Introduction:
The case of Shahban and Another v. State of U.P. through Additional Chief Secretary (Revenue), Lucknow and Others (2026 LiveLaw (AB) 152) before the Allahabad High Court presents a nuanced judicial approach to disputes involving alleged encroachment on public land, specifically Gram Sabha property. Decided by Justice Alok Mathur, the case addressed two critical legal questions: whether eviction from public land was justified when occupants lacked title, and whether penalty could be imposed in the absence of evidence linking such occupants to the act of encroachment or construction.
The controversy revolved around a mosque constructed approximately six decades ago on land recorded as “Khalihan” (threshing floor) in the revenue records—land that legally belongs to the Gram Sabha. Proceedings were initiated under the U.P. Revenue Code, 2006, particularly invoking Sections 66 and 67, which deal with unauthorized occupation and eviction from public land. The petitioners were issued notices to explain why they should not be evicted and penalized for illegal encroachment.
The petitioners, while responding to the notice, contended that they had neither constructed the mosque nor encroached upon the land. According to them, the mosque had existed for decades and was merely being used by members of the Muslim community for religious purposes. Despite this, the Tehsildar ordered eviction and imposed a penalty, which was later upheld by the Additional District Magistrate (Judicial), Lucknow.
Aggrieved by these orders, the petitioners approached the High Court, challenging both the eviction and the penalty. The High Court was thus required to examine the legality of the eviction process, the applicability of procedural safeguards, and the justification for imposing penalties in such circumstances.
Arguments of the Petitioners:
The petitioners mounted a multi-layered challenge to the impugned orders, primarily questioning the imposition of penalty and the alleged procedural irregularities.
At the outset, the petitioners argued that they had no role in the construction of the mosque. They submitted that the structure had been in existence for nearly 60 years and that they were merely users of the premises for religious purposes. They emphasized that no evidence had been produced by the authorities to establish that they were responsible for either the construction or the encroachment of the Gram Sabha land.
On this basis, the petitioners contended that the imposition of penalty was arbitrary and lacked any legal foundation. They argued that penal liability cannot be imposed without establishing a clear nexus between the alleged wrongdoer and the act in question. In the absence of such evidence, the penalty, they submitted, was unsustainable in law.
The petitioners also challenged the procedural fairness of the proceedings. They relied on the judgment of a coordinate bench of the Allahabad High Court in Rishipal Singh v. State of U.P. & Others, wherein certain guidelines had been laid down regarding the procedure to be followed under Section 67 of the U.P. Revenue Code. One of the key safeguards emphasized in that case was the right of the affected party to cross-examine the person who had prepared the report alleging encroachment.
The petitioners argued that no such opportunity for cross-examination was provided to them, thereby violating principles of natural justice. They contended that the failure to follow these guidelines rendered the entire proceeding vitiated.
Additionally, the petitioners attempted to highlight the long-standing nature of the mosque, suggesting that its existence over decades should be taken into account while considering the question of eviction. They implied that such structures, deeply embedded in the social and religious fabric of the community, should not be treated on par with recent encroachments.
In essence, the petitioners sought to distinguish between mere occupation or use of a property and active participation in its illegal construction, arguing that the law must recognize this distinction while determining liability.
Arguments of the Respondents:
The State authorities, on the other hand, defended the impugned orders and maintained that the eviction and penalty were justified under the law.
The respondents argued that the land in question was clearly recorded as “Khalihan” in the revenue records, which meant that it was Gram Sabha land reserved for agricultural purposes. Any construction on such land, without lawful authority, constituted illegal encroachment.
They emphasized that the petitioners had failed to produce any document or evidence to establish their right, title, or interest in the property. In the absence of such proof, the authorities were well within their powers under Sections 66 and 67 of the U.P. Revenue Code to order eviction.
With regard to the procedure followed, the respondents asserted that the Tehsildar had complied with all statutory requirements. Notices were issued, replies were considered, and orders were passed in accordance with the prescribed rules. Therefore, it could not be said that the proceedings suffered from any procedural illegality.
Addressing the reliance placed by the petitioners on the Rishipal Singh guidelines, the respondents argued that these were merely judicial suggestions and had not been formally incorporated into the statutory framework. As such, they were not binding on the authorities unless adopted by the State through appropriate amendments to the rules.
On the issue of penalty, the respondents maintained that since the petitioners were found in occupation of the encroached land, they could be held liable. They argued that allowing occupants to escape liability merely by denying involvement in construction would defeat the purpose of the law and encourage unauthorized occupation of public land.
Court’s Judgment:
The Allahabad High Court delivered a balanced judgment, carefully distinguishing between the legality of eviction and the justification for imposing penalty.
On the question of eviction, the Court upheld the orders passed by the Tehsildar and affirmed by the Additional District Magistrate. The Court noted that the land in question was recorded as Gram Sabha land under the category “Khalihan,” and the petitioners had failed to establish any legal right, title, or interest in the property.
The Court observed that the procedure prescribed under Sections 66 and 67 of the U.P. Revenue Code, along with Rules 66 and 67 of the Revenue Code Rules, had been duly followed. Notices were issued, replies were considered, and the petitioners were given an opportunity to present their case. Therefore, the eviction order could not be said to be arbitrary or in violation of statutory provisions.
However, the Court took a different view with regard to the imposition of penalty. It held that penal liability cannot be imposed in the absence of evidence linking the petitioners to the act of encroachment or construction. The Court noted that the mosque had been in existence for about 60 years and that there was no material on record to show that the petitioners had constructed it or were responsible for its establishment.
In this context, the Court emphasized the principle that penalty must be based on clear evidence of wrongdoing. Mere occupation or use of a structure does not automatically make a person liable for its illegal construction, especially when the structure predates their association with it.
Accordingly, the Court set aside the penalty imposed on the petitioners, holding it to be unsustainable.
On the issue of procedural safeguards and the applicability of the Rishipal Singh guidelines, the Court clarified that these guidelines, though well-intentioned, do not have the force of law unless formally adopted by the State. The Court observed that the existing statutory framework already provides a detailed procedure, and the guidelines cannot override or supplement it unless incorporated into the rules.
The Court further noted that the coordinate bench in Rishipal Singh had not found any deficiency in the existing procedure but had merely suggested additional safeguards. Therefore, in the absence of formal adoption, the authorities were not bound to follow these guidelines.
In conclusion, the Court dismissed the petition insofar as it challenged the eviction, but allowed it in part by setting aside the penalty. The judgment thus strikes a careful balance between enforcing the law against encroachment and ensuring that individuals are not penalized without proof of culpability.