- (1.) This is a Public Interest Litigation instituted by the petitioner, who claims himself to be a member of the Gaon Sabha of Village Jairajpur, Tehsil Sagri, District Azamgarh. The prayer made in the present petition is to direct the District Magistrate, Azamgarh to secure the removal of unauthorized occupation and encroachment by the respondent No. 1 from two plots of land, which according to the petitioner is public property vested in the Gaon Sabha. It is urged that the District Magistrate has failed to take any action and, therefore, prejudicial to public interest.
(2.) Shri S.S. Rathore, learned counsel for the petitioner contends that two plots namely plot No. 712 area 0.0180 hectare and plot No. 713 area 0.0310 hectare are entered in the revenue record as land submerged under water and land which is not under cultivation respectively, and therefore, the same being land belonging to the Gaon Sabha cannot be encroached, which is being attempted by the respondent No. 1 -Sana Ullah a resident of the same village.
(3.) We have perused the revenue extract and it appears that plot No. 712 has been entered as an area submerged under water and plot No. 713 has been entered as Banjar (uncultivable land). The provision under which how such encroachments are to be removed at the instance of the Gaon Sabha is provided for in Section 122-B of the U.P.Z.A. & L.R. Act, which is quoted below : "122-B. Powers of the Land Management Committee and the Collector- (1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land. (3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding thirty days from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. (4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2) he shall discharge the notice. (4-A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333. (4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed. (4-C) Notwithstanding anything contained in Section 333 or Section 333- A, but subject to the provisions of this section- (i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4-A) and (4-D), be final. (ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-D), be final. (4-D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a Court of competent jurisdiction to establish the right claimed by him in such property. (4-E) No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A). Explanation.-For the purposes of this section, the expression 'Collector' means the officer appointed as 'Collector' under the provisions of the U.P. Land Revenue Act, 1901 and includes an Additional Collector. (4-F) Notwithstanding anything in the foregoing sub-section, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before May 13,2007 and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land. (5) Rules 115-C to 115-H of the U. P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, 1961, as if this section has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provisions of this Act.";