Proceeding To Demolish 'Encroachment' After 20 Yrs Laudable But Ascertain Liability Of Guilty Officials: Allahabad HC To UP Govt

The Allahabad High Court on Tuesday said that the Uttar Pradesh government's act of proceeding to remove the 20-year-old alleged encroachment is laudable, but, the state government will also have to ascertain the liability/guilt of officials who did not ensure that Gaon Sabha property is not encroached.

The bench of Justice Abdul Moin was essentially dealing with the plea of one Mahesh Kumar Agrawal seeking quashing of an order passed by Assistant Collector/Tehsildar, Sitapur holding him to be an encroacher, imposing a penalty of Rs.5,40,200/- and initiating recovery proceedings against him.

The order further noted that the petitioner had encroached upon the land 20 years earlier i.e. he was an encroacher for a period of 20 years upon the Gaon Sabha land as he built a boundary wall and a building there.

Case in brief

The order of the Assistant Collector/Tehsildar, Sitapur (dated December 30, 2021) also noted that two years earlier, the encroachment was removed by demolishing the wall and that at the time of passing of the order, the land was lying vacant.

On the other hand, the petitioner argued that the land adjacent to the disputed land had been purchased by the petitioner through a registered sale deed in 2016, and as such, it can't be said that he ever encroached upon the land in dispute prior to even purchasing certain property adjacent to it.

Further, he challenged the order on the ground that at no stretch of time was any notice received by the petitioner although it is a mandatory provision taking into consideration Rule 67(2) of the U.P. Revenue Code Rules, 2016.

Court's observations

At the outset, the Court noted that the impugned order recorded that two years earlier (prior to the passing of the order) the boundary wall had been removed, however, the order was completely silent as to the building which is said to have been constructed over the disputed land.

Further, regarding the failure of officials to prevent encroachment over gaon sabha land, the Court further remarked thus:

"Obviously the alleged encroachment for about 20 years prima facie could not have continued without the active connivance of the officials who were responsible for removal of the said encroachment. Waking up after 20 years and thereafter proceeding to demolish the alleged encroachment though laudable yet would require the authorities to explain as to which of the officials were in active connivance and did not ensure that Gaon Sabha property is not encroached." [emphasis supplied]

Considering the aforesaid, the Court directed the Principal Secretary (Revenue) himself to enquire into the matter on the aforesaid points including ascertaining the liability/guilt of the officials who were responsible for preventing encroachment over Gaon Sabha land yet encroachment was made and as to the action which is proposed to be taken against such officials after identifying them.

"Let the preliminary inquiry be completed within four weeks from today and a personal affidavit of the Collector, Sitapur, be filed in this regard within next two weeks thereafter," the Court ordered.

Meanwhile, the Standing Counsel was directed to seek instructions as to how the service of notice of the proceedings under Section 67 of the Code, 2006 was made on the petitioner.

Case title - Mahesh Kumar Agrawal v. State Of U.P. Thru. Prin. Secy. Revenue Deptt. Lko. And 3 Others [WRIT - C No. - 4521 of 2022]

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