High Court · 2025

1. Heard learned counsel for petitioner, learned State Counsel for opposite parties 1 to 3 and Mr. Pankaj Gupta learned counsel for opposite party No.4.

2. Petition has been filed challenging order dated 20th July, 2024 passed under Section 67 (5) of the Act as also against order dated 28th July, 2023 passed under Section 126 of the Act. Further prayer for direction to opposite parties not to demolish house of petitioner during pendency of this petition over plot in question has also been sought.

3. It has been submitted that earlier a notice dated 7th January, 2023 had been issued by the Assistant Engineer, Public Works Department to the petitioner indicating alleged encroachment by him over the plot in question indicating that in case petitioner failed to remove the encroachment, proceedings under Section 13 of the Road Side Land Control Act 1945/ P.P. Act would be initiated against him. It is submitted that reply to the aforesaid notice was submitted by petitioner whereafter no further proceedings took place and subsequently a show cause notice under Section 67(1)of the Revenue Code 2006 has been issued to which also the petitioner had submitted his reply but by means of impugned order dated 20th July, 2024, orders against petitioner have been passed and appeal thereagainst has also been rejected.

4. It is submitted that in his objections, petitioner has specifically indicated the fact that there is no encroachment by him over plot in question. It is also submitted that the procedure as required to be followed pertaining to demarcation was not followed inasmuch as no starting pillar was constructed by the Lekhpal concerned from which he would be able to ascertain regarding demarcation of gata No. 399 and alleged encroachment of petitioner thereupon over a portion thereof.

5. It is submitted that even otherwise the proceedings under Section 67 (1) of the Code are incompetent since proceedings could have been held only in terms of the Road Side Land Control Act 1945 or the Public Premises Act.

6. It is also submitted that the opposite parties have misconstrued the submissions of petitioner in his reply to mean that he was admitting his encroachment over property in question whereas there was no such admission and in fact denial that petitioner had ever encroached over the property in question.

7. Learned counsel for opposite parties have refuted submissions advanced by learned counsel for petitioner with submission that Section 67(1) of the Revenue Code clearly empowers that where any property entrusted or deemed to be entrusted under provisions of the Code to a gram panchayat or other local authority is damaged or misappropriated, notice and proceedings under the aforesaid provision can very well ensue without resort to any other proceedings. It is submitted that where two enabling provisions are provided for, the opposite parties can very well exercise their option to choose either of the two.

8. Learned counsel have also adverted to reply submitted by petitioner dated 23rd September, 2023 to submit that the petitioner has clearly admitted that the gata No.399 is recorded as chak marg and therefore error, if any, in demarcation is irrelevant.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that earlier a notice was issued to petitioner on 7th January, 2023, apparently pertaining to the property in question, in which it was indicated that proceedings under Road Side Land Control Act 1945/ P.P. Act would be initiated against him. Reply against said notice was submitted on 16th January, 2023 but evidently the proceedings did not see any conclusion whereafter a notice under Section 67 of the Revenue Code dated 24th January, 2025 was issued to petitioner alleging his encroachment of approximately 0.0056 Hectare over gata No. 399 having a total area of 0.5 Hectare.

10. Reply to the said notice was submitted by petitioner on 19th June, 2023 indicating that although there is no encroachment over the plot in question but in case the road is widened and there is any obstruction in traffic, petitioner's residential accommodation may be removed.

11. With regard to competence of notice issued under Section 67(1) of the Code from perusal of the aforesaid provisions of Section 67(1) of the Revenue Code 2006, it is evident that it enables the authorities concerned to initiate proceedings under section 67 where there is any damage or misappropriation pertaining to any property belonging to gram panchayat or other local authority.

12. In the considered opinion of this Court, once there are two enabling provisions provided to authorities for initiating action for removal of any alleged encroachment, they have option to exercise either or any of the provisions which would be admissible in terms of doctrine of election. The insistence of petitioner for initiation of action only under rule said Land Control Act 1945 or The public premises Act, is therefore misconceived once the authorities were empowered to issue the notice under Section 67(1) of the Revenue Code 2006. The authorities can not be compelled to initiate action only under a particular provision where other provision also exists.

13. With regard to the aspects indicated by petitioner in his reply submitted to the notice under Section 67, read conjointly with the averments made in appeal preferred under section 67(5) of the Revenue Code, it is evident from perusal of paragraph 3 of the appeal that petitioner has clearly admitted the fact that the gata No.399 is a chak marg on which a mettled road has been constructed but is alleged to be vacant. He has also indicated that there is no illegal encroachment by petitioner over property in question.

14. However a perusal of the reply submitted a notice under Section 67, memo of appeal and even the memo of writ petition, it is discernible that the petitioner has not at all indicated anywhere that his construction is not over gata No. 399 in village in question. On the contrary the gist of petitioner' submission clearly indicate the fact that his construction is over gata No. 399 over village in question, which he is ready and willing to remove in case road widening is necessary.

15. Once the petitioner has not specifically denied that his construction exists over gata No. 399, which he himself admits to be a chak marg, any irregularity in demarcation proceedings, looses its importance. It is evident that in the face of clear admission of petitioner with regard to his construction over gata No.399 of the village in question and same being admitted to be a chak marg, the provisions of Section 67 of the Revenue Code clearly were applicable under which the impugned orders have been passed.

16. In view of aforesaid discussion, it does not appear to be any occasion to interfere with the orders impugned.

17. The petition being devoid of merits is dismissed at the admission stage itself. Parties to bear their own cost. Order Date:-17.2.2025 prabhat PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for petitioner, learned State Counsel for opposite parties 1 to 3 and Mr. Pankaj Gupta learned counsel for opposite party No.4.

2. Petition has been filed challenging order dated 20th July, 2024 passed under Section 67 (5) of the Act as also against order dated 28th July, 2023 passed under Section 126 of the Act. Further prayer for direction to opposite parties not to demolish house of petitioner during pendency of this petition over plot in question has also been sought.

3. It has been submitted that earlier a notice dated 7th January, 2023 had been issued by the Assistant Engineer, Public Works Department to the petitioner indicating alleged encroachment by him over the plot in question indicating that in case petitioner failed to remove the encroachment, proceedings under Section 13 of the Road Side Land Control Act 1945/ P.P. Act would be initiated against him. It is submitted that reply to the aforesaid notice was submitted by petitioner whereafter no further proceedings took place and subsequently a show cause notice under Section 67(1)of the Revenue Code 2006 has been issued to which also the petitioner had submitted his reply but by means of impugned order dated 20th July, 2024, orders against petitioner have been passed and appeal thereagainst has also been rejected.

4. It is submitted that in his objections, petitioner has specifically indicated the fact that there is no encroachment by him over plot in question. It is also submitted that the procedure as required to be followed pertaining to demarcation was not followed inasmuch as no starting pillar was constructed by the Lekhpal concerned from which he would be able to ascertain regarding demarcation of gata No. 399 and alleged encroachment of petitioner thereupon over a portion thereof.

5. It is submitted that even otherwise the proceedings under Section 67 (1) of the Code are incompetent since proceedings could have been held only in terms of the Road Side Land Control Act 1945 or the Public Premises Act.

6. It is also submitted that the opposite parties have misconstrued the submissions of petitioner in his reply to mean that he was admitting his encroachment over property in question whereas there was no such admission and in fact denial that petitioner had ever encroached over the property in question.

7. Learned counsel for opposite parties have refuted submissions advanced by learned counsel for petitioner with submission that Section 67(1) of the Revenue Code clearly empowers that where any property entrusted or deemed to be entrusted under provisions of the Code to a gram panchayat or other local authority is damaged or misappropriated, notice and proceedings under the aforesaid provision can very well ensue without resort to any other proceedings. It is submitted that where two enabling provisions are provided for, the opposite parties can very well exercise their option to choose either of the two.

8. Learned counsel have also adverted to reply submitted by petitioner dated 23rd September, 2023 to submit that the petitioner has clearly admitted that the gata No.399 is recorded as chak marg and therefore error, if any, in demarcation is irrelevant.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that earlier a notice was issued to petitioner on 7th January, 2023, apparently pertaining to the property in question, in which it was indicated that proceedings under Road Side Land Control Act 1945/ P.P. Act would be initiated against him. Reply against said notice was submitted on 16th January, 2023 but evidently the proceedings did not see any conclusion whereafter a notice under Section 67 of the Revenue Code dated 24th January, 2025 was issued to petitioner alleging his encroachment of approximately 0.0056 Hectare over gata No. 399 having a total area of 0.5 Hectare.

10. Reply to the said notice was submitted by petitioner on 19th June, 2023 indicating that although there is no encroachment over the plot in question but in case the road is widened and there is any obstruction in traffic, petitioner's residential accommodation may be removed.

11. With regard to competence of notice issued under Section 67(1) of the Code from perusal of the aforesaid provisions of Section 67(1) of the Revenue Code 2006, it is evident that it enables the authorities concerned to initiate proceedings under section 67 where there is any damage or misappropriation pertaining to any property belonging to gram panchayat or other local authority.

12. In the considered opinion of this Court, once there are two enabling provisions provided to authorities for initiating action for removal of any alleged encroachment, they have option to exercise either or any of the provisions which would be admissible in terms of doctrine of election. The insistence of petitioner for initiation of action only under rule said Land Control Act 1945 or The public premises Act, is therefore misconceived once the authorities were empowered to issue the notice under Section 67(1) of the Revenue Code 2006. The authorities can not be compelled to initiate action only under a particular provision where other provision also exists.

13. With regard to the aspects indicated by petitioner in his reply submitted to the notice under Section 67, read conjointly with the averments made in appeal preferred under section 67(5) of the Revenue Code, it is evident from perusal of paragraph 3 of the appeal that petitioner has clearly admitted the fact that the gata No.399 is a chak marg on which a mettled road has been constructed but is alleged to be vacant. He has also indicated that there is no illegal encroachment by petitioner over property in question.

14. However a perusal of the reply submitted a notice under Section 67, memo of appeal and even the memo of writ petition, it is discernible that the petitioner has not at all indicated anywhere that his construction is not over gata No. 399 in village in question. On the contrary the gist of petitioner' submission clearly indicate the fact that his construction is over gata No. 399 over village in question, which he is ready and willing to remove in case road widening is necessary.

15. Once the petitioner has not specifically denied that his construction exists over gata No. 399, which he himself admits to be a chak marg, any irregularity in demarcation proceedings, looses its importance. It is evident that in the face of clear admission of petitioner with regard to his construction over gata No.399 of the village in question and same being admitted to be a chak marg, the provisions of Section 67 of the Revenue Code clearly were applicable under which the impugned orders have been passed.

16. In view of aforesaid discussion, it does not appear to be any occasion to interfere with the orders impugned.

17. The petition being devoid of merits is dismissed at the admission stage itself. Parties to bear their own cost. Order Date:-17.2.2025 prabhat PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench