- (1.) Heard Sri B.L.Verma, learned counsel for the petitioners, learned Standing Counsel for the State respondents, and Sri M.K.Yadav learned counsel appearing for the Gaon Sabha. Through this writ petition, following prayers have been made. A. Issue a writ order or direction in the nature of mandamus commanding or directing the respondents no. 2 and 3 keep clear the Arazi no. 396/0.0930 hectare recorded as Public Pond and inspect the encroachment/construction made by the respondents no. 4 to 8 and take legal action against them. B. Issue a writ order or direction in the nature of mandamus directing and prohibiting the respondents no. 4 to 8 not to raise and encroach upon the public pond. C. Issue a writ order or direction in the nature of mandamus commanding or directing the respondents no. 2 to 3 to take strict action in accordance with law against the respondents no. 4 to 8 and also stop the second installment or remaining balance in the scheme of Ram Manohar Lohiya Avas Yojna. D. Issue any such other and further orders as this Hon'ble Court may deem fit and proper under the circumstances of the case. E. Award the cost of the writ petition through out in favour of the petitioners. In substance, the petitioners appear to be aggrieved by encroachment over the pond on the Plot No. 396 measuring about 0.0930 hectare situated in Village Jamaluddinpur by respondents no. 4 to 8 by raising construction under Dr. Ram Manohar Lohiya Awas Yojana. Prayer has also been made for issuing a writ of mandmaus commanding the respondents no. 4 to 8 not to raise the construction and encroach upon the public pond. Further prayer has been made for issuing a writ of mandamus directing the respondents no. 2 and 3 to take strict action in accordance with law against the respondents no. 4 to 8. Sri Siddharth Singh, learned Additional Chief Standing Counsel appearing for the State respondents and learned counsel for the Gaon Sabha have raised a preliminary objection with regard to maintainability of the writ petition. In their submission, under the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as 'the Code') there is a specific provision under Section 67 of the Code and Rule 67 of Revenue Code Rules, 2016 (in short 'the Rules') for redressal of such kind of grievance and the petitioner may avail the aforesaid remedy instead of utilizing the forum of Article 226 of the Constitution of India, which is the extraordinary jurisdiction of this Court.
(2.) On being confronted as to whether any such approach has been made before the Assistant Collector of the concerned Tehsil, learned counsel for the petitioners submits that the petitioners have made an application before the Sub -Divisional Officer for redressal of their grievance. From the perusal of the application, it transpires that the application is not referable to any section under which it has been filed. Learned counsel for the petitioner could not show that it is the Sub -Divisional Officer who is the competent authority for ensuring removal of encroachment made over the gaon sabha land under the Code. Before commencement of Revenue Code 2006, which has been made effective since 10/11th February, 2016, there was a specific provision for removal of encroachment from gaon sabha land under Section 122 -B of U.P.Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act'). The corresponding rules, how to make application for removal of encroachment and how and in what manner authority competent has to take final decision and how to execute the order passed by the competent authority, were framed known as U.P.Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as 'Rules of 1952'). Here in the present code, in place of Section 122 -B of the Act, Section 67 of the Code has been enacted and in place of Rules 115 -C to 115 -E of the Rules 1952, Rule 67 has been framed under the Rules. For convenience, Section 122 -B of the Act and Section 67 of the Code are reproduced herein under : - JUDGEMENT_14_LAWS(ALL)7_2016.jpg JUDGEMENT_14_LAWS(ALL)7_20161.jpg JUDGEMENT_14_LAWS(ALL)7_20162.jpg JUDGEMENT_14_LAWS(ALL)7_20163.jpg
(3.) It will also not be out of place to mention that under Section 122 -A of the Act, the Superintendence, Management and Control over the Gaon Sabha Land was conferred upon the Land Management Committee. Here under Section 60 of the Code, the Superintendence, Management and Control of Bhumi Prabandhak Samiti has been provided and there is a separate Section 61 in the Code which talks about the management of tanks (ponds). For appreciation, Section 122 -A of the Act and Sections 60 and 61 of the Code are reproduced hereinunder. JUDGEMENT_14_LAWS(ALL)7_20164.jpg JUDGEMENT_14_LAWS(ALL)7_20165.jpg JUDGEMENT_14_LAWS(ALL)7_20166.jpg ;