# Raje Lal Uttam v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-11
- **Case number:** Writ C No. 18359 of 2022
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raje-lal-uttam-v-state-of-u-p-ors-48732
- **Pages:** 5

## Headnote

A. Civil Law-U.P. Revenue Code, 2006Sections 67& 67(A)- Encroachment of public
land-petitioner
was
found
to
be
illegal
encroachment over the disputed parcels of landPetitioner invoked the protection of 67(A) of the
Code on the footing that his residential house
was erected 55 years ago and that a residential
patta was granted to his predecessors.-Court
below neglected to consider the facts-Courts in
proceedings under section 67 of Code are under
obligation of law to decide the eligibility of the
notice for protection under Section 67(A) of the
Code-Failure of courts below to enquire into the
validity of the defence of the petitioner has
resulted into a miscarriage of justice-Impugned
order set aside.(Para 1 to 22)

B. Section 67(A) of the Code confers rights on
certain people who have encroached upon
public land. The person who seeks protection of
8 All. Raje Lal Uttam Vs. State of U.P. & Ors.
161
Section 67(A) of the Code should be in the
category of persons referred to in Section 63 of
the Code. The house of such persons should be
existing in the disputed parcels of land on or
before 29 November 2012.(Para 13)

The petition is allowed. (E-6)

## Text

160 INDIAN LAW REPORTS ALLAHABAD SERIES
on 12.3.2014. Petitioner Ashok Kumar
was his grandson. However, it was his
specific case noted in paragraph 3 (of the
order dated 20.7.2016 passed in that case),
that the father of Ashok Kumar had predeceased his father. Similarly, in Sunil
Kumar Yadav (supra), in paragraph 3 of
the order dated 3.9.2020, it was specifically
recorded, Hausila Prasad (father of that
petitioner) had pre-deceased his father
Sitaram Yadav, the duly appointed fair price
shop agent in that case. In Akansha Singh
(supra), again, father of that petitioner had
pre-deceased his father. In paragraph 3 of
that report, it has been noted, the grand
father of the petitioner Dharam Pal Singh
died on 31.12.2020. He was survived by
that petitioner's grand mother, mother and
sister (but not father).

11. Thus, in all cases, relied upon by
learned counsel for the petitioner, father of
all those petitioners had pre-deceased their
father, who happened to be the deceased
fair price shop agent. Thus, the question
whether those petitioners were dependent
on their respective father, on the date of
their claim being made, did not arise. In
fact, each of those petitioners claimed to be
wholly dependent on their grand father, for
the reason of prior death of their own
father.

12. Even otherwise, it is not for the
Court to legislate or frame policy decisions.
Once, the policy is not shown to include a
grandchild in the definition of family of a
fair price shop agent, that rule (in law) may
never arise on the strength of indulgence
granted by the Court in individual facts of a
case.

13. On account of the above, the
decisions relied are found to be wholly
distinguishable.There is no substance in the
claim of the petitioner. The same has been
rightly rejected.

14. Writ petition lacks merit and is
accordingly dismissed. No order as to
costs.
----------
(2022) 8 ILRA 160
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ C No. 18359 of 2022

Raje Lal Uttam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Himanshu Raghav Pandey, Sri Ram
Kishore Pandey

Counsel for the Respondents:
C.S.C., Sri Hari Narayan Singh, Sri S.K.
Pandey, Sri S.N. Pandey

A. Civil Law-U.P. Revenue Code, 2006Sections 67& 67(A)- Encroachment of public
land-petitioner
was
found
to
be
illegal
encroachment over the disputed parcels of landPetitioner invoked the protection of 67(A) of the
Code on the footing that his residential house
was erected 55 years ago and that a residential
patta was granted to his predecessors.-Court
below neglected to consider the facts-Courts in
proceedings under section 67 of Code are under
obligation of law to decide the eligibility of the
notice for protection under Section 67(A) of the
Code-Failure of courts below to enquire into the
validity of the defence of the petitioner has
resulted into a miscarriage of justice-Impugned
order set aside.(Para 1 to 22)

B. Section 67(A) of the Code confers rights on
certain people who have encroached upon
public land. The person who seeks protection of
8 All. Raje Lal Uttam Vs. State of U.P. & Ors.
161
Section 67(A) of the Code should be in the
category of persons referred to in Section 63 of
the Code. The house of such persons should be
existing in the disputed parcels of land on or
before 29 November 2012.(Para 13)

The petition is allowed. (E-6)
(Delivered by Hon'ble Prakash Padia, J.)

1. Today when the matter is taken up,
Sri S.K. Pandey Advocate along with Sri
S.N. Pandey, Advocate filed Vakalatnama
on behalf of Reetesh Kumar Uttam along
with impleadment application for him
impleadment as respondent No.5 in the
petition.

2. The impleadment application is
supported by an affidavit. Cause shown is
sufficient.

3. The impleadment application is
allowed.

4. Learned counsel for the applicants
is permitted to implead Reetesh Kumar
Uttam as respondent No.5 in the petition
during the course of the day.

Order on the Petition:-

5. Heard Sri Ram Kishore Pandey,
learned counsel for the petitioner, learned
Standing Counsel for the respondents
No.1 to 3-State, Sri Hari Narayan Singh,
learned counsel for the respondent No.4Gaon Sabha and Sri S.K. Pandey
Advocate along with Sri S.N. Pandey,
learned counsel for respondent No.5

6. By the impugned order dated
22.01.2021 passed by the respondent
No.3-Tehsildar
(Judicial)/Assistant
Collector
1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar
rendered
in
proceedings registered as Suit No.03062
of
2019,
Computerized
Suit
No.T201903410403062 (State of U.P. Vs.
Raje Lal) under Section 67 of the Uttar
Pradesh Revenue Code, 2006 (hereinafter
referred to as the 'Code'), the petitioner
was found to be illegal encroachment
over the disputed parcels of land. The
learned
appellate
court/Additional
District Magistrate (Judicial), Kanpur
Nagar by the impugned order dated
20.07.2021 agreed with the findings of
the
learned
trial
court/Tehsildar
(Judicial)/Assistant Collector 1st Class,
Tehsil-Narwal, District-Kanpur Nagar,
and
affirmed
its
judgement
dated
22.01.2021.

7. Learned counsel for the petitioner
contends that the ancestors of the
petitioner were allotted a residential patta
over the disputed parcels of land. The
predecessors in interest of the petitioner
had erected a residential house on the
disputed parcels of land almost 55 years
ago. This fact was confirmed in the report
submitted by the Lekhpal which is
appended as annexure 4 to the writ
petition. The learned courts below erred
in law and entered perverse findings by
failing to consider the aforesaid defence
as well as corroborative evidence in that
regard. The petitioner is entitled to the
protection of Section 67(A) of the Code.

8. A perusal of the impugned order
dated 22.01.2021 and the order dated
20.07.2021 corroborates the submission of
learned counsel for the petitioner.

9. The aforesaid facts could not be
disputed by the learned Standing Counsel
for the respondents No.1 to 3-State, Sri
Hari Narayan Singh, learned counsel for
the respondent No.4-Gaon Sabha and Sri
162 INDIAN LAW REPORTS ALLAHABAD SERIES
S.K. Pandey Advocate along with Sri S.N.
Pandey, learned counsel for respondent
No.5.

10. The petitioner had clearly invoked
the protection of 67(A) of the Code on the
footing that his residential house was erected
55 years ago and that a residential patta was
granted to his predecessors. The learned courts
below neglected to consider the aforesaid facts
and defences raised by the petitioner. This
reflects non application of mind.

11. Adverting to the eligibility of the
petitioner for protection under Section 67(A)
of the Code and the rights purportedly
accruing to him thereunder, the appellate court
held that it was open to the petitioner to take
out proceedings under Section 67(A) of the
Code for grant of appropriate relief as claimed
by him. After noticing the aforesaid facts, the
appellate court agreed with the judgment of
the trial court and dismissed the appeal. The
trial court did not return any finding on this
issue.

12. 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 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
8 All. Raje Lal Uttam Vs. State of U.P. & Ors.
163
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

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 been built
by the occupant thereof and where the
occupants are members of one family by the
head of that family. "

13. Section 67(A) of the Code confers
rights
on
certain
people
who
have
encroached
upon
public
land.
The
prerequisite conditions 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 in the disputed parcels of land on
or before 29 November 2012.

14. In many instances, as indeed in
the present case, the 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.

15. 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
164 INDIAN LAW REPORTS ALLAHABAD SERIES
inconsistent judgments. There will also be
an avoidable delay in decision of the
controversy and may even result in
miscarriage of justice.

16. 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.

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

18. 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.

19. In the wake of preceding
discussion, the impugned order dated
22.01.2021 and the order dated 20.07.2021
are vitiated and contrary to law.

20. The order dated 22.01.2021
passed by the respondent No.3-Tehsildar
(Judicial)/Assistant Collector 1st Class,
Tehsil-Narwal, District-Kanpur Nagar and
the order dated 20.07.2021 passed by the
learned appellate court/Additional District
Magistrate (Judicial), Kanpur Nagar, are
liable to be set aside and are set aside.

21. The matter is thus remitted to the
respondent
No.3-Tehsildar
(Judicial)/
Assistant Collector 1st Class, TehsilNarwal, District-Kanpur Nagar for a fresh
determination
consistent
with
the
observation made in this judgment.

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

(1) The petitioner shall file a
fresh application under Section 67(A) of
the Code before the respondent No.3Tehsildar (Judicial)/Assistant Collector 1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar within a period of one month from
the date of production of a certified copy of
this order.

(2)
The
respondent
No.3Tehsildar (Judicial)/Assistant Collector 1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar, shall register the proceedings under
Section 67(A) of the Code upon submission
of such application.

23. The writ petition is allowed to the
extent indicated above.
----------
(2022) 8 ILRA 164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 20356 of 2022

Hariraj Singh Choudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajendra Prasad Singh, Sri Nirankar
Singh