Order XXI CPC Not Applicable To Execution Of Eviction Orders Passed Under Section 67 UP Revenue Code: Allahabad High Court

The Allahabad High Court has held that an order of eviction or of compensation passed under Section 67(3) of the U.P. Revenue Code, 2006 cannot be executed through the long drawn procedure prescribed under Order XXI of the Code of Civil Procedure, 1908. It held that the Code of 2006 and the U.P. Revenue Code Rules, 2016 themselves supply the machinery for enforcing such orders.

The bench of Justice Rajan Roy and Justice Manjive Shukla held,

“The proceedings under Section 67 of the Code, 2006 not being akin to regular suit proceedings but being summary in nature, it is highly incongruous that the long drawn procedure prescribed in Order XXI of the Civil Procedure Code 1908 should be followed for its execution of orders passed thereunder.”

Section 67 of the Code allows the Assistant Collector, after notice, to evict a person in wrongful occupation of Gram Panchayat property and to order recovery of compensation for damage, misappropriation or wrongful occupation. Sub-section (3) permits eviction by use of such force as may be necessary, and permits the compensation to be recovered as arrears of land revenue.

Paragraph 460 of the U.P. Revenue Court Manual requires the Assistant Collector or Tehsildar who passes such an order to get it executed by following, mutatis mutandis, the procedure laid down in Paragraphs 137 and 138 of the Manual. Paragraph 137 requires the reader of the court to examine whether an application for execution satisfies Rules 11 to 14 of Order XXI CPC.

The petitioner had earlier filed PIL seeking construction of a khadanja on a chak marg in village Dehli Bazar, Tahsil Baldirai, district Sultanpur. That petition was disposed of with a direction to the authority concerned to conclude the pending proceeding and to the appellate authority to decide the appeals, each within 90 days.

The Additional Chief Standing Counsel informed the Court that all the cases had since been decided and proceedings for removal of the encroachment were underway as per the procedure in Paragraph 460 of the Manual.

The Court obsereved that in the garb of the relief claimed, the petitioner was in substance seeking execution of the orders passed under Section 67, since the chak marg could not be constructed or repaired until the encroachment was removed. On being confronted, counsel for the petitioner submitted that the Paragraph 460 route would be a long drawn process. That submission led the bench to examine how orders under Section 67 are to be enforced.

The Court held that proceedings under Section 67 are summary in nature. It noted that Section 225-A of the Code requires questions arising in summary proceedings to be decided on affidavits, and Rule 186 of the Rules of 2016 excludes the CPC from such proceedings while preserving the principles enshrined in it. Section 214, which applies the CPC to proceedings under the Code, does so only unless the Code otherwise expressly provides, the Court held.

The original proceedings being summary, the Court held, their execution could not be long drawn on the lines envisaged under Order XXI CPC. It held that the mention of Order XXI in Paragraph 137 served a narrow purpose only.

“Thus, these Rules of Order XXI CPC are applicable by virtue of Para 137 of Revenue Court Manual only for processing the application for execution, nothing more. At best, we can say that on an application being filed for execution / enforcement of an order under section 67(3) of U.P. Revenue Code 2006, it shall merely be processed in terms of para 137 and nothing more.”

The Court held that Section 67(3) itself supplies the mode of enforcement, namely use of such force as may be necessary for eviction and recovery of compensation as arrears of land revenue. Chapter XII of the Code, which prescribes the machinery for recovery of arrears of land revenue, applies to compensation ordered under Section 67(3) by virtue of Section 205, it held.

Reading Section 67(3) with Rule 67 of the Rules of 2016, the Court held that a wrongful occupant who does not vacate may be evicted by use of force, but that where a crop stands on the land the procedure in sub-Rule (5) of Rule 67 must be followed.

The Court held that Paragraph 138 of the Manual, which deals with certification of payment made out of court, had no application at all, is inconsistent with the recovery procedure already prescribed under the Code and the Rules. It observed that the Revenue Court Manual operates only so far as it is not inconsistent with the Code, under Section 234(3), and that by the same logic rules framed under the Code would prevail over the Manual.

“In fact, the State Government would be better advised to revisit para 460 of the UP Revenue Court Manual to make it consistent with the provisions of the UP Revenue Code, 2006 and Rules 2016 as regards enforcement of orders passed under Section 67(3) as discussed hereinabove.”

Holding that the confusion in the mind of the petitioner's counsel had arisen only from the language of Paragraph 460 read with Paragraphs 137 and 138, the Court disposed of the petition with liberty to pursue the remedies prescribed for execution of orders under Section 67.

Case Title: Pooja Devi v. State of U.P. Through Secy. Revenue Lko And 10 Others

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