Point of Law : Any person aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may within thirty days from the date of such order, prefer an appeal to the Collector

JUDGMENT :

1. Heard Shri Harish Chandra Mishra, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Shri Deepak Gaur, learned counsel for the Gaon Sabha.

2. The impugned order dated 30.11.2018 passed by the respondent No.3-Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, District-Jhansi, rendered in proceedings registered as Case No.T201806370201602 (Gaon Sabha Vs. Govind Singh) under Section 67 of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as the 'Code'), finds that the petitioner had illegally encroached over the disputed parcels of land, and accordingly it was directed that the petitioner be evicted from the disputed parcel of land. Damages and other charges were also imposed upon the petitioner.

3. The learned trial court in the impugned order dated 30.11.2018 has noticed that the Lekhpal in his cross examination had admitted that the disputed parcels of land were not demarcated and the house appeared to be of old vintage.

4. The learned appellate court/Additional Collector (Judicial), Jhansi by the impugned order dated 30.06.2021 agreed with the findings of the learned trial court/Tehsildar/Assistant Collector 1st Class, Tehsil-Moth, District-Jhansi, and affirmed its judgment dated 30.11.2018.

5. Shri Harish Chandra Mishra, learned counsel for the petitioner contends that the defence of Section 67A of the U.P. Revenue Code, 2006 taken by the petitioner was not adverted to by both the courts below. Further without proper demarcation of the lands, a finding of illegal encroachment cannot be returned.

6. Learned Standing Counsel for the State-respondent as well as Shri Deepak Gaur, learned counsel for the Gaon Sabha could not satisfactorily dispute the aforesaid submissions on fact and law.

7. All relevant facts for just adjudication of the controversy can be prised out from the impugned orders. Exchange of affidavits shall unnecessarily delay the disposal of the controversy. With consent of parties the matter is being decided finally.

8. To make a finding of illegal encroachment upon any disputed parcel of land in proceedings taken out under Section 67 of the U.P. Revenue Code, 2006, the demarcation of the boundaries of the disputed parcel of land is an essential prerequisite. Admittedly, the same has not been done in this case. In fact the Lekhpal had admitted before the court below that the disputed plots were not demarcated. On this count alone the finding of illegal encroachment made by the learned court below is vitiated.

9. The petitioner claimed entitlement to the protection of Section 67A of the U.P. Revenue Code, 2006. It is noteworthy that the Lekhpal had also deposed that the house is of old vintage. The learned courts below have clearly neglected to consider the aforesaid issue. This reflects non application of mind.

10. 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, sh