Uttarakhand High Court
Unknown vs Prescribed Authority (Eviction) / ... on 2 August, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ-Petition (M/S) No.589 of 2011
State of Uttarakhand through Collector Champawat
... Petitioner
Vs.
Prescribed Authority (Eviction) / UpZila Adhikari and
Another
... Respondents
Advocate: Mr. R.C. Arya, learned Standing Counsel for the State of
Uttarakhand/ petitioner.
Hon'ble Sharad Kumar Sharma, J.
The writ petition has been preferred by the State as against the impugned judgment rendered by the Court of District Judge, Champawat, on 21.09.2010 in Appeal No.12 of 2009, whereby the appeal preferred by the alleged unauthorized occupant under Section 4/5 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 has been allowed and, as a consequence thereto, the judgment of the Prescribed Authority dated 30.04.2009 has been set aside, thereby resulting into turning down the proceedings under Section 4/5 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972.
22. Before dealing with the basic facts, a backdrop of the basic issue, as to whether at all the land in question happens to be a public land, over which any right could at all be vested to respondent no.2-Mohini Devi is a fact, which is required to be considered by this Court.
3. For the purpose of initiation of the proceeding under Section 4(1) of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, the basic premise is that the property has had to be a "public premises", as it has been defined under the Act, itself i.e. in its Sub-section
(e) of Section 2, it would be inclusive of any premise, which belongs to or taken on lease or requisitioned by or on behalf of the State Government, and includes any classes of premises belonging to or taken on lease as it has been provided under the sub-clauses to the definition of public premises provide sub-section (e) of Section 2 of the Act. The definition of Public Premises as defined under Section 2(e) of the Act is extracted hereunder:-
"e) "Public premises" means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf of-
(i) any company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty-one per cent of the paid up share capital is held by the State Government;or
(ii) any local authority; or
(iii) any Corporation (not being a company as defined in Section 3 of the Companies Act, 3 1956 or a local authority) owned or controlled by the State Government; or
(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government, or both;
and also includes--
(i) Nazul land or any other premises entrusted to the management of a local authority (including any building built with Government funds on land belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenures);
(ii) any premises acquired under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under 41 of that Act providing for re-entry by the State Government in certain conditions;
[but does not include, the Public Premises which are under the Administrative control of the Estate Department and which are occupied by,--
(a) a Minister of the Government of Uttar Pradesh or a person given rank of a minister;
(b) a Member of Parliament, a Member of Legislative Assembly or the Legislative Council of Uttar Pradesh;
(c) a non-Government organization, whether incorporated or registered or not:
(d) a political party not recognized by the Election Commission of India;
(e) a society registered under the Societies Registration Act, 1860, a trust registered under the Indian Trusts Act, 1888 or any Trade Union registered under the Trade Unions Act or any employees' association or any body of persons, whether incorporated or not.
(f) any outfit or frontal or other organization of a Political Party,whether recognized or not;
(g) any person who is not government servant, or who is allotted the Public Premises by virtue of his being office bearer or representative of a Society, Trust or any body of persons, whether incorporated or not.]"
4. The genesis of the proceedings stood instituted, as a consequence of issuance of a 4 challani report, under Sections 4, 5 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter to be referred as an "Act of 1972"), wherein the Patwari and the Naib-Tehsildar, on the basis of the prior inspection being conducted, had issued notices against respondent no.2 observing therein that she is in an unauthorized occupation of a land lying in village Moolakot, Patti Moolakot, Tehsil Pati, District Champawat (hereinafter to be called as "the disputed property").
5. In accordance with the description of the property given, it was observed that the land in dispute falls to be lying in Khata No.368 having its Khet No.6743 and 6744 having an area of 31 Nali and 4 Muthi of land.
6. If the said notice, which were issued under Section 4(1) of the Act of 1972, to respondent no.2, is taken into consideration, though it refers to a land lying in Khata Khatauni No.368 but, ultimately, based upon the Patwari report, as it was submitted before the Prescribed Authority, the land in question was, ultimately, found to be a Non-ZA land, as it would be apparent from the Khatauni lying in Js.kh 9¼3½¼x½ i.e. "krishi yogya banjar land".
7. To deal with the issue as to whether at all the land will fall to be as public premises under the 5 Act of 1972, is an aspect, which is first required to be ventured into by this Court. Admittedly, according to the Khatauni entry, it refers the land in dispute as to be a Non-ZA land. Meaning thereby that, it would fall to be a land over which the provisions of the U.P. ZA&LR Act would not apply and, accordingly, the same would be included under Chapter-VIII of the Land Records Manual which would be in relation to the land, over which the provisions of the U.P. ZA&LR Act would not be applicable and, in accordance with the arrangement of holding pertaining to the land lying in Js.kh 9¼3½, in the instant case, it will fall under Part-A i.e., included in paragraph no.124-A of arrangement of holding in Awadh, which clarifies the land to be as under:-
"[(9) Barren -
(i) covered with water:
(ii) sites, roads, railways, buildings and lands put to non-agricultural uses;
(iii) grave-yards and cremation grounds other than those included in land held by tenants, grove-holders, or rent-free grantees or in grove held by a Zamindar or in the abadi area"
8. In accordance with paragraph no.124-A, as extracted above the land lying under Js.kh 9¼3½, it provides to be a barren land and Clause 3 reads as
-(iii) grave-yards and cremation grounds other than those included in the land held by tenants, grove- holders, or rent-free grantees or in grove held by a 6 Zamindar or in the abadi area. Meaning thereby, according to the description of the land as given in paragraph no.124-A, it was a barren agricultural land, as it was covered by paragraph no.124-A of the Land Records Manual, it will be a public property.
9. Upon the notice being issued to respondent no.2 in relation to Khasra No.3743 and 3744, the proceedings were drawn thereby registering Case No.9 of 2006-07 dated 26.10.2006, "State Vs. Mohini Devi". The said proceeding was contested, as Mohini Devi is said to have filed her objections on 30.11.2006 wherein she has made a simplicitor averment that the reports which were submitted by the Patwari is because of the malice and village political dispute, coupled with the fact, that she said that she is not in occupation of any public land, which could have at all necessitated the initiation of proceedings under Section 4 of the Act of 1972.
10. She further submitted that the witnesses, who have recorded their statements in the report, which was submitted by the Patwari, for example, Laxman Singh, since there already happens to be a dispute pending against him before the competent Civil Court and in which a spot inspection was claimed to be done by respondent no.2, the malicious report which has been submitted and, on 7 the basis of which, no proceedings under Section 4 could be drawn against the present applicant.
11. The learned Prescribed Authority recorded the statement of the witnesses as PW1 Chuda Ram, who happened to be the Patwari at the relevant time, who submitted the report about the unauthorized occupancy of the Non-ZA land by respondent no.2, who is said to have occupied an overall 34 Nali 4 Muthi of land, which as per the revenue records was the land reserved for public purpose and, hence, he supported his report submitted by him, which is a basis of initiation of the proceedings under Section 4 of the Act of 1972.
12. Laxman Singh, who was the then Pradhan of the village, too, had appeared in the witness box and had recorded his statement as PW2 wherein he had made a statement that when the Patwari had made the spot inspection, it was made in his presence. The land was identified by him along with the Patwari and the report thus submitted by him was in his presence, which is on record as Ex.Ka-5 and he admits the fact that he has endorsed the same only after identifying the land over which the proceedings under Section 4 of the Act of 1972 was drawn.
13. Similarly, the other co-resident, PW3 Yasoda Devi, has also fortified the report of the Patwari contending therein that she was present on 8 the spot and the report thus submitted which is Ex.Ka-6, was endorsed by her and the land was identified; over which respondent no.2 was found to be in an unauthorized occupancy of the land. Based upon the same and the documentary material before it, the learned Prescribed Authority by the judgment dated 30.04.2009, while holding that the land in question was a Non-ZA land and being a land lying in Js.kh 9¼3½ would be a land vested for the "public purpose", has consequently observed that the applicant was in an unauthorized occupant of the land and hence has directed the eviction of respondent no.2 from Khasra No.6743 and 6744 as detail above.
14. Consequently, respondent no.2 being aggrieved against the judgment of eviction dated 30.04.2009, has preferred an appeal under Section 9 of the Act of 1972 and that too, at the much belated stage, when Form "Kha" was already issued for issuing a direction for eviction in compliance with the order passed of the Prescribed Authority on 30.04.2009.
15. Even if the grounds of appeal are taken into consideration as it was preferred by respondent no.2, the ground taken therein was that the notice issued under Section 4/5 of the Act of 1972, was not in accordance with the provisions of the Act of 1972 and further it was submitted that, the notice happens to be in contravention to law; but this 9 ground taken is absolutely vague and non-assertive and not even attempted to be substantiated as to in what manner the notice itself was vitiated and contrary to the provisions of the Act of 1972.
16. She further submitted though without any document of title being on record that she is neither in occupancy of State land nor she has raised any construction nor she has derived any advantage, from the disputed land except for the fact, that she had often now and then visited the land lying in Js.kh 9¼3½ for which the proceedings under Section 4 of the Act of 1972 was drawn, it is contended by the respondent that it was exclusively for the purpose of cutting grass for feeding the cattle.
17. The appeal was heard on merits and the Appellate Court, apart from vaguely discussing the report which was submitted by the Patwari, which stands fortified by the Pradhan, it was the Patwari himself who endorsed the same in addition to an independent witnesses.
18. The Appellate Court, in its judgment of 21.09.2010 being a judgment of reversal, without discussing any material on record in order to fortify the fact about the alleged unauthorized occupancy of respondent no.2, and even without reversing the findings, had drawn a very vague and an illegal view that since the land being an unlevelled land, it is not possible for the applicant to occupy the land, 10 except for the fact, that she used to grow grass for the purpose of using the same as a fodder for the cattle.
19. The Appellate Court has also considered that so far as the allegations raised by the appellant are concerned, pertaining to their dispute with the Pradhan-Laxman Singh and Yosoda Devi, and the Sarpanch and the joint complaint, as allegedly submitted by them, that was rather crafted politically motivated, by the said observation because for the purpose of rendering a judgment of reversal it has had to be, on the basis of the logical application of mind, to deal with that under what circumstances and reasons the alleged theory of animosity due to village politics could have, at all, attributed to issuance of notice under Section 4 of the Act of 1972, the same remained unsubstantiated by the Appellate Court.
20. Merely, on the ground that respondent no.2 has instituted a proceedings against the Sarpanch- Yasoda Devi, for her alleged act of unauthorized cutting of trees in itself cannot be taken as to be an isolated basis for appreciating the argument which was extended by respondent no.2 before the Appellate Authority as against the judgment of the Prescribed Authority, for the purpose of holding that the Prescribed Authority has erred at law by rendering the judgment by not appreciating the facts and evidence, but rather 11 judgment of the Prescribed Authority in itself speaks to the contrary because the Appellate Court has only considered the statements recorded, which remained uncontroverted and rather the Appellate Court has created an artificial ground which was not even pleaded in the memo of appeal about the possibility of unauthorized occupancy of respondent no.2 over the land which, admittedly, was a public land recorded in Js.kh 9¼3½ and further, without recording any specific finding foundationed on evidence with regards to the stand taken by respondent no.2 about the so called theory of dispute which she was having with the Sarpanch of the village, the Appellate Court has reversed the judgment without even reversing the findings of the facts which were recorded by the Prescribed Authority.
21. This Court is of the view, that when the Appellate Court, which is a superior forum, deals with the veracity of the judgment, while exercising its Appellate jurisdiction under Section 9 of the Act of 1972, it has had to deal with the reasoning of judgment under challenge or reverse the findings of the Prescribed Authority so as to carve out an exception in favour of the appellant for reversing the judgment, which is not on record evidently apparent from the judgment of the Appellate Court, that the Appellate Court has, at all, ventured into as to what impact would the report of the Patwari have 12 over the proceedings drawn under Section 4 of the Act of 1972 against respondent no.2.
22. The only conclusion, which has been drawn by the learned Appellate Court and the contribution which has been made by it, was an interference made by it because of the unestablished theory of political rivalry and for an alleged unestablished theory, that there is no possibility of occupation over the unlevelled land and also an unestablished theory, that respondent no.2, in fact, was not an occupant of the land for which the notice under Section 4 of the Act of 1972 was issued, but rather it was observed, based on no evidence or reason, she has used the same, which, admittedly, according to both the Courts, was a public land and would be included in it, as per the definition of public property defined under the Act of 1972, has allowed the appeal by judgment of 21.09.2010 on surmises.
23. Thus, the impugned appellate order, since it is not based on a logical appreciation of evidence made by the Appellate Court, which were considered by the Prescribed Authority, which was mandatorily required to be considered while allowing the appeal of respondent no.2, the Appellate Court's judgment cannot be sustained.
24. Before, I conclude, this Court feels it necessary to observe that when the writ-petition 13 was initially taken up on 05.04.2011, the Co- ordinate Bench had issued notice to respondent no.2. Steps were taken by the petitioner and there was a report submitted by the Registry on 08.04.2011, to the effect that neither undelivered envelope has been received back, nor the postal tracking report found. Thus, in accordance with the High Court's Rule, there would be a presumption of service of notice on respondent no.2.
25. It is not only that, The Co-ordinate Bench on 05.10.2017, once again had issued notice to respondent no.2. Once again, the steps were taken by the petitioner and there is an another office report of 12.04.2021, that a signed AD has been received back. That means the knowledge of the proceedings of the writ-petition was imparted to respondent no.2, yet she had avoided to contest writ-petition on merits.
26. In that eventuality, the service of notice of the writ-petition on respondent no.2 would be treated to be sufficient and if despite service of notice as back as in 2021, she has chosen not to contest the proceedings on merits by filing a counter affidavit, the writ-petition has to be proceeded ex-parte against her by, prima facie, accepting the arguments extended by the petitioner qua the challenge given by the State to the Appellate Court's judgment, which, as per the opinion of this Court and the reasoning given by 14 this Court in the preceding paragraph, that the appellate order since, apparently, it does not disclose a rational and judicious applicability of mind, and since it is not a judgment where the finding of facts recorded by the Prescribed Authority has been reversed, the same cannot be sustained.
27. Thus, the judgment of 21.09.2010 is hereby quashed. The matter is remitted back to the District Court, Champat to re-reconsider the matter afresh as per observations made above, after issuance of notice to respondent no.2 and pass a reasonable order after considering the evidence, which were adduced before Prescribed Authority and with regards to the genuineness of the proceedings drawn by issuance of the notice under Section 4 of the Act of 1972 in relation to the land which, admittedly, as per the evidence adduced by the parties before the Prescribed Authority, was a public land, and then only to take a fresh call on the appeal preferred by respondent no.2 under Section 9 of the Act of 1972.
28. Subject to the above, the writ-petition stands allowed.
(Sharad Kumar Sharma, J.) 02.08.2023 Sukhbant/