UP Revenue Code 2006 | Land For Public Use Cannot Be Exchanged By Encroacher With His Own Land: Allahabad High Court

The Allahabad High Court has held that land recorded for public use cannot be exchanged by encroacher with his own land.

The bench comprising Justice Rajnish Kumar held that restoring the pond and maintaining it is beneficial for the villagers and for maintaining ecological balance. The Court further observed that under Section 101 (Exchange) of UP Revenue Code a bhumidar can exchange land held by another bhumidar or entrusted or deemed to be entrusted to any gram panchayat or local authority under Section 59. However, a land recorded as pond cannot be permitted to be exchanged even if it has been created into abadi.

“Even otherwise the encroachers, who have their own land, can not be said to be entitled for exchange of their land with the same and if it is permitted, then the persons having muscle power will make encroachment on prominent and valuable land of the Government and others and on being found as encroachers would seek exchange from their land, which may be of lesser value, therefore exchange cannot be considered and allowed in such circumstances.”

Factual Background

Based on the report of Lekhpal, a case under Section 67 of the U.P. Revenue Code 2006 was registered for eviction from Gata No.166 of Village- Jagdishpur, Pargana- Amethi, Tehsil- Gauriganj, District- Amethi and damages. A show cause notice was issued to the petitioner. in reply, petitioner contended that the land in question Gata No. 166, though recorded as a Talab (pond) is residential. It was contended that the adjacent plot belonged to the petitioner and had he been given the opportunity of hearing, he could have claimed exchange from his land, Gata No. 165.

Order under Section 67 (Power To Prevent Damage, Misappropriation And Wrongful Occupation Of Gram Panchayat Property) of the U.P. Revenue Code of 2006 was passed by the Tehsildar/ Assistant Collector (First Class), Gauriganj, District- Amethi. Subsequently, order was passed by the Collector, District- Amethi in appeal under Section 67(5) of Code of 2006 were challenged on grounds of violations of principles of natural justice.

Per Contra, counsel for respondent pointed out contrary stands taken by the petitioner in the reply submitted to the show cause notice and objections filed. In the reply, petitioner stated that he has built a house on Gata no. 166 which is in shape of abadi whereas in the objection it was stated that the petitioner is residing in his ancestral home and there is not house on the said land. It was alleged by the petitioner that no spot inspection was carried out.

Counsel for respondent submitted that full opportunity of hearing was afforded to the petitioner along with opportunity of cross-examination with the Lekhpal.

High Court Verdict

The Court observed that the petitioner on its own admitted that he was living on the land marked as Talab(pond). The argument that he had no other place to go was unsustainable since he had categorically stated in his reply that the neighbouring plot was registered in his name.

Noting the scheme of Section 67 of the UP revenue Code 2006, the Court held that the action can be taken against a person wrongfully occupying/ encroaching upon the property of the Gram Panchayat after giving due notice.

The Court placed reliance on Rishipal Singh Vs. State of U.P. and 3 Others wherein the Allahabad High Court issued guidelines for proceeding under Section 67, 67A and 26 of the Code of 2006.

“This Court, in the aforesaid guidelines, has provided in paragraph (iv) that upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved. Paragraph (v) provides that in the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same alongwith the matter under Section 67. Paragraph (vi) provides for presence of the person, who has prepared the report to prove it and for cross-examination by the aggrieved party.”

The Court observed that during cross examination, petitioner could not extract anything which was contrary to the report of the Lekhpal. Moreover, the petitioner had already admitted to being in possession of the said land. The Court observed that “cardinal principles of law of evidence is that a fact admitted need not be proved.”

The Court held that shape of the land is immaterial. The nature may be changed and created by the petitioner by residing over it for years. The Court held that it does not give the petitioner the right over the land marked as pond.

The Court relied on Hinch Lal Tiwari Vs. Kamala Devi and Others, Supreme Court held that

“the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain 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 and no part of pond could have been allotted to anybody for construction of house building or any allied purposes.”

In that case, Apex Court directed restoration of the pond and its development and maintenance as a recreational spot. In addition to being beneficial for villagers, the pond would help in maintaining ecological balance and protecting the environment. The Court observed that such measures “must begin at the grass-root level if they were to become the nation's pride.”

Further, the Court held that exchange can be made by any Bhumidhar under Section 101 of the Code of 2006 of his land with the land held by another Bhumidhar or entrusted or deemed to be entrusted to any gram panchayat or local authority under Section 59. However, the petitioner wanted to exchange from the land recorded as pond, which is not permissible, even if it has been created as abadi. The Court held that the land was liable to be vacated and restored as pond.

Accordingly, while dismissing the petition, the Court directed removal of any other encroachments on the said land.

Case Title: Mahadev Singh Dal Bahadur Singh vs. State Of U.P. Thru. Prin. Secy. ( Revenue), Lko. And Others 2023 LiveLaw (AB) 454 [WRIT - C No. - 9984 of 2023]

Citation: 2023 LiveLaw (AB) 454

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