# Nanhe Lal Kanaujia v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 1048
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-05
- **Case number:** P.I.L. No. 390 of 2022
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhe-lal-kanaujia-v-state-of-u-p-ors-50494
- **Pages:** 24

## Headnote

Civil Law-The Constitution of India-1950Article 226- Public Interest Litigation Petition
to restrain the Opposite Party from destroying
the temple, cutting the green trees and making
illegal constructions on Gata No.256 & 257-Kha
which are recorded as Public utility land---
Malafide conduct of the petitioner of the PIL
concealing the relevant fact convinces the Court
to dismiss the PIL with the costs but if the
present PIL is dismissed with costs, the
appropriate and needful steps which have been
taken by the St. of U.P. to ensure that the public
utility land of the Gaon Sabhas of the entire
Uttar Pradesh is free from the encroachments
and the same be existed in a same manner as
has been indicated in the revenue record, would
be frustrated and the Competent concerning
officials would think that the PIL in question has
already been dismissed, therefore, there is no
need to abide by any of the directions issued in
the
aforesaid
PIL.
Therefore,
instead
of
dismissing the instant PIL with costs PIL finally
disposed
of
considering
the
proper
and
appropriate steps which have been taken on
behalf of the St. of U.P. making those steps,
modalities and informations as a part of this
order so that in future those steps etc. be
considered as an example--- All the Competent/
concerning Revenue Officers / Officials of the St.
of U.P. shall ensure that the public utility land of
the
Gaon
Sabhas
is
free
from
illegal
encroachment and as soon as the illegal
encroachment is noticed, such encroachment
shall be removed forthwith by adopting the due
process of law inasmuch as any illegal
encroachment over the public utility land of the
Gaon Sabha does not only create hindrance in
utilizing such land in a manner as has been
prescribed in the revenue records but it also
causes serious prejudice to the villagers at large
who genuinely and seriously bank upon on that
public utility land, e.g. pond, pasture land,
Chakmarg, Khad Gaddha, Khalihan, Banjar land
etc. which are beneficial for the entire village in
question. (Para 14 & 35) (E-15)

List of Cases cited:
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1049

## Text

_Characters 0–39,659 of 83,973. This is a partial read: ask again with offset=39659 for what follows._

1048 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority. Accordingly, the present petition
is finally disposed of with liberty to the
petitioner to approach Revisional Authority,
as provided under Section 12-C(6) of the
Act of 1947.

31. In view of the aforesaid as also
taking note of the observations made by the
Hon'ble Apex Court in the judgment(s)
passed in the case of Dana Rajeshwari vs.
Bodavula Hanumayamma and Others;
reported in AIR 1997 SC 1541; Virender
Kumar Rai And Others vs. Union of
India And Others; reported in (2004) 13
SCC 463 and Trai Foods Ltd. vs.
National Insurance Co. And Others;
reported in (2004) 13 SCC 656, it is
provided that if the petitioner prefers the
revision within a period of 30 days, which
is the limitation prescribed for preferring
the revision assailing the order passed by
Prescribed Authority, the same shall be
decided on merits.

32. Till expiry of 30 days' period from
today, the Authority concerned shall not
proceed in the case as per the directions of
Prescribed Authority.
----------
(2023) 7 ILRA 1048
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

P.I.L. No. 390 of 2022

Nanhe Lal Kanaujia ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Saryu Prasad Tiwari, Alok Kumar Dixit

Counsel for the Respondents:
C.S.C., Ajay Kumar, Sarvesh Kumar Shukla,
Virendra Singh

Civil Law-The Constitution of India-1950Article 226- Public Interest Litigation Petition
to restrain the Opposite Party from destroying
the temple, cutting the green trees and making
illegal constructions on Gata No.256 & 257-Kha
which are recorded as Public utility land---
Malafide conduct of the petitioner of the PIL
concealing the relevant fact convinces the Court
to dismiss the PIL with the costs but if the
present PIL is dismissed with costs, the
appropriate and needful steps which have been
taken by the St. of U.P. to ensure that the public
utility land of the Gaon Sabhas of the entire
Uttar Pradesh is free from the encroachments
and the same be existed in a same manner as
has been indicated in the revenue record, would
be frustrated and the Competent concerning
officials would think that the PIL in question has
already been dismissed, therefore, there is no
need to abide by any of the directions issued in
the
aforesaid
PIL.
Therefore,
instead
of
dismissing the instant PIL with costs PIL finally
disposed
of
considering
the
proper
and
appropriate steps which have been taken on
behalf of the St. of U.P. making those steps,
modalities and informations as a part of this
order so that in future those steps etc. be
considered as an example--- All the Competent/
concerning Revenue Officers / Officials of the St.
of U.P. shall ensure that the public utility land of
the
Gaon
Sabhas
is
free
from
illegal
encroachment and as soon as the illegal
encroachment is noticed, such encroachment
shall be removed forthwith by adopting the due
process of law inasmuch as any illegal
encroachment over the public utility land of the
Gaon Sabha does not only create hindrance in
utilizing such land in a manner as has been
prescribed in the revenue records but it also
causes serious prejudice to the villagers at large
who genuinely and seriously bank upon on that
public utility land, e.g. pond, pasture land,
Chakmarg, Khad Gaddha, Khalihan, Banjar land
etc. which are beneficial for the entire village in
question. (Para 14 & 35) (E-15)

List of Cases cited:
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1049
1. Gurpal Singh Vs St. of Pun. & ors. (2005) 5
SCC 136

2. St. of Uttaranchal Vs Balwant Singh Chaufal &
ors. (2020) 3 SCC 402

3. Writ-C No.6658 of 2022; Rishipal Singh Vs St.
of U.P. & ors.and other connected writ petitions
reported in 2022 SCC OnLine All 829

4. Hinch Lal Tiwari Vs Kamala Devi, [2001 S.C.
3215]

5. Panna Lal Vs Dm Gautam buddh nagar [2009
(108) S.C. R.D. 481]

6. Jag Pal Singh Vs St. of Pun. & ors. [2011 S.C.
1123]

7. Om Prakash Verma Vs St. of U.P., [2014 (5)
A.D.J. 427 (DB)]

8. Jagat narain & ors. Vs St. of UP & ors. [2015
(3) A.W.C. 2579]

9. Dayaram Yadav & ors. Vs St. of UP & ors.,
2016 (6) A.D.J. 275 (DB)

10. Ram Laut Vs St. of U.P. & ors. [2016 (34)
L.C.D. 2458]

11. Ram Bihari Dwivedi Vs St. of U.P. & ors.
[2017 (135) RD 156]

12. Sri Raju Vs St. of U.P. & ors. [2020 (38) LCD
398]

13. Ghanshyam Verma Vs St. of U.P. [2021 (39)
LCD 2021]

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Shri Alok Kumar Dixit,
learned counsel for the petitioner, Shri
Shailendra Kumar Singh, learned Chief
Standing Counsel-II, Shri Yogesh Kumar
Awasthi, learned Standing Counsel for the
State-opposite parties and Shri Virendra
Singh, learned counsel for the private
opposite party Nos.6, 7 & 8. However, Sri
Ajay Kumar, learned counsel has accepted
notice on behalf of opposite party No.5 i.e.
the District Basic Education Officer,
Hardoi.

2. Notably, this Court has passed a
detailed and comprehensive order on
19.12.2022 considering the earlier orders
passed by this Court on 05.08.2022 and
29.08.2022 wherein the prayer of the
present Public Interest Litigation Petition
(here-in-after referred to as the 'PIL') has
been considered. Therefore, to understand
the grievance of the petitioner which has
been considered by this Court in earlier
orders, the order dated 19.12.2022 is being
reproduced here-in-below:-

"Heard learned counsel for the
parties.

The present petition has been
filed in the nature of Public Interest
Litigation in relation to Gata Nos. 256 and
257 recorded as public utility land in
revenue records of Village Tendua, Tehsil-
Bilgram, District- Hardoi.

In the petition, it has been stated
that the private opposite party Nos. 6 to 8
have destroyed the temple situated in the
village
as
also
raised
constructions
illegally on the said Gatas and also cut
certain trees.

Considering the averments made
in the writ petition as also the reliefs
sought, this Court on 14.07.2022 directed
the State counsel to seek instructions in the
matter and thereafter, considering the
instructions made available by the officer
concerned, this Court on 05.08.2022
directed the District Magistrate- Hardoi to
file
his
personal
affidavit
and
in
compliance
thereof,
the
District
Magistrate, Hardoi filed his personal
affidavit, which was taken on record on
29.08.2022 and on the same date, the
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner also filed supplementary affidavit
and after considering the entire facts and
circumstances of the case, this Court on
29.08.2022, passed the following order:-

"Heard.

On 05.08.2022, following order
was passed:

"1. Written instructions provided
by learned Additional Chief Standing
Counsel is taken on record.

2. Heard learned counsel for the
petitioner and learned Standing Counsel.

3. The present petition in the
nature of Public Interest Litigation has
been filed with the following main prayer:-

"(i) Issue a writ, order or
direction in the nature of mandamus
commanding the Opposite Party Nos.2, 3, 4
and 5 to restrain the Opposite Party Nos.6,
7 & 8 from destroying the temple, cutting
the green trees and making illegal
constructions of Guesthouse and shops on
Gata No.256 & 257-Kha, which are
recorded as Public utility land in the
revenue record.

(ii) Issue a writ, order or
direction in the nature of mandamus
directing the Opposite Party Nos.2, 3, 4 &
5 to conduct inquiry against the Opposite
Party Nos.6, 7 & 8 with regard to occupy
of public utility land."

4. In pursuance of the earlier
order dated 14.07.2022, instructions are
placed by Mr. Upendra Singh, Additional
Chief Standing Counsel, duly signed by Sub
Divisional Officer, Tehsildar, Revenue
Inspector and Area Lekh Pal, Bilgram,
District Hardoi. In the said instructions, it
is mentioned that temple in question was
150 years old and said temple was
constructed on the Abadi land i.e. Gata
No.257-Kha.
The
Gata
No.256
was
recorded in the name of Ram Janki Temple
and Gata No.257 is recorded as Abadi,
Gata No.253 is recorded as public way and
Gata No.235-Kha is recorded as Usar
Land. In the said instructions, it is also
mentioned that temple in question was
situated over Gata No.257-Kha, which was
recorded as Abadi, therefore, it was
demolished by the Village Pradhan with the
intention to construct new Ram Janki
Temple at Gata No.256. It is also
mentioned that any encroachment is being
made by the Village Pradhan by raising his
personal building at Gata No.257 and one
Lord Shiva Temple is situated over Gata
No.257 Kha.

5. It is also mentioned in the
aforesaid report that illegal construction of
Gyanedra Pratap Singh, present Village
Pradhan is found in Gata No.235 Kha
recorded as Usar Land, hence, the
proceeding
for
removal
of
the
encroachment has been initiated. It is also
mentioned that no any illegal cutting of the
tree is found from the land recorded in the
name of Gram Sabha and village pradhan
has removed some tree situated in Gate
No.256.
The relevant part of the
aforesaid report is reproduced as under:-

ßekuuh;
mPp
U;k;ky;
bykgkckn]
y[kuÅ [k.MihB y[kuÅ esa ;ksftr fjV ;kfpdk
la[;k&390@2022 1⁄4ih0vkbZ0,y01⁄2 uUgsyky dukSft;k
cuke m0iz0 ljdkj ,oa vU; ds vuqikyu esa LFkyh;
,oa vfHkys[kh; lR;kiu fd;k x;kA tkap vk[;k
fuEuizdkj gSA

jktLo xzke rsUnqvk ijxuk eYykoka o
rglhy fcyxzke dh xkVk la[;k&256 1⁄4jketkudh
eafnj1⁄2]
257[k
1⁄4vkcknh1⁄2]
235[k
1⁄4Ålj1⁄2
]
2551⁄4ckx&la0Hkw01⁄2] 2531⁄4ekxZ1⁄2] 2341⁄4ukyk fefYd;r
ljdkj1⁄2 ds uke ls xzke [krkSuh esa ntZ Hkwfe;ka gS
1⁄4layXud&011⁄2A xkVk la[;k 257@0-051 gs0 ij tks
vkcknh ds uke ntZ vfHkys[k gS ij jketkudh eafnj
yxHkx 150 o"kZ iqjkuk cuk gqvk Fkk] ftls orZeku xzke
iz/kku }kjk fxjkdj jketkudh eafnj ds uke xkVk
la[;k 256@0-1120 gs0 ij tks jketkudh eafnj ds
uke ntZ vfHkys[k gS] u;k jketkudh eafnj cuk;k
x;k gSA ;g Hkh voxr djkuk gS fd iqjkuk eafnj ftl
vkcknh dh xkVk la[;k 257 esa cuk gqvk FkkA ogka ij
orZeku xzke iz/kkUk }kjk dksbZ voS/k futh fuekZ.k ugha
fd;k tk jgk gSA xkVk la[;k 257 dh Hkwfe esa NksVk
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1051
lk egknso eafnj cuk gqvk gSA xkVk la[;k 257 dh
'ks"k Hkwfe esa uofufeZr eafnj ds lgu esa mi;ksx dh tk
jgh gSA xkVk la[;k 235 [k 1⁄4Ålj1⁄2 esa KkusUnz izrki
flag iq= jketh dukSft;k dk iDdk voS/k fuekZ.k ik;k
x;k] ftlds fo:) m0iz0jk0la0 2006 dh /kkjk 67 ds
rgr dk;Zokgh U;k;ky; rglhynkj fcyxzke tuin
gjnksbZ ds U;k;ky; esa dj nh x;h gS ftldh okn
la[;k Vh0202210330303532 gSA blds vfrfjDr mDr
lkoZtfud mi;ksx dh Hkwfe;ksa ij dksbZ voS/k fuekZ.k
ugha ik;k x;kA mDr lqjf{kr xkVksa dh Hkwfe ls dksbZ
isM+ dk dVku ugha gqvk gSA xkVk la[;k 255 ;kph o
vU; lg[kkrsnkjksa ds uke la0Hk0 ntZ vfHkys[k gS]
ftlesa [kM+s isM+ksa dk dVku gqvk gS] tks ;kph o vU;
lg[kkrsnkjksa dh futh Hkwfe gSA dkVs x;s isM+ lkekU;
Js.kh ds FksA xkVk la0 253@0-2150 gs0 ekSds ij fjDr
gS ftl ij vkokxeu lqpk: :i ls lapkfyr gSA
utjh uD'kk layXu gSA 1⁄4layXud&021⁄2

vr% ;ksftr fjV&;kfpdk ds lEcU/k esa
;Fkk U;k;ksfpr dk;Zokgh fd;s tkus gsrq vuqns'k lsok esa
lknj izsf"kr gSAß

6. Considering the arguments of
learned counsel for the petitioner as well as
going
through
the
contents
of
the
instructions
placed
by
the
learned
Additional Chief Standing Counsel, the
District Magistrate, Hardoi is directed to
file his personal affidavit replying the
pleading of writ petition, within one week.

7. List this case on 29.08.2022 as
fresh for further order."

In compliance of the order of this
Court dated 05.08.2022, personal affidavit
of the District Magistrate has been filed by
the learned counsel for the State, which is
taken on record.

Counter affidavit filed by the
learned counsel for the opposite party No.5
is also taken on record.

Considering
the
instructions
quoted in the order dated 05.08.2022 and
the avements made in the personal affidavit
of the District Magistrate related to Gata
No.
257
it
is
provided
that
till
pronouncement of orders, parties are
directed to maintain status-quo regarding
Gata Nos. 256 and 257.

It is further directed that no
construction shall be raised over the
aforesaid Gata(s) by the parties to the
proceedings and the District Magistrate is
directed to ensure compliance of this
order."

After the aforesaid order(s), this
Court, on a query being put in Public
Interest Litigation No. 560 of 2022 (Sukroo
And Another v. State of U.P. and Others)
related
to
District-
Barabanki,
was
apprised that 4,675 cases of encroachment
are pending in District- Barabanki itself.

Considering the aforesaid as also
the pervasive problem of encroachment
over public utility land in entire State of
U.P., this Court is of the view that the
officers of the State should be sensitised
and also be apprised regarding the view of
the Hon'ble Apex Court as also of this
Court on the issue of illegal encroachment
and eviction of encroachers from the
Government land.

In the case of Hinch Lal Tiwari
v. Kamala Devi, [2001 S.C. 3215], the
Hon'ble Apex Court observed as under:-

"12. On this finding, in our view,
the High Court ought to have confirmed the
order of the Commissioner. However, it
proceeded to hold that considering the said
report the area of 10 biswas could only be
allotted and the remaining five biswas of
land which have still the character of a
pond, could not be allotted. In our view, it
is difficult to sustain the impugned order of
the High Court. There is concurrent finding
that a pond exists and the area covered by
it varies in the rainy season. In such a case
no part of it could have been allotted to
anybody for construction of house building
or any allied purposes.

13. It is important to notice that
the material resources of the community
like forests, tanks, ponds, hillock, mountain
etc. are nature's bounty. They maintain
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
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 of the
guaranteed right under Article 21 of the
Constitution. The Government, including
the Revenue Authorities i.e. Respondents 11
to 13, having noticed that a pond is falling
in disuse, should have bestowed their
attention to develop the same which would,
on one hand, have prevented ecological
disaster and on the other provided better
environment for the benefit of the public at
large. Such vigil is the best protection
against knavish attempts to seek allotment
in non-abadi sites.

14.
For
the
aforementioned
reasons, we set aside the order of the High
Court, restore the order of the Additional
Collector dated 25-2-1999 confirmed by
the
Commissioner
on
12-3-1999.
Consequently, Respondents 1 to 10 shall
vacate the land, which was allotted to them,
within six months from today. They will,
however, be permitted to take away the
material of the houses which they have
constructed
on
the
said
land.
If
Respondents 1 to 10 do not vacate the land
within
the
said
period
the
official
respondents i.e. Respondents 11 to 13 shall
demolish
the
construction
and
get
possession of the said land in accordance
with law. The State including Respondents
11 to 13 shall restore the pond, develop
and maintain the same as a recreational
spot which will undoubtedly be in the best
interest of the villagers. Further it will also
help in maintaining ecological balance and
protecting the environment in regard to
which this Court has repeatedly expressed
its concern. Such measures must begin at
the grass-root level if they were to become
the nation's pride."

In the case of Panna Lal vs Dm
Gautam buddh nagar [2009 (108) S.C.
R.D. 481], the Hon'ble Apex Court
observed as under:-

"In
these
circumstances,
the
Principal Secretary to Government of U.P.,
Revenue Department, State of U.P. is
hereby
directed
to
issue
necessary
directions to all the District Magistrates of
the State of Uttar Pradesh to ensure that
the encroachments on Chakroads, Drains
and other Public utility lands etc. are
removed immediately after Survey and
regular spot inspection by the Revenue
authorities. The District Magistrates of the
Districts shall direct the Sub Divisional
Magistrates or the Assistant Collectors to
act instantly on receiving the complaints
regarding encroachments on Chakroads,
Drains and Public utility lands etc. and
remove the encroachments on Chakroads,
Drains and Public utility lands etc.
immediately by making spot inspections
and after going through the relevant
records. The District Magistrates shall also
direct the Sub Divisional Magistrates and
Assistant
Collectors
to
decide
the
disputes/complaints
regarding
encroachments within a month from the
date
of
receipt
of
such
applications/complaints from any corner
and take stringent and strict action with the
help
of
the
Police
to
remove
the
encroachments.
The
Sub
Divisional
Magistrates and the Assistant Collectors
shall also make necessary and effective
arrangements to stop future encroachments
on Chakroads, Drains and Public utility
lands by keeping constant vigil."

In the case of Jag Pal Singh vs
State of Punjab and Others [2011 S.C.
1123], the Hon'ble Apex Court observed as
under:-

"22. Before parting with this case
we give directions to all the State
Governments in the country that they
should prepare schemes for eviction of
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1053
illegal/unauthorised occupants of the Gram
Sabha/Gram
Panchayat/poramboke/shamlat land and
these must be restored to the Gram
Sabha/Gram Panchayat for the common
use of villagers of the village. For this
purpose the Chief Secretaries of all State
Governments/Union Territories in India
are directed to do the needful, taking the
help of other senior officers of the
Governments. The said scheme should
provide for the speedy eviction of such
illegal occupant, after giving him a showcause notice and a brief hearing. Long
duration of such illegal occupation or huge
expenditure
in
making
constructions
thereon or political connections must not
be treated as a justification for condoning
this illegal act or for regularising the
illegal possession. Regularisation should
only be permitted in exceptional cases e.g.
where lease has been granted under some
government
notification
to
landless
labourers or members of the Scheduled
Castes/Scheduled Tribes, or where there is
already a school, dispensary or other
public utility on the land."

In the case of Om Prakash
Verma v. State of U.P., [2014 (5) A.D.J.
427 (DB)], this Court observed as under:-

"20. Thus, in case of failure by
the land management committee or local
authority to take action in accordance with
Section 112-B, the Collector is duty bound
to call upon the person concerned by
issuing notice to refrain for causing
damage or misappropriation, or to repair
the damage, or to make good the loss or
remove wrongful occupation and to pay
damages in case of illegal occupation. The
Collector has been empowered to act under
Rule 115-D on an application by the
Chairman and Member of Secretary of the
Land Management Committee or on a
report made by the Lekhpal under sub-rule
(3) of Rule 115-C, or on the report of local
authority concerned or its official or on
facts otherwise coming to his notice. Thus,
the provision contained in Rule 115-D (d)
is wide enough to permit any person to
move application to the Collector for
removal of unauthorized occupation from
the gaon sabha land.

21. On a combined reading of
Section 122-B, Rule 115-C and Rule 115D, we have no hesitation to hold that
U.P.Z.A & L.R. Act and Rules contain an
adequate and appropriate procedure and
statutory mechanism to take action not only
to evict the illegal occupants from gaon
sabha land but also to refrain any person
from
misappropriation
and
wrongful
occupation of all gaon sabha lands.

23. We have also come across in
various cases, the fact that even where
after conclusion of the proceedings under
Section 122-B of U.P.Z.A & L.R. Act, the
orders for eviction and recovery of
compensation
for
damages
or
misappropriation of gaon sabha land have
been passed by the authorities concerned,
the said orders are lying unattended and
the same are not being executed. We
cannot appreciate such state of affairs.

24. In view of the discussions
made and reasons given above, the instant
bunch of writ petitions is disposed of in the
following terms:-

1. The District Collectors and
other revenue authorities of the district
shall ensure that the statutory duty cast on
the Land Management Committee and the
local authority under Section 122-B (1) of
U.P.Z.A. & L.R. Act and Rule 115-C (1)
and (2) of the U.P.Z.A & L.R. Rules is
attended to in all seriousness.

2. The District Collectors shall
ensure that Lekhpal of the area concerned
attends his duty cast on him under sub-rule
(3) of Rule 115-C of U.P.Z.A & L.R. Rules,
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
inasmuch as, the Lekhpal will report to the
Collector through Tehsildar all cases of
wrongful occupation of damage to; or
misappropriation
of
the
wrongful
occupation of the gaon sabha property as
soon as they come to his notice and in any
case after the conclusion of Kharif and
Rabi Partal every year.

3. The District Collectors shall
also ensure that Tehsildar of the area
concerned shall satisfy himself in the month
of May every year that each Lekhpal has
submitted reports as envisaged under subrule (3) of Rule 115-C of U.P.Z.A & L.R.
Rules.

4. The District Collectors are
also directed to take action in accordance
with the provision of Rule 115-D in case of
failure on the part of Land Management
Committee or the local authority, as the
case may be.

5. The Assistant Collector, within
whose jurisdiction any illegal occupation
or damage or misappropriation of gaon
sabha land is reported, shall immediately
institute the proceedings and conclude the
same in accordance with law. The Assistant
Collector (who in accordance with para
315 of Revenue Manual is the Tehsildar of
the area concerned) shall not only institute
the
proceedings
on
information
received/application made under Section
122-B (1) of U.P.Z.A & L.R. Act by Land
Management Committee or the local
authority concerned but will also act on an
application moved otherwise by any person
alleging therein illegal occupation on and
damage caused to gaon sabha land and
will conclude the same in accordance with
law with expedition.

6. The District Collectors are
also directed to ensure that once the order
for eviction or payment of compensation as
damages is passed, the same is executed at
the earliest, in appropriate cases by using
such
force
as
may
be
necessary.
Realization of the amount of compensation
for damage, misappropriation or wrongful
occupation of gaon sabha land shall also
be made from the person concerned as
arrears of land revenue expeditiously.

7. So far as the illegal possession
of the housing sites alloted to the
individuals is concerned, we may refer to
the provision contained in Section 122-D,
which provides a complete procedure for
restoration of possession of land allotted to
any person for the purposes of building of
house and on such land any person other
than the allottee is in occupation. Under
Section 122-D, as well, the Assistant
Collector has been empowered to take
action for restoration of the possession to
the allottee of the land allotted for housing
purpose, if the same is in illegal occupation
of any other person.

8. Sub-section (2) of Section 122D of U.P. Z.A. & L.R. Act provides that a
person having been once evicted under
Section 122-D (1) is liable to be punished
with imprisonment for a term which may
extend to two years and which shall not be
less than three months and also with fine
which may extend to three thousand rupees.
Thus, in case any person re-occupies the
land allotted as housing site, after once
being evicted, he can be proceeded against
by launching criminal prosecution under
Section 122-D (2) of the Act. The District
Collectors
shall
ensure
that
besides
eviction proceedings under Section 122-D,
criminal proceedings are also instituted
against such persons.

25.
In
view
of
aforesaid
observations/directions,
all
the
writ
petitions are finally disposed of with a
further direction to the District Collectors
and other revenue authorities of the district
to take appropriate action and to act in
accordance with the observations made in
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1055
this judgment and the provisions contained
in U.P. Z.A. & L.R. Act and the Rules
framed thereunder. The mechanism evolved
under the Government Orders referred to
hereinabove for monitoring the eviction
proceedings and implementation of the
orders of eviction shall continue."

In the case of Jagat narain and
Others vs State of UP and Others [2015
(3) A.W.C. 2579], this Court observed as
under:-

"29. With respect, we find that the
view of the learned Single Judge holding
that an order for eviction can be substituted
by an order for the payment of damages in
lieu of eviction is not consistent with law.
In Budhaee (supra), the learned Single
Judge was of the opinion that if on a ''small
portion' of 100 to 200 sq. metres of land
belonging to the Gaon Sabha, a person has
constructed his house and the land is not
reserved for any other public purpose and
the house is in existence for long time, it
would not be proper to direct eviction of
the occupant. In Sukhdeo (supra), the
learned Judge observed that if a person is
in possession for more than 12 years,
instead of eviction, an award of damages
would be the appropriate relief. In Siya
Ram (supra), the view of the learned Single
Judge was that if the petitioner or any
other person, who is a party to the
proceedings, has constructed a house over
a small portion of the land ad-measuring
about 200 to 300 sq. mts. and the house is
in existence for about 10 years, the Court
may consider settling of the land over
which the house is constructed by the
occupant, on payment of market value of
the land at the time of occupation. We have
already
indicated
our
reasons
for
disapproving this statement of law in the
judgments of the learned Single Judge. The
Act has not contemplated any such period
nor has the Act carved out any such
category in sub-section (4-F) of Section
122-B.

30. For these reasons, we answer
the reference as follows:

(i) The law laid down by the
learned Single Judge in the decisions in
Ajanta Udyog Mandal Vidyalay (supra),
Budhaee (supra), Sukhdeo (supra), Kishore
Singh (supra) and Siya Ram (and other
decisions following the same line) do not
reflect the correct position in law and those
decisions are hence overruled;

(ii) A person against whom an
order of eviction has been passed under
Section 122-B would not be entitled to a
protection against eviction on the grounds
which have weighed with the learned
Single Judges in the above cases. Once the
legislature has, by enacting a specific
provision in sub-section (4-F) of Section
122-B, made a specific statutory provision
which overrides the other preceding subsections of Section 122-B, it would not be
open for the Court in the exercise of its
extraordinary jurisdiction under Article
226 of the Constitution, to create a new
legislative
category
and
to
issue
a
mandamus contrary to law;

(iii) The decision in Sukhdeo
(supra) to the effect that if a person is in
possession for more than 12 years, instead
of eviction, an award of damages would be
the appropriate relief, does not express the
correct position in law. No such provision
has been made by the legislature and it
would not be open for the Court to
introduce a new legislative category or to
introduce a period of limitation as was
purported to be done in the decisions of the
learned Single Judge noted above.

31. The reference to the Division
Bench is, accordingly, answered. The writ
petition shall now be placed before the
regular Bench according to the roster of
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
work for disposal in the light of the
reference as answered."

In the case of Dayaram Yadav
and Others vs State of UP and Others,
2016 (6) A.D.J. 275 (DB), this Court
observed as under:-

"5. Hence, we are of the view that
within a period of one month from today,
the Principal Secretary (Revenue) shall
take all necessary steps to circulate a copy
of the judgment and order of this Court
dated 28 May 2014 and this judgment to all
the District Collectors. The problem shall
be addressed at various levels. Firstly,
where there are complaints of unauthorized
encroachments, these complaints must be
duly registered by the District Collectors
and steps have to be initiated to deal with
the encroachments on public utility lands in
accordance with law. In order to ensure
transparency
in
administration,
the
Principal
Secretary
(Revenue)
will
formulate guidelines that would ensure that
all
complaints
of
unauthorized
encroachments are registered. The details
of the complaints must be maintained in a
manner which is open for public inspection
so that citizens are enabled to know the fate
of the complaints and the proceedings
which have been initiated. Secondly, the
process of initiating proceedings under
Section 67 must be streamlined so that the
complaints are enquired into expeditiously
and proceedings are adopted with due
process of law and are concluded without
delay. The circular shall also make
provision for laying down time lines for
redressal of complaints, completion of
enquiries and steps to be taken for
enforcement.
The
Principal
Secretary
(Revenue) is directed to highlight the
mandate of Rule 67 (6) referred to above.
Thirdly, where orders have been passed
under Section 67 (or as the case may be in
earlier proceedings under Section 122-B),
it is necessary that compliance of orders
should be duly made under the applicable
provisions of law.

6. Non-enforcement of orders
under Section 122-B or, as the case may
be, under Section 67 is also a serious
matter since it amounts to dereliction of
duties on the part of the administration to
enforce compliance of the orders for the
removal of unauthorized encroachments.
Undoubtedly, the persons who are affected
by proceedings and orders, are entitled to
pursue their rights and remedies in
accordance with law. Hence, when these
issues repeatedly come before this Court, a
direction is issued for the purpose of
verifying whether the order continues to
hold the field or is subject matter of any
other proceedings before a revisional
forum. Where stay has been granted and
where revisional remedies are pursued, the
matter must be brought to expeditious
conclusion. These guidelines which we
have laid down, in addition to those of the
judgment of the Division Bench in Om
Prakash Verma (supra), are by way of
guidelines to the Principal Secretary
(Revenue) who is the head of the
administration in such matters and matters
pertaining to revenue. We now expect that
the Principal Secretary shall duly apply his
mind, preferably within a period of two
months from today of the need to lay down
a complete plan of action to ensure
accountability on the part of the district
administration and to ensure transparency
in governance. The State is passing through
a severe drought as a result of depletion of
groundwater resources. Much of this
situation
is
a
result
of
rampant
encroachments of the spaces which are
earmarked for public utility purposes,
including green areas, pasture lands and
ponds etc. Unless serious steps are taken to
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1057
remedy the situation, the situation will
become more serious than the present.

7. In these circumstances, this
Court would be constrained to reiterate the
guidelines which were issued in Om
Prakash Verma (supra) and to further
direct the State to strengthen the procedure
for enforcement so as to secure the interest
of the public.

8. Insofar as the two lists
(Annexure-14 and 15) are concerned, we
direct the Collector and District Magistrate
to cause a due verification of the facts
which are set out in the writ petition.
Where proceedings are pending, they shall
be concluded expeditiously. Where orders
have been passed and are awaiting
enforcement, the district administration
shall take necessary steps in accordance
with law after verifying that the orders
continue to hold the field and have not been
stayed or modified by any higher forum."

In the case of Ram Laut vs State
of U.P. and Others [2016 (34) L.C.D.
2458], this Court observed as under:-

"8. Without entering into merits
of the case, am of the considered view that
the petitioner being complainant cannot be
necessary
or
proper
party
in
the
proceedings initiated under section 122-B
U.P.Z.A.&L.R.
Act
or
the
revision
preferred thereafter and on that basis file
the instant writ petition. He cannot be said
to be a ''person aggrieved'."

In the case of Ram Bihari
Dwivedi vs State of U.P. and Others [2017
(135) RD 156], this Court observed as
under:-

"15. It is settled law that a valid
survey must necessarily be made on the
basis of fixed points. No fixed points are
mentioned either in the report or in the
map prepared after the alleged survey.
Moreover, the map does not contain any
measurements. The report therefore was
not in accordance with law and could not
be the basis of the impugned order.

16. Accordingly, I set aside the
impugned order dated 02.06.2006 and
remand the matter back to the revisional
Court, the Chief Revenue Officer to ensure
that a proper survey is conducted on the
basis of fixed points and after recording the
measurements made during the survey, in
the map.

21. Writ petition no. 37953 of
2006 is allowed and the matter is remanded
to the Chief Revenue Officer to proceed in
accordance with the directions contained in
the body of the judgment."

In the case of Sri Raju vs State of
U.P. and Others [2020 (38) LCD 398], this
Court observed as under:-

"14. Merely because a person
lower
in
order
of
preference
has
encroached upon Gaon Sabha land, he
cannot and should not be granted the
benefit of Section 67A unless and until he is
in a position to establish categorically that
a person higher in preference is not
available
in
the
village. Any other
interpretation of Section 67A would result
in great injustice as an unauthorized
occupant would be liable to be granted its
benefit only on account of him or her
having illegally encroached upon Gaon
Sabha property, despite other needier and
persons
higher
in
preference
being
available in the village.

15.
Therefore,
and
for
the
reasons
given
above,
this
Court
is
constrained to hold that not only is the land
in issue in this writ petitions not land
governed by Section 63 of the Code, as it
has not been reserved for allotment as
abadi site, the petitioners are also, prima
facie, not eligible to the benefit of Section
67A as their applications are bereft of
necessary pleadings. Therefore on both
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
counts the benefit of Section 67A cannot be
extended to the petitioners."

In the case of Ghanshyam Verma
vs State of U.P. [2021 (39) LCD 2021], this
Court observed as under:-

"20. In the present case the
proceedings were drawn against the
opposite party No. 5 with respect to
'Naveen Parti' land which is vested in Gaon
Sabha, however, the notice was withdrawn
on the ground that the opposite party No. 5
did not encroach over the land. Every
member of Gram Panchayat has a right of
user over Gaon Sabha land subject to the
provisions of law in this regard, which is
for the benefit of its members. It is also the
duty of every member not only not to
encroach but also to see that it is not
encroached upon by others to protect the
interest of the Gaon Sabha. The petitioners
being members of the Gaon Sabha and the
land being 'Naveen Parti' vested in Gaon
Sabha, which they allege to have been
encroached
upon
would
be
'person
aggrieved' from the order of the Assistant
Collector by which the notice issued to the
alleged encroacher has been withdrawn as
by encroachment of Gaon Sabha land the
benefits which the members of the Gaon
Sabha may be legally entitled to receive,
would be deprived of that entitlement."

In view of the aforesaid, the
Principal
Secretary/Additional
Chief
Secretary, Revenue, shall file an affidavit
within eight weeks on the following points:-

(i) The number of pendency of
cases pertaining to encroachment of Gaon
Sabha land in entire state of U.P. and the
total area involved therein.

(ii) The reasons for not deciding
the
pending
cases,
related
to
encroachment, instituted after enforcement
of U.P. Revenue Code, 2006 in stipulated
time i.e. 90 days provided under U.P.
Revenue Code Rules, 2016 framed under
U.P. Revenue Code, 2006 as also the
reasons for not concluding the proceedings
of cases of the same nature instituted under
the provisions of U.P. Z.A.& L.R. Act and
Rules made thereunder.

(iii) The suggestions related to
early disposal of cases pertaining to
encroachments.

(iv) What action has been taken
against the erring revenue officials for not
taking
proper
action
regarding
the
encroachments over Gaon Sabha/Public
Utility Land in due time.

For the aforesaid, the Principal
Secretary/Additional
Chief
Secretary,
Revenue is expected to take note of the
relevant statutory provisions viz. Sections
122B(1) and 122D(1) of U.P. Z.A.&L.R.
Act; Rule(s) 115A(1), 115C, 115D, 115F
and 115J of U.P. Z.A.&L.R. Rules; Rule 47
of Panchayat Raj Rules; Chapter II,
Chapter A-V and Chapter XXXVII of Land
Record Manual; Section 60, 61 and 67 of
U.P. Revenue Code, 2006 read with the
Rules framed thereunder, Govertnments
Orders on the issue and also the judgments,
referred above.

So far as the interim order dated
29.08.2022 passed by this Court is
concerned, the same is modified in
following terms:-

(i) No further damage shall be
caused to Old Ram Janki Temple.

(ii) Construction of New Ram
Janki Temple be completed as per the
norms settled under the supervision of Sub
Divisional Magistrate, Tehsil- Bilgram,
District- Hardoi.

(iii)
A
detailed
enquiry
be
conducted regarding demolition of Old
Ram Janki Temple by District Magistrate
and submit the report to this Court by the
next date of listing.

(iv) District Magistrate shall also
apprise this Court about the feasibility of
7 All. Nanhe Lal Kanaujia Vs. State of U.P. & Ors.
1059
restoration/construction of Old Ram Janki
Temple.

(v) The Revenue Officials shall
not permit any encroachment over the
Gatas, in issue.
List/put up this case on 15.02.2023 within
top five cases.

Senior Registrar of this Court is
directed to send a copy of this order to the
Chief Secretary, State of U.P."

3. In compliance of the directions of
this Court issued in the order dated
05.8.2022, the District Magistrate, Hardoi
has
filed
a
personal
affidavit
on
29.08.2022.
Further,
the
District
Magistrate, Hardoi has also filed a short
counter affidavit dated 15/16.02.2023 to
apprise the Court that the directions being
issued by this Court in the present PIL have
been followed in its letter and spirit.
Besides, the relevant documents/ revenue
records and the coloured photographs of
the site in question have been filed to show
the bonafide of the Competent Revenue
Officers/ Officials. Not only the above, the
personal
affidavit
of
the
Principal
Secretary,
Department
of
Revenue,
Government of U.P., Lucknow has been
filed on 16.02.2023.