Rama Shankar And 3 Others vs The State Of U.P. And 4 Others
- Court
- Allahabad High Court
A.F.R.
Reserved On: 06.05.2026
Delivered On: 01.07.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 15932 of 2026
Rama Shankar and 3 others
…..Petitioner(s)
Versus
The State of U.P. and 4 others
…..Respondent(s)
Counsel for Petitioner(s) : Pramod Kumar Maurya
Counsel for Respondent(s) : C.S.C., Sudhir Bharti
Court No. - 33
HON'BLE MANISH KUMAR NIGAM, J.
1. This petition has been filed for the following reliefs:-
“A. Issue a writ, order or direction in the nature of writ of mandamus
directing and commanding the respondent no.3 to conclude the proceedings
of Section 67 (A) of U.P. Revenue Code, 2006 upon the application dated
28.03.2026 filed by the petitioners, expeditiously within stipulated period as
fixed by this Hon'ble Court.
B. Issue a writ, order or direction in the nature of writ of mandamus
directing the respondent no. 4 to drop the proceedings of section 67 (1) of
U.P. Revenue Code, 2006 as case no. 14 of 2025 (Gaon Sabha Vs. Teerath),
case no. 15 of 2025 (Gaon Sabha Vs. Om Prakash), case no. 16 of 2025
(Gaon Sabha Vs. Ram Pratap) and case no. 17 of 2025 (Gaon Sabha Vs.
Rama Shankar) till of the disposal application dated 28.03.2026 filed by the
petitioners before respondent no.3 under section 67 (A) of the U.P. Revenue
Code, 2006.”
2. Brief facts of the case are that petitioner Nos. 1, 2, and 3 claim
themselves belonging to Scheduled Castes community and petitioner No.
4 belongs to Other Backward Class. Plot No. 466 area 0.0450 hectare
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situated at Village Karmaha Bujurg, Tola Reharwa, Post- Khas Khuthan,
Tehsil- Sadar, District Gorakhpur is recorded as rasta in the revenue
record. Case of the petitioners as set up in the writ petition is that their
ancestors have constructed kaccha house adjacent to public path, which is
recorded in the revenue record as Gata No. 460 and they are residing along
with their family members in the house constructed by their ancestors and
now, the petitioners have constructed a pakka house in place of kaccha
house and the re is no other house of the petitioners except the house in
question. It has also been claimed that the rasta recorded in revenue
record is situated in front of the house of the petitioners and they have
not obstructed the rasta in any manner. A notice in the form of R.C.-20
was issued to the petitioners on 26.02.2026 mentioning therein that the
petitioners have encroached upon Arazi No. 466 by constructing
permanent house and they have been directed to submit reply to the
notice. In response to the notice issued to the petitioners, petitioners filed
their objections reiterating the pleas mentioned above and has also
claimed benefit of Section 67-A of U.P. Revenue Code, 2006. It has been
further case of the petitioners that they have also filed an application
under Section 67-A of U.P. Revenue Code, 2006 before respondent no.3
i.e. Sub Divisional Magistrate/Deputy Collector, Tehsil-Sadar, District-
Gorakhpur on 28.03.2026. Despite application being filed by the
petitioners, the case has not been registered by the respondent authorities
nor any date has been fixed in the matter. It has also been stated in the
writ petition that the respondents are adamant to remove the house of the
petitioners, though the petitioners are entitled to get benefit of Section
67-A of U.P. Revenue Code, 2006. Petitioners have also claimed that
they are landless persons. Prayer has been made in the writ petition for
issuance of mandamus commanding respondent no. 3 to conclude the
proceedings of Section 67-A of U.P. Revenue Code, 2006 pursuant to
their application dated 28.03.2026 expeditiously in a time frame as may
be fixed by this court. The other prayer in the writ petition is for issuance
of mandamus directing respondent no. 4 to drop the proceedings under
Section 67(1) of U.P. Revenue Code, 2006 registered as case no. 14 of
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2025 (Gaon Sabha Vs. Teerath), case no. 15 of 2025 (Gaon Sabha Vs.
Om Prakash), case no. 16 of 2025 (Gaon Sabha Vs. Ram Pratap) and
case no. 17 of 2025 (Gaon Sabha Vs. Rama Shankar).
3. It has been contended by learned counsel for the petitioners that
unless the proceedings under Section 67-A of U.P. Revenue Code, 2006,
which are beneficial in nature and protects the possession of the
petitioners, are decided, the authorities should not proceed with the
proceedings under Section 67(1) of U.P. Revenue Code, 2006 and the
proceeding under Section 67- A initiated by the the petitioners be
decided first.
4. Learned counsel for the petitioners relied upon judgments of this
Court in cases of Suresh Chandra Vs. State of U.P. and 3 others; 2018
(2) All WC 1675, Govind Singh Vs. State of U.P. and others in Writ
C No. 20493 of 2021; Neutral Citation 2021:AHC:101519, Baburam
Vs. State of U.P. and 3 others; 2021 (153) RD 1 and Asgar Vs. State
of U.P. and 3 others; 2021 (4) All WC 3831.
5. Per contra, learned Standing Counsel has made following
submissions:-
(a) That application filed by the petitioners under Section 67-A of U.P.
Revenue Code, 2006 itself is not maintainable and could not be
entertained at all. It is further submitted that statutory fiction
contemplated under Section 67- A of U.P. Revenue Code, 2006 is a legal
fiction of a very limited scope and could come to rescue of a particular
category of unauthorized occupant of a land vested in Gaon Sabha but
they can only successfully resist the proceedings for eviction of such an
occupant initiated under Section 67 U.P. Revenue Code, 2006.
That the deeming clause contained in Section 67- A of U.P. Revenue
(b)
Code, 2006 could not over ride the provisions of the Code other than
Section 67 of U.P. Revenue Code, 2006 and the operation of Section 67-A
of U.P. Revenue Code, 2006 was to remain confine to the proceedings
under Section 67 of U.P. Revenue Code, 2006. Section 67 -A of U.P.
Revenue Code, 2006 and the machinery provided therein only secures the rights
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conferred in favour of a person to enter upon and continue to remain in
possession over the land in respect of which allotment is to be made on
the basis of priority; preference over and above any agricultural labourer
envisaged under Section 63 of the U.P. Revenue Code, 2006. In this
regard, learned Standing Counsel has relied upon judgments of this
Court in case of Ramdin and others Vs. Board of Revenue, U.P.
Allahabad and others; 1994 RD 395 and Achhaibar Tiwari Vs.
Additional Commissioner (J) II, Gorakhpur Division and others,
2003 (94) RD 400.
(c) That the issue in the present writ petition is whether the petitioners
are entitled of benefit of Section 67-A of U.P. Revenue Code, 2006
which provides that in case the house exists over the land referred to
under Section 63 of U.P. Revenue Code, 2006, having been built prior to
November 29, 2012, the housing site can be settled with its owner on
such terms and conditions as may be specified. Section 63 of U.P.
Revenue Code, 2006 speaks of land which may be allotted for abadi site
and empowers the Sub-Divisional Officer on his own motion or on the
resolution of the Land Management Committee to earmark the land for
abadi site. The second requirement for a person to be entitled for benefit
of Section 67-A of U.P. Revenue Code, 2006 is that he should be a
person referred in sub-section (1) of Section 64 of U.P. Revenue Code,
2006. Section 64 shows the order of preference to be followed up while
making the allotment of an abadi site. Highest in this order of preference
are agricultural labourers or village artisans belonging to Schedule Caste
and Schedule Tribe, followed by Other Backward Classes and thereafter
by persons living below the poverty line.
(d) That averments made in the wri t petition as well as application under
Section 67-A of U.P. Revenue Code, 2006, reveals that nowhere the
petitioners have stated that no agricultural labourer or village artisans
belonging to Schedule Caste or Schedule Tribe are residing in the village
concerned. This was necessarily required to be pleaded by them. Merely
because a person lower in order of preference has encroached upon Gaon
Sabha land, he cannot and should not be granted the benefit of Section
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67-A unless and until he is in a position to establish categorically that a
person higher in preference is not available in the village. Any other
interpretation of Section 67-A would result in great injustice as an
unauthorized occupant would be liable to be granted its benefit only on
account of him or her having illegally encroached upon Gaon Sabha
property, despite other needier and persons higher in preference being
available in the village. In this regard, the learned Standing Counsel has
relied upon the judgment of this court in the case of Sri Raju Vs. State
of U.P. and others; 2020(1) All WC 843 834, and judgment in the case
of Baijnath Vs. Commissioner Varanasi and 4 others; 2020 (147) RD
360.
6. Before considering the submissions made by learned counsel for the
petitioners, it would be appropriate to look into the relevant provisions
of the statute. Section 67 of U.P. Revenue Code, 2006 is quoted as
under:-
“ 67. Power to prevent damages, misappropriation and wrongful
occupation of Gram Panchayat properties. (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
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 Code, he shall issue notice to the person concerned to
show cause why compensation for damage, misappropriation or wrongful
occupation not exceeding the amount specified in the notice be not
recovered from him and 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 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 shall 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 or misappropriation of the
property or for wrongful occupation, as the case may be, 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
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occupation referred to in the notice under sub-section (2), he shall
discharge the notice.
(5) 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.
(6) Notwithstanding anything contained in any other provision of this Code,
and subject to the provisions of this section every order of the Assistant
Collector under this section shall, subject to the provisions of sub-section
(5) be final.
(7) The procedure to be followed in any action taken under this section
shall be such as may be prescribed.
Explanation. - For the purposes of this section, the word 'land' shall include
the trees and buildings standing thereon.”
7. It would also be relevant to look into the rules framed regarding
procedure to be followed by the authorities in proceeding under Section
67 of U.P. Revenue Code, 2006. The procedure has been prescribed
under Rules 66 and 67 of U.P. Revenue Code Rules, 2016, and the same
are quoted as under:-
“ 66. Information to Assistant Collector- The information to Assistant
Collector required by section 67(1) shall be submitted by the Chairman or
any member or the Secretary of the Land Management Committee, or any
officer of the Local Authority concerned in R.C. Form-19.
67. Further inquiry by Assistant Collector- (1) On receipt of the
information under rule 66, or on facts otherwise coming to his knowledge,
the Assistant Collector may make such inquiry as he deems proper and may
obtain further information regarding the following points:-
(a) full description of damage or misappropriation caused or the wrongful
occupation made with details of village, plot number, area, boundary,
property damaged or misappropriated and market value thereof,
(b) full address along with parentage of the person responsible for such
damage, misappropriation or wrongful occupation;
(c) period of wrongful occupation, damage or misappropriation and class
of soil of the plots involved;
(d) value of the property damaged or misappropriated calculated at the
circle rate fixed by the Collector and the amount sought to be recovered as
damages
(2) The Assistant Collector shall thereafter proceed to take action under
section 67(2) and for that purpose issue a notice to the person concerned in
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R.C. Form-20 to show cause as to why compensation for damage,
misappropriation or wrongful occupation not exceeding the amount
specified in the notice be not recovered from him and why he should not be
evicted from such land.
(3) If the notice referred to in section 67(2) remains uncomplied with or if
the cause shown by the person concerned is found to be insufficient, the
Assistant Collector may direct by order that-
(a) such person be evicted by using such force as may be necessary, or
(b) the amount of compensation for damage or wrongful occupation
ordered by the Assistant Collector, if not paid in specified time, may be
recovered as arrears of land revenue, including the amount of expenses
referred to in sub-rule (3).
(4) The amount of damages sought to be recovered and the expenses of
execution of the order shall be specified in such notice, which shall be
determined in the following manner:-
(a) In the case of damage or misappropriation, the amount of damages
shall be assessed at the prevailing market rate
(b) In the case of unauthorized occupation of any land, the amount of
damages shall be the amount equal to the five percent of the market value
of the land calculated at the circle rate fixed by the Collector for each year
of unauthorized occupation.
(c) The expenses of execution of the order shall be assessed on the basis of
one day's pay and allowances payable to the staff deputed.
(5) If the person wrongfully occupying the land has done cultivation
therein, he may be allowed to retain possession thereof until he has
harvested the crops subject to the payment by him of the amount equal to
the five percent of the market value of the land calculated as per the circle
rate which shall be credited to the Consolidated Gaon Fund or the Fund of
the local authority other than the Gram Panchayat as the case may be. If
the person concerned does not make the payment of the aforesaid amount
within the period specified in the notice in R.C.Form-20, the possession of
the land shall be delivered to the Land Management Committee or the local
authority, as the case may be, together with the crop:
Provided that where such person again wrongfully occupies the same land
or any other land within the jurisdiction of the Gram Panchayat or the
local authority as the case may be, he shall be evicted therefrom forthwith
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and possession of the land vacant or together with the crop thereon shall be
delivered to the Land Management Committee or the local authority as the
case may be.
(6) The Assistant Collector shall make an endeavour to conclude the
proceeding under section 67 of the Code within the period of ninety days
from the date of issuance of the show cause notice and if the proceeding is
not concluded within such period the reasons for the same shall be
recorded.
(7) Nothing in sub-rule (5) shall debar the Land Management Committee or
the local authority as the case may be from prosecuting the person who
encroaches upon the same land second time in spite of having been evicted
under the Code or the rules, under section 447 of the Indian Penal Code,
1860.
(8) There shall be maintained in the office of each Collector a register in
R.C. Form-21 showing details of the amount ordered to be realized on
account of damages and compensation awarded in proceedings under
section 67.
(9) A similar register shall also be maintained by each tahsildar showing
realization of damages and compensation awarded in such proceeding. The
entries made in the register maintained at tahsil shall be compared with the
register maintained by the Collector to ensure accuracy of the entries made
therein.
(10) A progress report showing realization of damages and compensation
awarded in proceedings under section 67 shall be sent to Board of Revenue,
U.P., Lucknow by the fifteenth day of April and October every year. The
Board after consolidating the report so received from the districts shall
send it to the Government.
(11) Nothing in rules 66 and 67 shall debar any person from establishment
of his right, title or interest in a court of competent jurisdiction in
accordance with the law for the time being in force in respect of any matter
for which any order has been made under section 67 of the Code.”
8. Forerunner of Section 67 of U.P. Revenue Code, 2006 is Section
122-B of U.P.Z.A & L.R. Act, 1950, which is reproduced as under:-
“122B. Powers of the Land Management Committee and the Collector.
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[(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] [Substituted by U.P. Act No. 20 of
1982 (w.e.f. 03.06.1981).] 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-
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(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-sections, 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] [Substituted by U.P. Act No. 24 of 1986.] 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.] [Substituted by U.P. Act No. 11 of 2002 (w.e.f. 21.6.2002).]]
Explanation. - The expression "agricultural labourer" shall have the
meaning assigned to it in Section 198.
(5)[ Rules 115-C to 115-H of the U.R 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, 1950 as
amended by the Uttar Pradesh Land Laws (Second Amendment) 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.] [Substituted by U.P. Act No. 35
of 1976.]”
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9. Section 67-A of U.P. Revenue Code, 2006 provides for settlement of
certain house sites with the existing owners. Section 67-A of U.P.
Revenue Code, 2006 is quoted as under:-
“ 67-A Certain house sites to be settled with existing owners thereof.- (1) If
any person referred to in sub-section (1) of section 64 has built a house on
any land referred to in section 63 of this Code, not being land reserved for
any public purpose, and such house exits on the November 29, 2012, the
site of such house shall be held by the owner of the house on such terms and
conditions as may be prescribed.
(2) Where any person referred to in sub-section (1) of section 64, has built a
house on any land held by a tenure holder (not being a government lessee)
and such house exits on November 29, 2000, the site of such house,
notwithstanding anything contained in this Code, be deemed to be settled
with the owner of such house by the tenure holder on such terms and
conditions as may be prescribed.
Explanation. For the purpose of sub-section (2), a house existing on
November 29, 2000, on any land held by a tenure holder, shall, unless the
contrary is proved, be presumed to have been built by the occupant thereof
and where the occupants are members of one family by the head of that
family.”
10. The relevant rules as framed is Rule 68 of U.P. Revenue Code Rules,
2016, which is also quoted as under:-
“68. Settlement of house sites with existing owners thereof ( Section 67-A)
( 1) Where any person referred to in sub-section (1) of section 64 has built a
house on any land referred to in section 63 of the Code, not being land
reserved for any public purpose and such house exists on twenty-ninth day
of November 2012, the site of such house shall be held by the owner of the
house on terms and conditions prescribed in rule 64.
Note:- For the removal of doubt it is hereby declared that the maximum
area of the site settled under section 67-A (1) of the Code or the rules famed
there under shall not exceed two hundred square meters.
(2) Where any person referred to in sub-section (1) of section 64 has built a
house on any land held by a tenure holder (not being a government lessee)
and such house exists on twenty-ninth day of November 2000, the site of
such house shall be deemed to be held by the owner of the house on the
following terms and conditions -
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(a) the maximum area of the site settled under section 67-A (2) of the Code
or the rules framed thereunder shall not exceed two hundred square meters.
(b) the owner of the house as well as his heirs shall have a heritable interest
in the site and shall also have unrestricted right to use the trees and wells
existing on the site subject to existing rights of easements.
(c) he shall have a right to use the site for construction of a residential
house, subject to existing rights of easement.
(d) the owner of the house shall not be liable to pay to the tenure holder or
the State Government any future rent in respect of the site.
(e) the succession over the site shall be governed by personal law which the
house owner was subject to.
(f) the owner of the house and his heirs shall not be liable to ejectment on
any ground whatsoever.
(g) if the building is abandoned or if the owner thereof dies without any
heir entitled to succeed, the land or site shall escheat to the State.
(h) the tenure holder shall be allowed remission of the proportionate land
revenue for the portion of his holding settled under this rule with house
owners. The land shall also be classified as abadi in the Khatauni
maintained under the Code.”
11. The forerunner of Section 67-A of U.P. Revenue Code, 2006 is
Section 123 of U.P. Z.A. & L.R. Act, 1950 which is reproduced below:-
“1 23. Certain house sites to be settled with existing owner thereof.
- [(1)] Without prejudice to the provisions of Section 9, where any person
referred to in sub-section (3) of Section 122-C has built a house on any land
referred to in subsection (2) of that section, not being land reserved for any
public purpose, and such house exists on [May 13, 2007] the site of such
house shall be held by the owner of the house on terms and conditions as
may be prescribed.
(2)[ Where any person referred to in sub-section (3) of Section 122-C has
built a house on any land held by a tenure-holder (not being a Government
lessee) and such house exists on [June 3, 1995] the site of such house shall,
notwithstanding anything contained in this Act, be deemed to be settled with
the owner of such house by the tenure-holder on such terms and conditions
as may be prescribed.
Explanation. - For the purposes of sub-section (2), a house existing on
[June 3, 1995] on any land held by a tenure-holder shall, unless the
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contrary is proved, be presumed to have been built by the occupant thereof,
and where the occupants are members of one family by the head of that
family.]”
12. The legislature by enacting the Section 67 of U.P. Revenue Code,
2006 has recognized the vulnerability of State land to illegal
encroachment and the need for urgent corrective measures. The grabbing
of Gaon Sabha and Gram Panchayat property was being done on a large
scale and the provision of speedy action against unscrupulous persons
was necessary. In this view of the matter, the Bhumi Prabandhak Samiti,
local authority and the Lekhpal has been enjoined with the duty to
inform the Assistant Collector concerned about the damages,
misappropriation or wrongful occupation of the property belonging to
Gram Panchayat. On receiving such information or otherwise, if the
Assistant Collector is satisfied that any property referred to in sub-
section (1) of Section 67 of U.P. Revenue Code, 2006 has been damaged
or misappropriated or is in unauthorized occupation of any person, he
shall direct that such person may be evicted from the land and the
amount of compensation may be recovered from him as areas of land
revenue after issuing notice to the person concerned and following the
procedure prescribed under Section 67 of U.P. Revenue Code, 2006 read
with Rules 66 and 67 of U.P. Revenue Code Rules, 2016.
13. Section 67- A of U.P. Revenue Code, 2006 ( old Section 123 of U.P.
Z.A. & L.R. Act, 1950) seeks to introduce a scheme of social justice for
hundreds of those rural indigents who, due to their meager means, are
unable to have shed over their heads. The constitutional goal of shelter to
all is a fundamental right guaranteed under Article 21 of the Constitution
of India, and this provision can be said to be a step in that direction. By
means of legal fixation, sub-section (1) of Section 67-A of U.P. Revenue
Code, 2006 provides that if a person belonging to various categories
specified in Section 64(1) of U.P. Revenue Code, 2006 has built a house
on any land referred to under Section 63 of U.P. Revenue Code, 2006,
(not being land reserved for public purpose), and such house exists on
November 29, 2012 i.e. the date on which the President gave assent to
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U.P. Revenue Code, 2006, the site of such house shall be held by the
owner of the said house on such terms and conditions as may be
prescribed.
14. Benefit of Section 67-A of U.P. Revenue Code, 2006 can be derived
only when the house exists on certain lands specified in the said section.
But the word ‘house’ has nowhere been defined. According to the
dictionary meaning, a house means a building where a group of people
live as a unit. But there is material difference between the term building
and the house. Section 9 of U.P.Z.A. & L.R. Act, 1950, used the word
building, which could be used for residential as well as non-residential
purpose, but the house is used only for residential purposes.
15. From the perusal of provisions quoted above i.e. Section 122- B and
123 of U.P.Z.A.& L.R. Act, 1950, and Section 67 and 67-A of U.P.
Revenue Code 2006, it is apparent that earlier U.P.Z.A.& L.R. Act, 1950
protected unauthorized occupation of land by the agricultural labourers
belonging to Scheduled Caste and Scheduled Tribe in any land vested in
Gaon Sabha under Section 117 (not being land mentioned under Section
132), having occupied from a date as provided in the section itself and
also conferred Bhumidhari rights to the aforesaid illegal occupants.
Section 123 of U.P.Z.A.& L.R. Act, 1950 provided protection by settling
housing sites to the persons who have built a house on the land on or
before the appointed date, to the persons referred in sub-Section 3 of
Section 122-C of U.P.Z.A.& L.R. Act, 1950. Thus, both the agricultural
land as well as housing sites which were in occupation of persons
belonging to certain persons mentioned in section itself unauthorizedly
were protected by U.P.Z.A.& L.R. Act, 1950 but in the U.P. Revenue
Code 2006, there is no such protection to the person unauthorizedly
occupying agricultural land belonging to Gaon Sabha. Section 67-A of
U.P. Revenue Code, 2006 provides settlement of housing sites to the
person unauthorizedly occupying the same on the cutoff date on the
conditions mentioned in Sections and the Rules framed thereunder.
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16. In case of Ramdin and others vs. Board of Revenue (supra), the
court was considering the provision of section 122-B (4-F). Paragraph
Nos. 26, 27, 38, 43, 44 of the judgment are quoted as under:-
“26. The non obstante clause of Section 122-B (4-F) of the Act specifically refers
to the foregoing sub-section of Section 122-B, meaning thereby that this non
obstante clause can have application to Section 122-B(1), (2), (3), (4), (4-A), (4-
B), (4-C), (4-D) and (4-E) only. Further, Section 122-B (4-F) refers to any
agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe which
person falls in the third category of the order of preference prescribed under
Section 198 of the Act. If the non obstante clause is confined to the provision
contained in Section 122-B only, it is obvious that it cannot supersede the first
two categories in the order of preference prescribed under Section 198 of the Act
and in no case any agricultural labourer stipulated under Section 122-B (4-F)
even if he satisfied the requirements contemplated therein can be deemed to be
admitted as a bhumidhar with non-transferable right's in the presence of an
eligible person willing to take the land who falls within the first two categories
stipulated in Section 198 of the Act, In this connection it may further be pointed
out that a Statute must be read as a whole and one provision of the Act should be
construed with reference to the other provision of the same Act so as to make a
consistent enactment of the whole Statute. Such a construction has the merit of
avoiding any inconsistency or repugnancy between a section and other parts of
the Statute.....
27. Further, the admission as a bhumidhar with non-transferable rights under
Section 195 of the, Act could only be in accordance with the provisions contained
in Section 131 of the Act. Section 131(a) of the Act stipulated that for becoming a
bhumidhar with non-transferable rights after the date mentioned in that sub-
section, the admission has to be in accordance with Section 195 of the Act which
necessarily implies the obtaining of the prior approval of the Assistant Collector
and also that the procedure prescribed under Rules 175 and 176 of the Rules has
to be complied with. However, it may be noticed that Section 131 also stipulates
that a person who in any other manner acquires on or after the date mentioned
in Section 131(a), the rights of such bhumidhar under or in accordance with the
provisions of the Act may also become a bhumidhar with nontransferable rights.
38.Taking into consideration, the scheme and the policy underlying the various
provisions of the Act referred to hereinbefore, I am of the confirmed opinion that
the right conferred under the deeming clause contained under Section 122-B (4-
F) of the Act has to be taken as to confer a right only made available to an
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WRIC No. - 15932 of 2026
unauthorised occupant of the land envisaged under Section 122-B, who satisfies
the eligibility criteria prescribed therein to protect his possession and does not
create a title in him. It merely operates as a bar to the claim of the Gaon Sabha
or the local authority either for the ejectment of the person concerned or for
recovery of the amount of compensation for damage, misappropriation or
wrongful occupation from such person as provided thereunder. This provision in
spite of the conditions mentioned in Section 122-B having been fulfilled debars
the Gaon Sabha or the ‘local authority on account of the statutory fiction from
enforcing its rights secured in its favour under the aforesaid provision. The
unauthorised occupant envisaged under Section 122-B (4-F) of the Act only gets
a right to protect his possession which may be regularised on the grant of the
lease under Section 198 of the Act but this fiction cannot be deemed to create
such right or title on such an occupant which can only accrue on the grant of the
lease in accordance with the procedure prescribed under Section 198 of the Act.
It is thereafter that such person can get the revenue entries in the record of Right
(Khatauni) corrected and not merely on the basis of the statutory fiction in
question.
43. In the circumstances therefore, taking into consideration the provisions
contained in S. 122-B, 122-B(4-F), 131, 142(2), 198, 198-A and 209 of the Act
and Rules 175, 176, 176-A of the Rules framed thereunder it is obvious that in
case, the requisite conditions contemplated in S. 122-B(4-F) are satisfied in any
particular case, the Gaon Sabha or the Local Authority as the case may be is
debarred from taking any action under S. 122-B against such labourer deeming
him to have been admitted as bhumidhar with non-transferable rights of the land
in his occupation under S. 195 of the Act. However, this could not come in the
way of the regular allotment of the land as contemplated under S. 198 of the Act
or in the way of the filing of the suit under S. 209 of the Act against such a
person subject to the exception contemplated under S. 122-B(4-E) of the Act.
44. In the facts and circumstances of the case, I am clearly of the view that there
could be no escape from the conclusion that the application filed by the
petitioners was not at all maintainable and no orders for the correctness of the
revenue record of Rights could be made on its basis. I am further of the view that
in the facts and circumstances of the case, no justifiable ground has been made
out for interference in the impugned order.”
17. In case of Satya Veer and others vs. State of UP and others; 2015
(4) ADJ 676 this court was considering the provisions of Section 123
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(1) of U.P.Z.A. & L. R. Act, 1950 and held as under in paragraph Nos.
25, 26, 27, 37, and 38 as under:-
“ 25. Section 197 of the Act, however, gives power to the Land Management
Committee to admit any person as 'Aasami' to any land falling in any of the
clauses mentioned in Section 132. Thus, under the Scheme of "U.P. Zamindari,
Abolition & Land Reforms Act" but for the aforesaid provisions of Sub-section
(4F), the rights of any person as Bhumidhar with transferable or non-
transferable rights, as the case may, unless his name is duly recorded in the
revenue records has not been recognised except where such person seeks
declaration by filing a suit under Section 229-B of the Act. It is only by virtue of
sub-section (4F) of Section 122-B that the agricultural labourer who fulfils the
conditions given therein is not required to seek a declaration by filing a suit and
can be admitted as "Bhumidhar with non-transferable rights" under Section 195.
26. Thus, from a reading of the provisions of Section 122-B in its entirety, it is
clear that sub-section (4F) is not a provision for seeking declaration of the rights
of a person who is in occupation of the Gaon-Sabha land for declaring him as
"Bhumidhar with non-transferable rights". In fact, it is a right to defend, if such
a person is to be evicted or dispossessed from the land of Gaon-Sabha in an
appropriate provision under the Act. Thus, the occupant as described in Sub-
section (4F), who is sought to be evicted from the Gaon-Sabha land, would have
a right to plead and establish that since his possession has continued since
before the cut-off date, rights had precipitated in his favour and he is a
Bhumidhar of the land with non-transferable rights, if such plea is raised the
same would be considered by the authority concerned before evicting that
person.
27. The right of defence given under the said provision to an Agricultural
labourer belonging to Scheduled Caste/Scheduled Tribe cannot be taken as a
right of seeking declaration under the aforesaid provisions. Meaning thereby,
Section 122-B (4F) cannot be taken recourse for recording entry in the
'Khatauni'.
37. Now the question remains as to whether the Sub-Divisional Officer has
jurisdiction to give benefit of Section 123 of the Act. To answer this question, it
may be seen that Section 123 is a provision relating to certain qualifying persons
in possession of the land on certain conditions in which the land can be settled in
favour of those persons. Thus the section provides a definition of approval of
legal rights on satisfaction of certain conditions. No proceeding under Section
123 of the U.P.Z.A. & L.R. Act is sustainable because this provision is not
procedural. The rights can only be settled under a proceeding in substantive law.
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38. Under the scheme of the Act, no declaration can be made in favour of a
person other than a tenure holder. Section 143 of the Act only contemplates
declaration in favour of a tenure holder. As the petitioners, admittedly are not
tenure holders of the land, no declaration under the Act can be made in the facts
of the present case. Hence, no declaration of rights as conceived under Section
123(1) of the Act is possible. Only course open before the petitioners was to file a
regular suit for declaration of their rights, if any.”
18. The judgment in case of Ramdin (supra) was considered by Hon’ble
Supreme Court in case of Manorey alias Manohar Vs. Board of
Revenue and others, 2003 AIR SC 4102, and the same was overruled
by the Supreme Court. Paragraph numbers 7, 8, 9, 10 of the judgment in
case of Manorey (supra) are quoted as under:-
“ 7. It is true that the application of the nature filed by the appellant does not fall
within the four corners of Section 122B. Sub-Sections (1), (2) & (3) of Section
122B only empower the Assistant Collector to initiate action on the basis of
information received by him to put an end to misuse or unauthorized occupation
of the property belonging to Gaon Sabha or a local authority. It does not
specifically provide for the entertainment of an application by a person who
seeks protection of his rights under sub-Section (4F). But, that is of no material
consequence in view of what emerges from the discussion that follows.
8. First, the endeavour should be to analyze and identify the nature of the right
or protection conferred by sub-Section (4F) of Section 122B. Sub-Sections (1) to
(3) and the ancillary provisions upto sub-Section (4E) deal inter alia with the
procedure for eviction of unauthorized occupants of land vested in Gaon Sabha.
Sub- Section (4F) carves out an exception in favour of an agricultural labourer
belonging to a Scheduled Caste or Scheduled Tribe having land below the ceiling
of 3.125 acres. Irrespective of the circumstances in which such eligible person
occupied the land vested in Gaon Sabha (other than the land mentioned in
Section 132), no action to evict him shall be taken and moreover, he shall be
deemed to have been admitted as a Bhumidhar with non transferable rights over
the land, provided he satisfies the conditions specified in the sub-Section.
According to the findings of the Sub- Divisional Officer as well as the appellate
authority, the appellant does satisfy the conditions. If so, two legal consequences
follow. Such occupant of the land shall not be evicted by taking recourse to sub-
Section (1) to (3) of Section 122B. It means that the occupant of the land who
satisfies the conditions under sub-Section (4F) is entitled to safeguard his
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WRIC No. - 15932 of 2026
possession as against the Gaon Sabha. The second and more important right
which sub-Section (4F) confers on him is that he is endowed with the rights of a
Bhumidhar with non transferable rights. The deeming provision has been
specifically enacted as a measure of agrarian reform, with a thrust on socio-
economic justice. The statutorily conferred right of Bhumidhar with non-
transferable rights finds its echo in clause (b) of Section 131. Any person who
acquires the rights of Bhumidhar under or in accordance with the provisions of
the Act is recognized under Section 131 as falling within the class of Bhumidhar.
The right acquired or accrued under sub-Section (4F) is one such right that falls
within the purview of Section 131(b).
9. Thus, sub-Section (4F) of Section 122B not merely provides a shield to protect
the possession as opined by the High Court, but it also confers a positive right of
Bhumidhar on the occupant of the land satisfying the criteria laid down in that
sub-Section. Notwithstanding the clear language in which the deeming provision
is couched and the ameliorative purpose of the legislation, the learned single
Judge of the High Court had taken the view in Ramdin Vs. Board of Revenue
(supra) (followed by the same learned Judge in the instant case) that the
Bhumidhari rights of the occupant contemplated by sub-Section (4F) can only
blossom out when there is a specific allotment order by the Land Management
Committee under Section 198. According to the High Court, the deeming
provision contained in sub-Section (4F) cannot be overstretched to supersede the
other provisions in the Act dealing specifically with the creation of the right of
Bhumidhar. In other words, the view of the High Court was that a person covered
by the beneficial provision contained in sub-Section (4F) will have to still go
through the process of allotment under Section 198 even though he is not liable
for eviction. As a corollary to this view, it was held that the occupant was not
entitled to seek correction of revenue records, even if his case falls under sub-
Section (4F) of Section 122B. We hold that the view of the High Court is clearly
unsustainable. It amounts to ignoring the effect of a deeming provision enacted
with a definite social purpose. When once the deeming provision unequivocally
provides for the admission of the person satisfying the requisite criteria laid
down in the provision as Bhumidhar with non-transferable rights under Section
195, full effect must be given to it. Section 195 lays down that the Land
Management Committee, with the previous approval of the Assistant Collector
in-charge of the Sub Division, shall have the right to admit any person as
Bhumidhar with non-transferable rights to any vacant land (other than the land
falling under Section 132) vested in the Gaon Sabha. Section 198 prescribes "the
order of preference in admitting persons to land under Sections 195 and 197".
The last part of sub-Section (4F) of Section 122B confers by a statutory fiction
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WRIC No. - 15932 of 2026
the status of Bhumidhar with non transferable rights on the eligible occupant of
the land as if he has been admitted as such under Section 195. In substance and
in effect, the deeming provision declares that the statutorily recognized
Bhumidhar should be as good as a person admitted to Bhumidhari rights under
Section 195 read with other provisions. In a way, sub-Section (4F) supplements
Section 195 by specifically granting the same benefit to a person coming within
the protective umbrella of that sub-Section. The need to approach the Gaon
Sabha under Section 19ss5 read with Section 198 is obviated by the deeming
provision contained in sub-Section (4F). We find no warrant to constrict the
scope of deeming provision.
10. That being the legal position, there is no bar against an application being
made by the eligible person coming within the four corners of sub-Section (4F)
to effect necessary changes in the revenue record. When once the claim of the
applicant is accepted, it is the bounden duty of the concerned revenue authorities
to make necessary entries in revenue records to give effect to the statutory
mandate. The obligation to do so arises by necessary implication by reason of
the statutory right vested in the person coming within the ambit of sub-Section
(4F). The lack of specific provision for making an application under the Act is
no ground to dismiss the application as not maintainable . The revenue records
should naturally fall in line with the rights statutorily recognized. The Sub-
Divisional Officer was therefore within his rights to allow the application and
direct the correction of the records. The Board of Revenue and the High Court
should not have set aside that order. The fact that the Land Management
Committee of Gaon Sabha had created lease hold rights in favour of the
respondents herein is of no consequence. Such lease, in the face of the statutory
right of the appellant, is nonest in the eye of law and is liable to be ignored.”
19. The Division Bench of this Court in case of Ram Narain and others
Vs. Sub Divisional Officer, Kairana and others; 2007 (103) RD 478
was considering the provisions of Section 123 of U.P.Z.A. & L. R. Act,
1950 and relied upon the judgment in case of Manorey (supra) and held
in paragraph Nos. 26, 27, 28 of the judgment as under:-
“26. In this connection it is necessary to point out that the deeming provision
under Section 123(2) of the Act has been enacted with non-obstante clause,
therefore, the same has to be given effect by the Court despite any other
provision contrary contained in the Act itself. In our opinion, in order to
effectuate the deeming provision under the statute the Court would assume all
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those facts on which the legal fiction created by the statute can operate, even if
those facts do not exist in reality and the right of the parties will have to be
determined on such imaginary things to achieve the purpose for which such legal
fiction has been created by the statute. Therefore, we have to examine that for
which purpose the aforesaid legal fiction has been created by the statute and
which facts we have to assume to put in the said legal fiction in operation/ In this
connection it is to be pointed out that on satisfaction of the certain conditions
laid down in Section 123(2) of the Act, the legal fiction has been created for the
purpose of settlement of house site with owner of house by the tenure-holder.
Those conditions are that the house must have been built by a person referred to
in Section 122-C(3) on the land of tenure-holder not being Government lessee
from before 30-6-1985, and such house exists on 30-6-1985. On satisfaction of
the aforesaid conditions we have to assume the necessary facts on which the
tenure-holder of the land could settle the house site with the owner of the house
even if in reality all necessary facts pertaining to such settlement were not
existing, therefore, in given facts and circumstances of the case, we do not find
any difficulty to hold that since the respondents No. 3 to 45 have built their
houses from before 1976-1977 and Revenue authorities have found their houses
existing on 30-6-1985, therefore, land covered by their house sites shall be
deemed to be settled with them by the tenure-holder of the land in question,
irrespective of the circumstances in which such eligible persons have built their
houses over the land in dispute. It is immaterial whether they have built their
houses with the consent or permission of the tenure-holder of the land in
question or otherwise by taking forceful possession of the land or their such
possession is unauthorised or as of tresspasser. In case the legislature would
have intended otherwise contrary to our views, the phrase “where any person
referred to in sub-section (3) of the Section 122-C has built a house on any land
held by a tenure-holder not being a Government lessee,” would not have been
used in the terms expressed therein, rather it would have been worded differently
so as to exclude unauthorised occupants who have built such houses but neither
such terms have been used expressly nor can it be inferred impliedly by
necessary implication. Besides that, it is significant to notice that the aforesaid
provisions have been enacted to ameliorate the conditions of members belonging
to the Schedule Castes, Schedule Tribes and other agricultural labourers to
ensure the socio-economic justice to them as a measure of agrarian reform,
therefore, the interpretation, which advance the object of the statute has to be
given by the Court. Thus, in our opinion, any other view contrary to the view
taken by us in this regard, would completely distort and defeat the very purpose
of deeming provisions which are coupled with non-obstante clause.
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27. The view taken by us hereinbefore also finds support from the view taken by
Hon'ble Supreme Court in case of Manohar v. Board of Revenue U.P (2003 All
LJ 1422) (supra) wherein the Hon'ble Supreme Court has accorded the benefit of
Section 122-B(4-F) of the Act to the person found eligible whose initial
possession was also not authorised. In para 8 of the said decision as reproduced
hereinbefore, the Hon'ble Supreme Court went on saying that sub-section (4-F)
carves out an exception in favour of an agricultural labourer belonging to a
scheduled caste or scheduled tribe having land below the ceiling of 3.125 acres,
irrespective of the circumstances in which such eligible person occupied the land
vested in Gaon Sabha (other than the land mentioned in Section 132) no action
to evict him shall be taken and moreover, he shall be deemed to have been
admitted Bhumidhar with non-transferable rights over the land, provided he
satisfies the conditions specified in sub-section. In view of aforesaid dictum of
the Hon'ble Supreme Court, there can be no scope for doubt to hold that even if
the initial entry of the respondents No. 3 to 45 into the land of the petitioners, is
found to be forceful or unauthorised and rank of tresspasser, even then, since
they have admittedly built their houses from before 30-6-1985 and such houses
were admittedly found existing on 30-6-1985 over the land of the petitioners who
were Bhumidhar with transferable rights on the said date, therefore, the house
site of respondents No. 3 to 45 shall be deemed to be settled with them by the
petitioners under Section 123(2) of the Act. And it was bounden duty of the
revenue authorities to give effect to aforesaid right of respondents No. 3 to 45
which has been conferred by the statute by making necessary changes, in the
revenue records, irrespective of any forum and procedure provided expressly
either under the Act or Rules framed thereunder for effectuating aforesaid
statutory right of socio-economically weaker sections of the society.
28. Before parting with the issue we would make it further clear that although
the provisions of sub-sections (1) and (2) of Section 123 have been enacted to
ameliorate the conditions of persons enumerated under sub-section (3) of Section
122-C of the Act who are members of weaker sections of society as a measure of
agrarian reform to effectuate socio-economic justice to them but in absence of
express provision under the Act and/or Rules framed thereunder creating forum
and providing procedure to effectuate the aforesaid mandate of the Legislature,
we are of the considered opinion that the said mandate of Legislature cannot be
effectuated in the words and spirit both. We are also conscious about the ambit of
scope of the power and jurisdiction of this Court under Article 226 of the
Constitution and this Court cannot ask the Legislature or rule making body,
directly or indirectly to legislate in a particular manner by issuing a writ of
mandamus. In other words, no such writ can be issued which necessarily
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involves the legislation. But here we are confronted with a slightly different
situation, where in fact, the Legislature has already recognised the rights of
eligible persons by enacting aforesaid provisions of law, consequently, as held by
Hon'ble Supreme Court in Manohar's case (2003 All LJ 1422) (supra),
corresponding duties have been cast upon the revenue authorities impliedly by
necessary implication to effectuate the aforesaid rights of individuals. Therefore,
in absence of express provisions for providing forum and procedure to effectuate
the aforesaid rights of individuals, we do not find any difficulty to issue any writ
or direction of general nature in the shape of mandamus to effectuate the
provisions of Section 123 of the Act. We are also alive of the situation that
Assistant Collector, in charge of the Sub-Division is competent officer to perform
the functions and discharge the duties assigned under Section 122-C of the Act,
therefore, it would be expedient to direct that so long as the express provisions
under the Act and Rules are not enacted by competent Legislature, the Officer
not below the rank of Assistant Collector in charge of the Sub-Division
concerned shall under take to effectuate the provisions of Section 123 of the Act
in a summary manner after hearing the necessary parties and persons interested
in such summary proceedings.”
20. In judgment in case of Satya Veer (supra), it appears that the
judgment of the Hon’ble Supreme Court in case of Manorey (supra) and
of the Division Bench in case of Ram Narain (supra) were not placed
before this Court and for the reason they were not considered by this
Court. I am unable to persuade myself to agree with the dictum of the
judgment in case of Satya Veer (supra).
21. Though, there is a difference in Section 123 of U.P.Z.A. & L. R. Act,
1950 and Section 67-A of U.P. Revenue Code, 2006. Section 123 starts
with a non-obstante clause, but the same is not the position in case of
Section 67-A. Both the sections aim to achieve same goal and are
benevolent in nature and seek to introduce a scheme of social justice for
hundreds of those rural indigents who, due to their meager means, are
unable to have shed over their heads. There is no substantial difference
between both the provisions i.e. Section 67-A of U.P. Revenue Code,
2006 and Section 123 of U.P.Z.A.& L.R. Act, 1950.
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22. Further, this Court in case of Suresh Chandra (supra) in paragraph
No. 8 of the judgment, has held as under:-
“8. There is nothing in section 67-A of the Code which contemplates that such a
right can only be claimed if the person concerned files a suit. The orders reflect
that the petitioner was claiming protection of Section 67-A of the Code on the
basis of certain materials. To expect such a person to get his rights adjudicated
by way of a separate suit so as to claim the benefit of section 67-A would only
promote multiplicity of proceedings which should be avoided. Learned Standing
Counsel could not bring to notice of the Court any legal impediment in this
regard.”
23. In case of Asgar Vs. State of U.P (supra) relied upon by the
petitioner, this court has held in paragraph Nos. 3, 4, 5, 6, 7, 8, 9 as
under:-
“3. Adverting to the eligibility of the petitioner for protection under
Section 67 (a) of the Code and the rights purportedly accruing
to him thereunder, the appellate court held that it was open to
the petitioner to take out proceedings under Section 67 (a) of
the Code for grant of appropriate relief as claimed by him. After noticing the
aforesaid facts, the appellate court agreed with the judgment of the trial court
and dismissed the appeal. The trial court did not return any finding on this issue.
4. 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:…….
5. Section 67(a) of the Code confers rights on certain people who
have encroached upon public land. The perequisite conditions
for invoking the protection of Section 67 (a) of the Code are
these. The person against whom proceedings are taken out has
built his house on any land referred to in Section 63 of the Code, the person who
seeks protection of Section 67 (a) of the
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Code should be in the category of persons referred to in Section
63 of the Code. The land should not be reserved for any public
purpose. The date of the construction of the house should be
prior to 29 November, 2012. The house of such persons should
be existing in the disputed parcels of land on or before 29
November 2012.
6. In many instances, as indeed in the present case, the noticee
under Section 67 of the Code may invoke the protection of
Section 67 (a) of the Code to resist the proceedings under
Section 67 of the Code.
7. The authority/ court having jurisdiction to decide the
proceedings taken out under Section 67 of the Code or Section
67(a) of the Code is the same. When the defence of Section 67
(a) of the Code is taken in proceedings of Section 67 of the
Code, the same issues will be directly and substantially in issue
in both the proceedings. Usually in such matters pleadings,
defence, pleadings and evidence of the parties are same in both
the proceedings. In case proceedings under Section 67 and
67(a) of the Code are conducted separately and in isolation to
one another, it would lead to multiplicity of litigation and
inconsistent judgments. There will also be an avoidable delay
in decision of the controversy and may even result in
miscarriage of justice.
8. In fact proceedings under Section 67 (a) of the Code should be
registered immediately after a defence in that regard is made in
proceedings under Section 67 of the Code.
9. The proceedings under Sections 67 and 67(a) of the Code,
should be consolidated and heard together by the same court.
Such procedure would faithfully implement the legislative intent and also serve
the interest of justice.”
24. The same view was taken by this Court in case of Baburam (supra)
and Govind Singh (supra). I do not find any reason to take different view
in the matter.
25. So far as contention of learned Standing Counsel that benefit of
Section 67-A could not be granted to an unauthorized occupant unless
and until he is in position to establish categorically that a person higher
in preference as given in Section 64 is not available, is concerned, the
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WRIC No. - 15932 of 2026
same is raised relying upon judgment of this Court in case of Sri Raju
(supra) and Baijnath (supra), wherein this Court has held, “ Merely
because a person lower in order of preference has encroached upon
Gaon Sabha land, he cannot and should not be granted the benefit of
Section 67A unless and until he is in a position to establish categorically
that a person higher in preference is not available in the village. Any
other interpretation of Section 67A would result in great injustice as an
unauthorized occupant would be liable to be granted its benefit only on
account of him or her having illegally encroached upon Gaon Sabha
property, despite other needier and persons higher in preference being
available in the village.”
26. I am unable to persuade myself to agree with the view taken by this
Court in case of Sri Raju (supra) and Baijnath (supra) for following
reasons:
(a) The grant of benefit of Section 67-A of U.P. Revenue Code, 2006
or (Section 123 of U.P.Z.A.&L.R. Act, 1950) is not an allotment
under the provisions of statute but the benefit to protect the
possession has been granted by legal fiction. The only condition in
the aforesaid Sections is that the person must be belonging to one of
the categories mentioned in Section 64 in case of Section 67-A or
sub-clause (3) of Section 122-C in case of person covered under
Section 123 of U.P.Z.A.&L.R., Act 1950. The section itself does not
say that a person must be in the highest category of persons
mentioned in sections referred above or that no other person higher in
category must not be there in order to avail benefit of Section 67-A of
U.P. Revenue Code, 2006 or Section 123 of U.P.Z.A.&L.R., Act
1950. When no such condition has been given in the statute itself, the
said condition cannot be read in while interpreting the provisions.
The statutory provisions should be interpreted literally as it is,
without adding or removing anything in the language of section, if
the provision is unambiguous. Interpretation is only permissible
where there is ambiguity in the statute itself, otherwise words mentioned in
the statute have to be construed literally. View which I am taking is
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supported by law as laid down by Hon’ble Supreme Court in
Manorey (supra) “ sub-section 4 carves out an exception in favour of an
agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe having
land below the ceiling of 3.125 acres. Irrespective of the circumstances in which
such eligible person occupied the land vested in Gaon Sabha, no action to evict
him shall be taken.” (paragraph No. 8). The Division Bench of this Court
in case of Ram Narain (supra) has held as under:-
“It is immaterial whether they have built their houses with the consent or
permission of the tenure-holder of the land in question or otherwise by taking
forceful possession of the land or their such possession is unauthorised or as of
tresspasser. In case the legislature would have intended otherwise contrary to
our views, the phrase “where any person referred to in sub-section (3) of the
Section 122-C has built a house on any land held by a tenure-holder not being a
Government lessee,” would not have been used in the terms expressed therein,
rather it would have been worded differently so as to exclude unauthorised
occupants who have built such houses but neither such terms have been used
expressly nor can it be inferred impliedly by necessary implication.” (paragraph
No. 26).
This court in case of Achhaibar Tiwari (supra) has held that benefit
of sub-section 2, Section 123 of U.P.Z.A. &L.R. Act, 1950 must be
any one of the categories mentioned in sub-section 3 of Section 122-
C. Paragraph No.8 of the aforesaid judgment is quoted as under:-
“8. From a reading of the aforesaid sections, it is evident that the person
claiming the benefit of sub-section (2) of section 123, must be anyone of the
categories mentioned in sub-section (3) of section 122C. It is also evident
that there should exist a house held by a tenure-holder, unless the contrary
is proved, be presumed to have been built by the occupant thereof, and
where the occupants are members of one family, by the head of that family.”
In case of Ram Preet Vs. Additional Commissioner, Gorakhpur
Division, Gorakhpur and others; 2011 (7) ADJ 791, the order
under challenge before this court was an order passed by Sub-
Divisional Officer settling the land under Section 123(1) U.P.Z.A.
&L.R. Act, 1950 in favour of the petitioner and the other order under
challenge was the order passed by the District Magistrate in exercise
of powers under Rule 115 (P). This Court has held “the order passed
by District Magistrate under Rule 115 (P ) is not correct as firstly,
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Gaon Sabha had not challenged the order, it was only Pradhan who
had challenged and secondly, it was not allotment hence the
proceedings under Rule 115 (P ) were not maintainable.”
Settlement as contemplated under Section 67-A of U.P. Revenue
Code, 2006 is not an allotment of housing site but it can be
considered as deemed allotment in view of the legal fiction created by
Section 67-A and therefore, there is no question of examining the fact
that whether there is no other person in a higher category as
mentioned in Section 64 exists other than the petitioner while
granting benefit under Section 67-A of the Code.
The aforementioned judgments were not placed before this Court and
considered by this Court in case of Sri Raju (supra). The Court has
proceeded on the assumption that settlement of land under Section
67-A of U.P. Revenue Code, 2006 is the same as allotment of land
under Section 64 of the Code.
Though the observations were made by the Hon’ble Supreme Court
with regard to sub-clause (2) of Section 123 but the principle laid
down will also apply to Section 67-A of U.P. Revenue Code, 2006.
(b) Sub-section (2) of Section 67-A provides if any person referred
to in sub-section (1) of Section 64 has built a house on any land
referred to in Section 63 of U.P. Revenue Code, 2006, not being land
reserved for any public purpose, and such house exists on November
29, 2012, the site of such house shall be held by the owner of the
house on such terms and conditions as may be prescribed. Rule 68 of
U.P. Revenue Code Rules, 2016 provides that such house shall be
held by the owner of the house on terms and conditions prescribed in
Rule 64.
(c) Section 67-A confers by a statutory fiction the status of allottee
to the eligible occupant of the land as if he has been admitted as such
under Section 64 of U.P. Revenue Code, 2006. In substance and in
effect, the deeming provision declares that the statutorily recognized
person should be as good as a person allotted land under Section 64.
In a way, Section 67-A supplements to Section 64 by specifically
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granting the same benefit to a person coming within the protective
umbrella of that sub-section.
27. In paragraph No. 16 of the judgment in case of Ram Narain (supra)
the Division Bench has held as under:-
“16. Thus, from a plain reading of sub-section (1) of Section 123 of the Act, it is
clear that where any person referred in Section 122-C(3) has built a house on
any land which is not subject-matter of Section 9 of the Act or on any land
referred to in Section 122-C(2) not being the land reserved for any public
purpose and such house exists on 30-6-1985, the site of the house shall be held
by the owner of the house on such terms and conditions as prescribed by the
Rules. The aforesaid provisions does not require any formal allotment order by
Assistant Collector in charge of the sub-division concerned, rather statute itself
recognises such settlement on satisfaction of the conditions stipulated under the
aforesaid provisions of the Act.”
28. In view of the discussions made above, this Court is of the view that:-
(a) Firstly, an application filed by a person covered under Section 67-
A of U.P. Revenue Code, 2006 cannot be rejected on the ground that
such an application is not maintainable for want of provision. The same
has to be considered and decided on merits by the Assistant Collector.
(b) Secondly, in case, in proceedings initiated under Section 67 of the
U.P. Revenue Code, 2006, the noticee invokes protection of Section 67-
A of the Code to resist the proceedings under Section 67, the Assistant
Collector should register immediately the proceedings under Section 67-
A of the Code and shall also decide the same in accordance with law.
(c) Thirdly, the proceedings under Section 67 and Section 67-A are to
be consolidated and heard together by Assistant Collector after
providing opportunity of hearing as well as opportunity of leading
evidence to all the parties and the proceedings should be brought to the
logical conclusion strictly in accordance with law.
(d) Lastly, for considering the eligibility of a person under Section 67-
A, no objection can be taken by the Assistant Collector on the ground
that other persons higher in category as provided under Section 64 of the
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U.P. Revenue Code, 2006, than the petitioner, exists in the village, and if
the petitioner comes within any of the categories mentioned under
Section 64 of the Code and other conditions of Section 67- A are fulfilled
by the petitioner, the benefit is to be given to such person.
29. In the facts of the present case, the proceedings under Section 67 of
U.P. Revenue Code, 2006 has already been initiated against the
petitioners to which petitioners have filed objections. The petitioners
have also initiated proceedings under Section 67-A before the S.D.M.
The proceedings which were initiated under Section 67-A before the
S.D.M. be immediately transferred to the court of Assistant Collector
seized with proceedings under Section 67 or the petitioners may file
fresh proceedings under Section 67-A before the Assistant Collector
itself. In either of the case, the Assistant Collector seized with the matter
under Section 67 should consolidate both the proceedings and decide the
same in accordance with law as laid down by this court in case of Asgar
Vs. State of U.P. (supra). Till disposal of proceedings as directed above,
the parties are directed to maintain status quo.
30. Accordingly, the writ petition is disposed of. No orders as to cost.
(Manish Kumar Nigam,J.)
July 1, 2026
Nitika Sri.
Digitally signed by :-
NITIKA SRIVASTAVA
High Court of Judicature at Allahabad