Prayagraj (UP), July 16 The Allahabad High Court has held that appropriate remedy in case of encroachment of the gram sabha land, ponds, etc., would be to proceed against encroacher under Uttar Pradesh Revenue Code and criminal proceedings only after rights of parties are determined by the revenue court under the Code.Allowing a petition filed by one Prabhakant and others, Justice Rahul Chaturvedi observed, "As per the UP Revenue Code, it is the assistant collector of the area who is the authority concerned to act a pivotal role in demarcation and declaring that the land in dispute has been encroached. The investigating officer (IO) of criminal cases is not even remotely connected to conduct this exercise."
Giving this verdict, the court quashed the summoning orders passed by concerned courts below under Prevention of Damage to Public Property Act, 1984.
It was alleged that the applicants along with other co-villagers had allegedly encroached upon a land of pond situated over gram sabha land and other land of local authority.
An FIR was lodged against them and thereafter the IO visited the spot and prepared site plan and ultimately submitted the charge sheet against them.
Later, the court below took cognizance of the charge sheet and issued summons to them. The counsel for the applicants took the plea that the IO of the criminal case had got no mechanism to demarcate the land.
The counsel further said that without following any proper mechanism, the IO came to the conclusion that accused persons had transgressed their limits and encroached upon the land. Further, it was not expected from the IO of a criminal case that they would make a physical measurement of the land and get it demarcated, the counsel said.
Hence, the undercurrent of the entire controversy was purely a revenue dispute and no criminality could be attached to it, the counsel stated.
Accepting the plea, the court in its judgment, said the allegations in the FIR against the applicants are that they are in wrongful occupation of the land in dispute belonging to the local authority.
However, this act cannot come within the realm of mischief or wrongful occupation till the actual physical measurement of the concerned land is conducted by the authority concerned.
"The site plan prepared by the IO is only a narration of the fact that the applicants are conducting their farming and cultivating over the land in dispute, but the IO cannot decide it unless and until actual demarcation is being done by the competent revenue authority after holding the exercise of measurement and establishing its identity,” the bench said.
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