rather he is residing in his
ancestral house and he has no other house.
He has further stated that the Halka
Lekhpal has submitted the report without
making any inspection.

7. After the objections were submitted
by the petitioner, the evidence of the
concerned Lekhpal was recorded on
18.05.2022, in which the opportunity of
cross-examination was also afforded to the
petitioner. The concerned Lekhpal has
deposed that he had made the inspection, in
which it was found that the petitioner has
constructed
his
house
on
Gata
No.166/0.025 hec., which is reserved for
Talab. The petitioner could not extract any
thing in the cross-examination, which may
create even any doubt on the evidence of
Lekhpal.

8. In view of above and the admission
of the petitioner in the objections in regard
to the land in dispute i.e. Gata No.166, it is
recorded as Talab and the petitioner has
built a house on the said land after making
illegal encroachment on it, which as
submitted by learned counsel for the
petitioner is adjacent to his ancestral land
and the ancestral land of the petitioner is
Gata No.165 and Gata No.190 in the name
of petitioner. Therefore it is apparent that
the petitioner has made encroachment on
the land of Talab (pond) and the plea that
he has no other place is also false and not
sustainable.

9. So far as the plea of exchange
taken by the petitioner before this Court is
concerned, it was not taken before the
authority concerned, therefore it is nothing
620 INDIAN LAW REPORTS ALLAHABAD SERIES
but an after thought, after passing of the
order by the authority concerned and
dismissal of appeal and strengthens his
admission of encroachment on pond.
Therefore, this Court is of the view that the
impugned orders have rightly been passed
in accordance with law.

10. The power to prevent damage,
misappropriation and wrongful occupation
of Gram Panchayat property has been given
in Section 67 of the U.P. Revenue Code-
2006, which is extracted here-in-below:-

"(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
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 provisions of this
Code, and subject to the provisions of this
section every order of the Sub-Divisional
Officer 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 building standing thereon."

In view of above, in case of wrongful
occupation of the Gram Panchayat property
the action can be taken after issuing a show
cause notice and considering the reply, if
any, submitted by the person concerned.
11 All. Mahadev Singh Dal Bahadur Singh Vs. State of U.P. & Ors.
621

11. This Court, in the case of Rishipal
Singh Vs. State of U.P. and 3 Others
(Supra), has issued the guidelines to be
adopted as procedure to be applied to
proceedings under Section 67, 67A and 26
of the U.P. Revenue Code, which is
extracted here-in-below:-

"74. Thus, in my view, following
guidelines be adopted as procedure to be
applied to proceedings under Sections
67,67A and 26 of the U.P. Revenue Code. It
is all aimed at ensuring transparency in the
procedure, judiciousness in approach by
the authorities and to thwart every
complaint made with ulterior and oblique
motive to dislodge a long settled possession
and causing of unnecessary harassment to
an innocent villager:

(i) In case of complaint made on RC
From 19, the official making it shall ensure
that proper survey is done in the light of
observations made in this judgment; the
land, occupation of which has stood
identified to be unauthorized is in exact
measurement and so also shown in the
survey map prepared on scale, as per the
Land Revenue Survey Regulations, 1978;
the exact assessment of damages on the
basis of circle rate with details of
calculation made on that basis.

(ii) In a case of suo motu action,
before issuing RC Form 20, the authority
will ensure that proper report upon RC
Form 19 is submitted as per para (i) above
on parameters of subrule 1 Rule 67.

(iii)
RC
Form
20
must
be
accompanied by a copy of report and spot
survey submitted alongwith RC Form 19 to
the person against whom proceedings have
been
instituted,
or
even
otherwise
submitted in case of suo motu action vide
para (ii) above.

(iv) Upon reply being filed to the
notice,
if
authority
finds
that
spot
survey/explanation
report
is
not
satisfactory, it may order for a fresh spot
report to be prepared in presence of the
party aggrieved.

(v) In the event, objection includes a
plea of statutory protection/ benefit under
Section 67-A, the authority should invite
the objection from the Gaon Sabha, and
will decide the same alongwith the matter
under
Section
67,
without
requiring
aggrieved
party
to
move
separate
application under Section 67-A.

(vi) If the report is admitted on record,
may be in case no objection is filed, the
authority must ensure presence of the
person preparing the report before it, to
prove the report by his statement, with a
right to aggrieved party to cross question
him.

(vii) The authority must endeavour to
decide the case within time framed
provided under the relevant Act and the
Rules and should desist from granting
adjournment to the parties in a routine
manner.

(viii) In case of appeal under Section
67(5) of the U.P. Revenue Code, 2006,
preferred/ filed within the time prescribed
alongwith interim relief application, the
interim relief application as far as possible
should be decided within two weeks' time
with prior notice to other side and where
plea of settlement under Section 67-A has
been taken before Assistant Collector-1st
Class, and damages to the tune of 25 % atleast of the total damages are paid and an
affidavit of undertaking is filed for not
raising any further construction upon the
land in question, the authorities including
civil administration should avoid taking
any coercive measure pursuant to the order
appealed against until the disposal of
interim relief application. The Appellate
authority may also consider granting
interim relief on the very first day of filing
622 INDIAN LAW REPORTS ALLAHABAD SERIES
of appeal with stay application if above
conditions are fulfilled by the appellant.

(ix) The appellate authority should as
far as possible decide the appeal within a
period of two months of its presentation. "

12. This Court, in the aforesaid
guidelines, has provided in paragraph (iv)
that upon reply being filed to the notice, if
authority finds that spot survey/explanation
report is not satisfactory, it may order for a
fresh spot report to be prepared in presence
of the party aggrieved. Paragraph (v)
provides that in the event, objection
includes a plea of statutory protection/
benefit under Section 67-A, the authority
should invite the objection from the Gaon
Sabha, and will decide the same alongwith
the matter under Section 67. Paragraph (vi)
provides for presence of the person, who
has prepared the report to prove it and for
cross-examination by the aggrieved party.

13. In the present case, the petitioner
has admitted that the land in dispute i.e.
Gata No.166/0.025 hec. is recorded as
Talab (pond), on which the house has been
constructed, in which he is residing,
therefore there is admission of illegal
encroachment on pond by the petitioner.
Therefore, the plea that the report has been
submitted by the Lekhpal without any
inspection in the objection, which has not
been
pressed
subsequently
and
the
inspection proved by the evidence of the
Lekhpal, from whom the petitioner had also
made the cross-examination but could not
extract anything contrary to the same, it
could not have been disputed and has not
been disputed and has also not been
found unsatisfactory. Even otherwise,
once a fact is admitted, it is not required
to be proved. The cardinal principles of
law of evidence is that a fact admitted
need not be proved.

14. So far as the plea taken by the
petitioner in the objection that the land in
dispute is in the shape of Abadi is
concerned, it is immaterial, once it has been
admitted that the land in dispute is recorded
as Talab (pond) because the nature of the
land in dispute may have been changed and
created by the encroachers which includes
the petitioner and it does not give any right
to the petitioner on the land of pond. The
petitioner has not taken any plea of his
statutory protection/ benefit in the objection
filed against the show cause notice,
therefore such plea is not tenable at this
stage. Even otherwise, this plea is not
available to the petitioner on the land of
pond and he is also having his ancestral
property.

15. So far as the plea of the petitioner
for exchange of the land in dispute from the
land of the petitioner is concerned, the plea
is totally misconceived and not tenable
because the exchange can be made by any
Bhumidhar under Section 101 of the Code2006 of his land with the land held by
another Bhumidhar or entrusted or deemed
to be entrusted to any gram panchayat or
local authority under Section 59, whereas
the petitioner wants to exchange from the
recorded pond, which is not permissible,
even if it has been created as abadi and it is
liable to be get vacated and restored as
pond.

16. The Hon'ble Supreme Court, in
the case of Hinch Lal Tiwari Vs. Kamala
Devi and Others; (2001) 6 SCC 496 has
held that the material resources of the
community like forests, tanks, ponds,
hillock, mountain etc. are nature's bounty.
They maintain delicate ecological balance.
They need to be protected for a proper and
healthy environment which enables people
to enjoy a quality life which is the essence
11 All. M/S Nicholas Piramal India Ltd. & Ors. Vs. Presiding Officer Labour Court Lko. & Ors. 623
of the guaranteed right under Article 21 of
the Constitution and no part of pond could
have
been
allotted
to
anybody
for
construction of house building or any allied
purposes. A further direction has been issue
by the Hon'ble Supreme Court for
restoration of the pond, it's development
and maintenance as a recreational spot,
which will undoubtedly be in the best
interest of the villagers and it will also help
in maintaining ecological balance and
protecting the environment in regard to
which this Court has repeatedly expressed
its concern and such measures must begin
at the grass-root level if they were to
become the nation's pride. Therefore, if
others have also made encroachment on the
land of pond as stated by learned counsel
for the petitioner, the respondents shall get
the same also vacated in accordance with
law and restore the pond.

17. Even otherwise the encroachers,
who have their own land, can not be said to
be entitled for exchange of their land with
the same and if it is permitted, then the
persons having muscle power will make
encroachment on prominent and valuable
land of the Government and others and on
being found as encroachers would seek
exchange from their land, which may be of
lesser value, therefore exchange can not be
considered
and
allowed
in
such
circumstances.

18. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that the
impugned orders have rightly been passed
in accordance with law after affording
opportunity to the petitioner by reasoned
and speaking orders, which does not call
for any interference by this Court and the
pleas taken by the petitioner before this
Court are not tenable at all in the eyes of
law. This petition is misconceived, lacks
merit and liable to be dismissed. No other
points or grounds have been raised or
argued before this court.

19. This petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 11 ILRA 623
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1004529 of 2007

M/S Nicholas Piramal India Ltd. & Ors.
 ...Petitioners
Versus
Presiding Officer Labour Court Lko. & Ors.
 ...Respondents

Counsel for the Petitioners:
Dr. R.K. Srivastava, Nishchal Jagdhari

Counsel for the Respondents:
C.S.C., Birendra Pd. Singh, Sanjay Saxena

A. Labour and Industrial Law - U.P. Industrial
Disputes Act, 1947 - Sales Promotion Employees
(Conditions of Service) Act, 1976 - Sections 2(d)
& 6(1) & (2) - Issue: Whether Medical
Representatives are "workmen" - Petitioner,
employer took plea of want of jurisdiction of the
Labour Court on the ground that Medical
Representatives are not workmen and therefore
the dispute cannot be termed as an industrial
dispute and the Labour Court was not
competent to hear and decide the said case -
Held : After coming into force of the Sales
Promotion Employees (Conditions of Service)
Act, 1976 and subsequent amendment by Act
No. 48 of 1986 w.e.f. 6.5.1987, Medical
Representatives are deemed to be workmen
under Section 6(2) of the Act of 1976 and are
covered by the Industrial Disputes Act, 1947.