JUDGMENT

Saurabh Srivastava, J.

Heard Shri Jagat Narayan Mishra, learned counsel for the petitioner and learned Standing Counsel for the State respondents as well as Sri Achal Singh, learned counsel for the respondent no.4.

2. The impugned order dated 10.06.2022 passed by the respondent No.3, Tehsildar, Sadar- Banda, District-Banda, rendered in proceedings registered as Computerized Case No. T201807110100721, under Section 67 (5) 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 petitioners be evicted from the disputed parcel of land. Damages and other charges were also imposed upon the petitioner.

3. The learned Appellate Court, respondent no.2, by the impugned order dated 15.05.2023 agreed with the findings of the learned trial court-Tehsildar, Sadar- Banda, District-Banda, and affirmed its order dated 10.06.2022.

4. Shri Jagat Narayan Mishra, learned counsel for the petitioner contended 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 concerned. Further without proper demarcation of the lands, a finding of illegal encroachment cannot be determined.

5. Learned Standing Counsel for the State-respondent contended that protection of Section 67 -A of the U.P. Revenue Code, 2006 can only be allowed to persons who satisfy the mandatory preconditions for the same.

6. All these 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.

7. 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. On this count alone, the finding of illegal encroachment made by the learned court concerned is vitiated.

8. The petitioners claimed entitlement to the protection of Section 67A of the U.P. Revenue Code, 2006. The learned courts concerned have clearly neglected to consider the aforesaid issue. This reflects non application of mind.

9. 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, shall inform the Assistant Collector concerned in the manner prescribe