# Rama Shankar v. State Of U.P. Through its Secretary & others

- **Citation:** (2011) 3 ILRA 1488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-07
- **Case number:** Civil misc. Writ Petition No. 70199 of 2011
- **Bench:** Syed Rafat Alam, C. J. Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shankar-v-state-of-u-p-through-its-secretary-others-42089
- **Pages:** 10

## Headnote

Constitution of India, Article 226-Public
Interest
Litigation-removal
of
encroachment upon Gaon Sabha landcomplete
machinery
provided
in
statutory Act itself-under section 122-B
L.M.C. Responsible to take appropriate
action-and the Lekhpal of concern village
under Rule 115-Responsible to report
after Rabi and Kharif crops of every yearapart
from
that
word
"otherwise"
indicate any complaint by any person
received by S.D.O. Is duty bound to hold
enquiry-petitioner
to
make
comprehensive Representation to Asst.
Collector for taking appropriate actionpetition disposed of.

Held: Para 14

In view of above legal position, we are of the
view that the appropriate remedy for the
petitioner herein is to file a comprehensive
application/representation giving all details
before the Assistant Collector concerned
with regard to such encroachment as alleged
herein and on receipt of such complaint, the
3 All] Rama Shankar V. State Of U.P. Through its Secretary & others
1489
Assistant Collector is directed to proceed in
accordance with the provisions of the Act
of
1950
and
the
Rules
framed
thereunder, and after making necessary
enquiry and affording opportunity of
hearing
to
all
concerned,
take
appropriate decision expeditiously.

## Text

1488 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Education, etc. the existing eligibility
norms
prescribed
by
the
State
Governments
and
other
school
managements shall be applicable till such
time the NCTE lays down the minimum
qualifications in respect of such teachers.

12. It is stated by learned counsel for
the NCTE that 3rd November, 2001 in
paragraph 5(b) of the said notification had
been wrongly mentioned and the date
should be 3rd September, 2001.

13. It is, therefore, clear that it is
only those candidates who have obtained
the B.Ed. Degree in one year/Two years
Diploma
in
Elementary
Education/Diploma in Education (Special
Education)/Four
Years
Bachelor
of
Elementary Education, who can be
considered eligible under the notification
and, therefore, can appear at the U.P.-
TET.

14. It is pointed out by learned
counsel for the respondents that persons
who obtain the Diploma in L.T. are not
eligible for appointment as Assistant
Teacher in the School and, therefore, it is
not necessary for them to appear at the
U.P.-TET.
The
contention
of
the
petitioner that Diploma in L.T. should be
treated at par with the B.Ed. Degree of
one year cannot be accepted.

15. Such being the position, the
petitioner is not eligible to appear at the
U.P.-TET
examination
scheduled
to
commence from 13th November, 2011.

16. The petition is, accordingly,
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2011

BEFORE
THE HON'BLE SYED RAFAT ALAM, C. J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil misc. Writ Petition No. 70199 of 2011

Rama Shankar

 ...Petitioner
Versus
State Of U.P. Through its Secretary &
others

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Ojha
Sri Bijendra Kumar Mishra

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Public
Interest
Litigation-removal
of
encroachment upon Gaon Sabha landcomplete
machinery
provided
in
statutory Act itself-under section 122-B
L.M.C. Responsible to take appropriate
action-and the Lekhpal of concern village
under Rule 115-Responsible to report
after Rabi and Kharif crops of every yearapart
from
that
word
"otherwise"
indicate any complaint by any person
received by S.D.O. Is duty bound to hold
enquiry-petitioner
to
make
comprehensive Representation to Asst.
Collector for taking appropriate actionpetition disposed of.

Held: Para 14

In view of above legal position, we are of the
view that the appropriate remedy for the
petitioner herein is to file a comprehensive
application/representation giving all details
before the Assistant Collector concerned
with regard to such encroachment as alleged
herein and on receipt of such complaint, the
3 All] Rama Shankar V. State Of U.P. Through its Secretary & others
1489
Assistant Collector is directed to proceed in
accordance with the provisions of the Act
of
1950
and
the
Rules
framed
thereunder, and after making necessary
enquiry and affording opportunity of
hearing
to
all
concerned,
take
appropriate decision expeditiously.

(Delivered by Hon'ble S.R. Alam, C.J.)

1. In the instant petition, filed as
public interest litigation, the petitioner has
invoked the writ jurisdiction of this Court
on the allegation that respondent nos. 4
and 5 have encroached upon the Gaon
Sabha property and in spite of several
efforts made by the petitioner before the
administrative authorities including the
District Magistrate and the Commissioner
of the concerned Division, no steps have
been taken to remove the encroachment
from the land in dispute. The petitioner,
therefore, has made prayer for issuance of
a writ of mandamus directing respondent
nos. 1 to 4 for removal of the
encroachment made over the Gaon Sabha
property.

2. Learned counsel for the petitioner
vehemently contended that the respondent
authorities, despite various complaints
made by the petitioner along with the
villagers of the village in question, failed
to take any steps for removal of the
encroachment made over the public
property. He pointed out from the petition
that detailed representations/complaints
were filed by the petitioner along with
villagers before the District Magistrate,
Mau and the Commissioner, Azamgarh
Division, Azamgarh, copies whereof are
enclosed as Annexures - 5 and 6 to the
writ petition, yet it yielded no result and,
thus, he has filed the present PIL. It is
submitted that Plot Nos. 177 and 178
belong to Gaon Sabha of village Nagpur,
Pargana and Tehsil Mohammadabad,
District Mau and are recorded as 'Bheeta'
in the revenue records.

3. On the other hand, learned
Standing Counsel appearing for the Staterespondents has submitted that it is the
duty of the Land Management Committee
constituted under the U.P. Panchayat Raj
Act to maintain the Gaon Sabha property
and in case there is some encroachment, a
complete mechanism under Section 122-B
of the U.P. Zamindari Abolition & Land
Reforms Act and the Rules framed
thereunder has been provided to remove
such encroachment over the Gaon Sabha
property which also includes imposition
of damages etc. In his submissions, the
grievance can be raised before the Land
Management Committee itself of which
Lekhpal of the circle happens to be the
Secretary, who is legally responsible for
informing such encroachments over the
Gaon Sabha property to the Assistant
Collector and the petitioner may raise his
grievance
before
the
aforesaid
Committee/Local Authority itself, instead
of rushing to this Court in its extraordinary jurisdiction under Article 226 of
the Constitution of India.

4.

We
have
considered
the
submissions made on both sides.

5. The U.P. Zamindari Abolition &
Land Reforms Act, 1950 (hereinafter
referred to as 'Act of 1950') is a selfcontained Act and it contains a complete
mechanism for removal of encroachment
over the Gaon Sabha property. It would
be useful to reproduce the relevant
provisions of the Act of 1950 and the
Rules framed thereunder, which prescribe
the duties and powers of the Land
Management Committee as well as the
1490 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
revenue authorities. Under the provisions
contained in Section 122-A of the Act of
1950, the Land Management Committee
of the Gaon Sabha is vested with the
power of superintendence, management
and control of all land recorded as public
utility land. It reads as under:-

"122-A
Superintendence,
management and control of land etc. by
the Land Management Committee.-

(1)Subject to the provisions of this
Act, the Land Management Committee
shall be charged, for and on behalf of the
Gaon
Sabha
with
the
general
superintendence,
management,
preservation and control of all the land,
forests within village boundaries, trees
(other than trees in a holding, grove or
abadi), fisheries, tanks, ponds, water
channels, pathways, abadi sites and hats,
bazars and melas vested in the Gaon
Sabha under Section 117.

(2)Without
prejudice
to
the
generality of the foregoing provisions, the
functions
and
duties
of
the
Land
Management Committee shall include-

(a) the setting and management of
land;

(b) the conduct and prosecution of
suits and proceedings by or against the
Gaon Sabha;

(c)
the
development
and
improvement of agriculture;

(d) the preservation, maintenance
and development of forests and trees;

(e) the maintenance and development
of
abadi
sites
and
village
communications;

(f) the management of hats, bazars
and melas;

(g) the development of co-operative
farming;

(h) the development of animal
husbandry which includes pisciculture
and poultry farming;

(i) the consolidation of holdings;

(j) the development of cottage
industries;

(k) the maintenance and development
of fisheries and tanks; and

(l) such other matters as may be
prescribed.

(3) Subject to such conditions as may
be prescribed, the Chairman or any other
office-bearer or member of the Land
Management Committee shall, for and on
behalf
of
the
Land
Management
Committee, be entitled to sign any
document and to do all other things for
the conduct and prosecution of suits and
other proceedings.

122-B
Powers
of
the
Land
Management
Committee
and
the
Collector.-

(1)Where any property vested under
the provisions of this Act in a Gaon Sabha
or a local authority is damaged or
misappropriated or where any Gaon
Sabha or local authority is entitled to take
or retain possession of any land under the
3 All] Rama Shankar V. State Of U.P. Through its Secretary & others
1491
provisions of this Act and such land is
occupied otherwise than in accordance
with the provisions of this Act, the Land
Management
Committee
or
Local
Authority, 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 Act, he shall issue
notice to the person concerned to show
cause why compensation for damage,
misappropriation or wrongful occupation
as mentioned in such notice be not
recovered from him or, as the case may
be, 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 not exceeding three months
from the date of service of such notice on
such person, 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 may 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,
misappropriation or wrongful occupation
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.

(4-A) Any person aggrieved by the
order of the Assistant Collector under
sub-section (3) or sub-section (4) may,
within thirty days from the date of such
order prefer, a revision before the
Collector on the grounds mentioned in
clauses (a) to (e) of Section 333.

(4-B) The procedure to be followed
in any action taken under this section
shall be such as may be prescribed.

(4-C)
Notwithstanding
anything
contained in Section 333 or Section 333A, but subject to the provisions of this
section-

(i) every order of the Assistant
Collector under this section shall, subject
to the provisions of sub-sections (4-A) and
(4-D), be final.

(ii) every order of the Collector
under this section shall, subject to the
provisions of sub-section (4-D), be final.

(4-D) any person aggrieved by the
order of the Assistant Collector or
Collector in respect of any property under
this section may file a suit in a court of
competent jurisdiction to establish the
right claimed by him in such property.

(4-E) No such suit as is referred to in
sub-section (4-D) shall lie against an
order of the Assistant Collector if a
revision is preferred to the Collector
under sub-section (4-A).
1492 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Explanation.- for the purposes of this
section, the expression 'Collector' means
the officer appointed as Collector under
the provision of the U.P. Land Revenue
Act, 1901 and includes an Additional
Collector.

(4-F) Notwithstanding anything in
the foregoing sub-sections, where any
agricultural labourer belonging to a
Scheduled Caste or Scheduled Tribe is in
occupation of any land vested in a Gaon
Sabha under Section 117 (not being land
mentioned
in
Section
132)
having
occupied it from before June 30, 1985 and
the land so occupied together with land, if
any, held by him from before the said date
as bhumidhar, sirdar or asami, does not
exceed 1.26 hectares (3.125 acres), then
no action under this section shall be taken
by the Land Management Committee or
the Collector against such labourer, and
it shall be deemed that he has been
admitted
as
bhumidhar
with
nontransferable rights of that land under
Section 195.

(5) Rules 115-C to 115- H of the U.P.
Zamindari Abolition and Land Reforms
Rules, 1952, shall be and be always
deemed to have been made under the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 as amended by the Uttar
Pradesh Land Laws (Second Amendment)
Act, 1961, as if this section has been in
force on all material dates and shall
accordingly continue in force until altered
or repealed or amended in accordance
with the provisions of this Act.

6. U.P. Zamindari Abolition and
Land Reforms Rules, 1952 (hereinafter
referred to as the 'Rules of 1952') framed
under the Act of 1950 also prescribe
complete
procedure
regarding
maintenance and management of the land
meant for public utility by the Land
Management Committee of the Gaon
Sabha.
In
order to
appreciate the
provision,
the
relevant
Rules
are
reproduced hereinafter:-

"115-C (1) It shall be the duty of the
Land Management Committee to preserve
or
protect
from
damage,
misappropriation
and
wrongful
occupation, all properties vested in it
under Section 117, including vacant land
and land over which it is entitled to take
possession under the Act and to manage
and maintain all such property and land
in its possession.

(2) The Chairman or any Member or
the Secretary of the Land Management
Committee shall report all cases of
damage to; or misappropriation or
wrongful occupation of, the property
referred to in sub-rule (1) to the Collector
praying for recovery of compensation for
damage to or misappropriation of the
property or possession of the land
together with damages for wrongful
occupation thereof.

(3) it shall be the duty of the Lekhpal
to report to the Collector through the
Tahsildar
all
cases
of
wrongful
occupation
of
damage
to
and
misappropriation of property vested in the
Gaon Sabha as soon as they come to his
notice and in any case after the
conclusion of Kharif and Rabi Partal
every year.

(4) The Tahsildar shall satisfy
himself in the month of May every year
that each Lekhpal has submitted all such
reports.
3 All] Rama Shankar V. State Of U.P. Through its Secretary & others
1493

(5) The provisions of sub-rules (1) to
(3) shall mutatis mutandis apply to a local
authority in respect of the properties
vested in it, including vacant land and
land over which it is entitled to take
possession, under the Act:

Provided that the duty in respect of
sub-rule (3) above, shall be discharged by
such official of the local authority as may
be decided upon by the local authority
concerned.

115-D
(1)
Where
the
Land
Management Committee or the local
authority, as the case may be, fails to take
action in accordance with Section 122-B,
the Collector shall-

(a)
on
an
application
of
the
Chairman; Member or Secretary of the
Committee; or

(b) on a report made by the Lekhpal
under sub-rule (3) of Rule 115-C; or

(c) on the report of the local
authority
concerned
or
its
official
referred to in the proviso to sub-rule (5)
of Rule 115-C;

(d) on facts otherwise coming to his
notice;

call upon the person concerned
through notice in Z.A. Form 49-A to
refrain
for
causing
damage
or
misappropriation, to repair the damage
or make good the loss or remove wrongful
occupation and to pay damages or to do
or refrain from doing any other thing as
the exigencies of the situation may
demand or to show cause against it in
such time not exceeding fifteen days as
may be specified in the notice.

(2) Before issuing a notice under
sub-rule (1), the Collector may make such
inquiry as he deems proper and may
obtain information on the following
points-

(a) full description of damage or
misappropriation caused or the wrongful
occupation made, with details of village,
mohalla or ward, plot number, area,
boundary,
property
damaged
or
misappropriated
and
market
value
thereof;

(b) full address along with father's
name of the person responsible for the
damage, misappropriation or wrongful
occupation;

(c) period of wrongful occupation,
damage or misappropriation, class of soil
of the plot numbers involved and
hereditary rates applicable to them; and

(d) value of the property damaged or
misappropriation
calculated
at
the
prevailing market rate in the locality.

115-E (1) Where any direction for
eviction or recovery of any amount of
compensation has been issued by the
Collector under sub section (4) of Section
122-B an order in Z.A. Form 49-C shall
be sent to the Tahsildar concerned for
execution who shall as far as possible
follow the procedure laid down in
paragraphs 137 and 138 of Revenue
Court Manual.

(2) The order under Z.A. Form 49-C
shall also specify the amount which shall
be recovered from the person concerned
as expenses of execution which shall
include the pay and allowances of the
staff deputed to be calculated according
1494 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
to the rates mentioned in paragraphs 405
of the Revenue Court Manual.

115-F (1) All damages ordered to be
recovered and expenses incurred in the
execution of the orders of the Collector
shall be realised as arrears of land
revenue and credited to the Consolidated
Gaon Fund or the Fund of a local
authority other than a Gaon Sabha, as the
case may be except that the cost on
account of pay and travelling allowance
of staff deputed shall be deposited in the
Tahsil Sub-treasury under the head "029Land Revenue- E- other receipts (5)
Collection
of
payment
for
services
rendered".

(2) If the damage or loss caused
through misappropriation is of such a
nature as is not capable of being repaired
or made good, (as in the case of cutting of
trees, or grazing of plants or grass) the
Collector shall assess the amount of
damage or loss in terms of money at the
prevailing market rate in the locality. In
case of wrongful occupation of land, the
damage caused to the Gaon Sabha or the
local authority, as the case may be, shall
be assessed for each year of such
wrongful occupation or any part thereof,
at 100 times the amount of rent computed
at
the
sanctioned
hereditary
rates
applicable to the plots concerned. In case
the occupant of land continued to remain
in such wrongful occupation, he shall be
further liable to pay one-eighth of the
damages so assessed for every month of
the continued occupation after the date of
the order.

115-G (1) if the persons wrongfully
occupying the land has done cultivation
therein, he may be allowed to retain
possession thereof until he has harvested
the crop subject to the payment by him of
100 times the amount of rent computed at
the sanctioned hereditary rates applicable
which
shall
be
credited
to
the
Consolidated Gaon Fund or the Fund of
the local authority other than the Gaon
Sabha as the case may be. If the person
concerned does not make the payment of
the aforesaid amount within the period
specified in the notice in Z.A. Form 49-A,
possession of the land shall be delivered
to the Land Management Committee or
the local authority, as the case may be
together with the crop:

Provided that where such person
wrongfully occupies the same land or any
other land within the jurisdiction of the
Gaon Sabha or the local authority, as the
case may be, a subsequent time, he shall
be ejected therefrom without being
permitted to gather his produce and
possession of the land together with the
crop thereon shall be delivered to the
Land Management Committee or the local
authority, as the case may be.

(2) Nothing in sub-rule (1) shall
debar the Land Management Committee
or the local authority, as the case may be,
from
prosecuting
the
person
who
encroaches upon the same land a second
time in spite of having been ejected under
the Act or rules under Section 447 of the
Indian Penal Code."

7. From a plain reading of the
provisions contained in Section 122-A of
the Act of 1950, it is apparent that the
Land Management Committee has been
vested, on behalf of the Gaon Sabha, with
the
power
to
keep
general
superintendence,
management,
preservation and control of all the lands,
forests within the village boundaries,
3 All] Rama Shankar V. State Of U.P. Through its Secretary & others
1495
trees, fisheries, tanks, ponds, water
channels, pathways, abadi sites and hats,
bazars and melas vested in the Gaon
Sabha under Section 117. Sub-section (2)
(a) of Section 122-A of the Act of 1950
deals with the setting and management of
the land.

8. Sub-section 1 of Section 122-B of
the Act of 1950 imposes duty upon the
Land Management Committee to inform
the Assistant Collector of the concerned
area with regard to the encroachment or
misappropriation over the Gaon Sabha
land. The manner for providing the
information has been provided under
Rule-115(C). Sub-rule (3) of Rule 115-C
imposes duty on the Lekhpal to report to
the Collector through the Tahsildar all
cases of wrongful occupation of damage
to and misappropriation of property
vested in the Gaon Sabha as soon as they
come to his notice and in any case after
the conclusion of 'Kharif' and 'Rabi Partal'
every year. Sub-rule (4) of Rule 115-C
provides that the Tahsildar shall satisfy
himself in the month of May every year
that each Lekhpal has submitted all such
reports. Rule 115-D provides that where
the Land Management Committee or the
local authority, as the case may be, fails to
take action according to Section 122-B
(1), the Collector shall, on an application
of the Chairman; Member or Secretary of
the Committee; or on a report made by the
Lekhpal under sub-rule (3) of sub-rule
115-C or 'otherwise' take action. The
Collector, after being satisfied, shall call
upon the person concerned through notice
in Z.A. Form 49-A to refrain from
causing damage or misappropriation, to
repair the damage or make good the loss
or remove wrongful occupation and to
pay damages or to do or refrain from
doing any other thing as the exigencies of
the situation may demand or to show
cause against it in such time not
exceeding fifteen days as may be
specified in the notice. Before issuing
such a notice, sub-rule (2) of Rule 115-D
casts a duty upon the Collector to make an
enquiry in the manner prescribed under
sub-rule-(2) (a), (b), (c), and (d), as
referred above. Rule 115-E of the Rules
of 1952 provides procedure for eviction
and Rule 115-F prescribes the manner of
assessment
of
damage
over
Gaon
Sabha/Local Authority property and mode
of its realization as arrears of Land
Revenue. Further, Rule 115-F provides
that if somebody has cultivated the land
of Gaon Sabha or Local Authority, he
may be allowed to retain the possession
till he harvests the same on payment of
hundred times land revenue of the
occupied land. The proviso to Rule 115-G
also provides for action under the Indian
Penal Code if the property has been
occupied for the second occasion.

9.

From
going
through
the
provisions as contained in Section 122-B
of the Act of 1950 and the Rules framed
thereunder, it is apparent that it is the duty
of the Land Management Committee and
the Lekhpal to inform such encroachment
over the Gaon Sabha property. Lekhpal is
under legal obligation to make enquiry in
each 'Kharif' and 'Rabi' and the Tahsildar
is also under an obligation to ensure in the
month of May every year that such
reports are submitted by the Lekhpals as
required under sub rule-(3) of Rule 115C.

10. The Act of 1950 and the Rules
framed thereunder have not only rested on
this but also made further provisions
under sub-section (2) of Section 122-B
read with Rule 115-D(1)(d), that on such
1496 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
information under sub-section (1) of
Section 122-B, which is referable to the
Land
Management
Committee
and
Lekhpal or 'otherwise', the Assistant
Collector if satisfied that any property
referred to in sub-section (1) of Section
122-B
has
been
damaged
or
misappropriated, then he shall issue notice
to such person who has caused damage or
misappropriated the property. The word
'otherwise' used in this sub-section has
wide import. To our mind, on failure of
information of such encroachment as
provided under Section 122- B (1) read
with Rule 115-D (1) (a)(b) and (c) either
by the Land Management Committee of
Gaon Sabha/Local Authority or by
Lekhpal, the Assistant Collector can take
action under this Section after the
information received from 'other sources',
may be any other officer of the State
Government or general public. This is the
enabling provision which empowers the
Collector to take action against the person
who has illegally occupied the Gaon
Sabha land, on an information other than
sources referred to in Section 122- B (1)
read with Rule 115- D (1) (a) (b) and (c ).

11. The view taken by us finds
support from a Division Bench judgment
of this Court in Motilal Vs. District
Magistrate, Lalitpur & Ors., 2003 (5)
AWC 3849, wherein the Division Bench
considered Rule (4) (1) of the U.P.
Panchyat Raj (Removal of Pradhan, Up
Pradhan, Members) Enquiry Rules 1997,
where the procedure for conducting
preliminary enquiry against the Pradhan
has been provided. Sub-rule (3) of the
Rules of 1997 provides the procedure for
filing complaint on an affidavit for
holding an enquiry against the Pradhan,
Up Pradhan or Members. Under Rule (4)
(1), apart from the complaint, the word
'otherwise' has been used which reads as
under:-

"4. Preliminary Enquiry.- (1) The
State Government may, on the receipt of a
complaint or report referred to in Rule 3,
or 'otherwise' order the Enquiry Officer to
conduct a preliminary enquiry with a view
to finding out if there is a prima facie
case for a formal enquiry in the matter."

12. In the aforesaid case, the
contention of the petitioner was that the
complaint was not filed in accordance
with Rule (3) of 1997 Rules, as the same
was not on an affidavit, therefore, the
District Magistrate was not empowered to
pass an order for holding a fact finding
preliminary enquiry. While interpreting
the word 'otherwise', the Division Bench
has observed that the word 'otherwise'
used under sub-rule (1) of Rule (4) has
wide import and if complaint is not filed
as envisaged under Rule (3), the State
Government does not lack of power to
direct holding of preliminary enquiry. It
has further observed that the District
Magistrate may, after personally coming
to know some serious lapse on the part of
the Pradhan, may hold preliminary
enquiry
without
there
being
any
complaint or report as required under subrule (3).

13. In the case in hand, the
grievance of the petitioner is that in spite
of
various
representations/complaints
made to the District Magistrate and the
Commissioner of the concerned Division,
no action has been taken and, therefore,
he has been compelled to file this writ
petition. As would appear from the
foregoing discussions that where the Land
Management Committee/Lekhpal fails to
inform such encroachment for taking
3 All] Sarita Shukla and others V. State of U.P. and others
1497
action, the Assistant Collector may take
action, after receipt of such complaints
even made by the general public. We are,
therefore, of the view that the Assistant
Collector cannot wash out his hands from
discharging his duties given under the Act
for removal of such encroachments which
are alleged to have been made over the
Gaon Sabha property. For that purpose,
we would like to observe that even if the
complaint is made before the Collector
and not Assistant Collector, as required
under the Act, the Collector is also under
an obligation to send the complaints to the
Assistant Collector of the concerned area
from where the complaint has been
received and on such receipt of complaint,
either transmitted through the office of the
District Collector or directly by the
general public, the Assistant Collector is
under
legal
obligation
under
the
provisions of the Act and the Rules
framed thereunder, to make an enquiry in
this regard, and after being satisfied, issue
notice to the encroacher along with full
details as required under the Rules and
proceed in accordance with the provisions
contained under Section 122-B of the Act
of 1950 and the Rules framed thereunder.

14. In view of above legal position,
we are of the view that the appropriate
remedy for the petitioner herein is to file a
comprehensive application/representation
giving all details before the Assistant
Collector concerned with regard to such
encroachment as alleged herein and on
receipt of such complaint, the Assistant
Collector is directed to proceed in
accordance with the provisions of the Act
of 1950 and the Rules framed thereunder,
and after making necessary enquiry and
affording opportunity of hearing to all
concerned, take appropriate decision
expeditiously.

15. Subject to above observations,
this writ petition is disposed of finally.
There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 70682 of 2011

Sarita Shukla and others
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Agnihotri Kumar Tripathi

Counsel for the Respondents:
C.S.C.
Sri K.S.Kushwaha
Sri Chandra Narayan Tripathi

U.P. Basic Education (Teachers) Service
Rules, 1981-Rule 14 (1)-Selection of
training teachers for primary school-by
clause 7 of advertisement-restriction to
apply
only
5
districts-held-arbitrary
irrational, violative of Article 14-can not
sustain.

Held: Para 38

It is also not discernible as to whether
any rational object the respondents
intent
to
achieve
by
making
this
restriction. The said condition also fails
ex facie to show any nexus with the
undisclosed objectives sought to be
achieved. It is well settled that any
policy
decision,
which
is
ex
facie
arbitrary,
irrational
or
illogical
is
violative
of
Article
14
and
cannot
sustain.
Case law discussed:
(2006) 9 SCC 1; 2010 (5) ESC 630; AIR 1992
SC 1858