Ram Singh vs State Of Uttarakhand And Another on 11 September, 2020

[Cites 6, Cited by 1]

Uttarakhand High Court

Ram Singh vs State Of Uttarakhand And Another on 11 September, 2020

Equivalent citations: AIRONLINE 2020 UTR 504

(Via Video Conferencing) The proceedings under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, was initiated against the petitioner, by virtue of a Challani report dated 12th November, 2008, which was submitted by the Patwari, Gairsain and as per the report thus submitted, it was observed that the petitioner is an unauthorised occupation of a land lying in khata No. 80, khasra 1053, and it was alleged that petitioner has unauthorisedly occupied a public premises, having an area of 0.213 hectares, situated in Village Dhargaid, Post Office Gairsain, Tehsil Gairsain, District Chamoli (hereinafter to be called as the disputed property).

2. As per the said report, which was submitted and which was the basis of the proceedings for issuance of notices under Section 4/5 of the Act of 1972, it was contended that the petitioner had unauthoriedly occupied a piece of land, which was a public land, as per the Act, having an area of 5 x 5 meter, i.e. equivalent to 0.003 hectares and it was a land, which was otherwise recorded in revenue records in Shreni-9. It was further submitted in the report that the petitioner by virtue of an unauthorised occupation over the disputed land, has raised a construction by way of a tin shed, which was being 2 utilized by him for his residential purposes after raising the constructions, thereon it.

3. The proceedings were held before the Prescribed Authority and the Court of learned Prescribed Authority in P.A. Case No. 4 of 2007, State Vs. Ram Singh, had passed the judgment on 30th July, 2009, whereby, apart from directing the petitioner to be evicted from the land, in question, he had imposed the damages for the user of the property of an amount of Rs. 32,000/-. This judgment of the Prescribed Authority was put to challenge by the petitioner under Section 9 of the Act of 1972, by filing the Eviction Appeal, being Eviction Appeal No. 4 of 2009, Ram Singh Vs. State of Uttarakhand. The said Appeal too has been dismissed by the one of the impugned judgments dated 14th October, 2011, which is under challenge before this Court.

4. As per the averments and pleadings, which has been raised by the petitioner, his argument is that the very inception of the proceedings by way of Challani report dated 12th November, 2008, it would be bad for the reason being that the property was not appropriately demarcated, measured or identified on the spot in order to determine the expanse of his alleged unauthorised possession over the disputed land, which is said to be recorded in Shreni - 9 as per the Land Record Manual, lying in khasra No. 1053. He further submits that his possession over the property, in question, happens to be a possession of a period over 30 years and since he has raised his residential construction, he has matured his rights over disputed land by virtue of an adverse possession too. He further submits that the proceedings of eviction under Section 4/5 of the Act, may not be resorted to against him at the moment for the reason being that he has already moved an appropriate application before the respondent No. 2, for the purposes of leasing out, of this disputed property in his favour considering the age of his possession and also considering the nature of the user of the property, with which, he is occupying.

Subsequently, by an order dated 21st February, 2013, the petitioner had added an additional ground to his pleading to the effect that the imposition of the damages for the user of the property; as made by the Prescribed Authority and which was later affirmed by the Appellate Authority runs contrary to the provisions contained under Section 7 of the Act because the determination of the amount of the compensation payable was not appropriately and adequately resorted to by the respondents and procedure contemplated therein under Section 7, has not been taken care of particularly considering the fact that even in accordance with the challani report, which is of 12th November, 2008, the possession according to the respondents own showing is shown to be w.e.f. October, 2007. Meaning thereby, the counsel for the petitioner submits that even on their own showing the determination of the compensation was contrary to the provisions contained under Section 7 of the Act and even if it was determined without resorting to the process provided therein, the said argument extended by the counsel for the petitioner in relation to non compliance of Section 7, stands affirmed from the facts that if the judgments of both the Courts below are taken into consideration; at the stage when the Courts proceeds, to determine the compensation payable, in fact, it was incorporated in the operative portion of the judgment only by adding it in handwriting of the Prescribed Authority without there being any actual determination made in the body of the judgment by assigning reasons as to how and in what manner the damages of Rs.32,000/- has been determined by the Courts below. The said deficiency of non compliance of Section 7 stood affirmed by the Appellate Court as the Appellate Court too has affirmed the same without assigning any reasons.

5. The petitioner has also raised a ground that looking to the property, in question, and the manner in which, he has occupied and the purpose for which the property was put to use, it will not fall to be within the definition of public premise as defined under the Act of 4 1972, though this is not a ground of contest in the present Writ Petition.

6. The very fact that by virtue of the amended plea, the petitioner has raised a ground of non compliance of Section 7, it would amount to that in principle the petitioner is admitting his status of occupancy of a public land in an unauthorised manner. Be that as it may.

7. Apparently, this Court is satisfied, as far as the argument extended by the counsel for the petitioner is concerned pertaining to the non compliance of Section 7 of the Act, hence, from that prospective the judgments are partially quashed and modified to the extent that the Prescribed Authority is directed to re-considered the aspect of determination of damages only after adherence of the principle of Section 7 of the Act.

8. While setting aside the orders under challenge on the premise of non compliance of Section 7, it should not be inferred as misunderstood as if this Court has determined the status of the petitioner, as not to be an unauthorised occupant because his plea of Section 7 itself infers his status to be unauthorised occupant of the public land.

9. In such an eventuality, when the matter is being remitted and remanded to the Prescribed Authority for re-determination of the damages and also, considering the fact that the pleading has been raised by the petitioner, that he has applied before the respondent No. 2 for grant of lease of the land occupied by him and the same is pending consideration before respondent No.2, coupled with the fact that the said pendency of the application for regularization of his possession, by grant of lease is a fact, which has been admitted by the respondents in their counter affidavit, to the effect that the same is pending consideration, this Writ Petition, would carry a direction to 5 the District Magistrate; to consider the pending application of the petitioner for grant of lease of the disputed land, which is alleged to have been occupied by him unauthorisedly. He would take a decision on the application of the petitioner for the grant of lease in accordance with law. The only clarification, which is being made by this Court at this stage is that though this Court is affirming the finding against the petitioner that as to be unauthorised occupant, and remitting the matter back to the Prescribed Authority to re-determine the damages under Section 7, but the consequential effect of setting aside the judgments would not be construed to grant him regular entitlement over the land, which has to be independently decided by the District Magistrate independently as per law. It is made clear that the possession of the petitioner over the land, in question, would not be disturbed until and unless, the District Magistrate decides his pending application for the grant of lease, which has been pleaded in the Writ Petition and the said fact of pendency of application for grant of lease, which is not denied by the Standing Counsel.

10. Hence, the Writ Petition is being partly allowed with the following directions :

i. The matter is remitted back to the Prescribed Authority to re-determine the damages payable by the petitioner strictly in relation to his unauthorised occupancy of the land belonging to the State recorded in Shreni - 9, as per the provisions contained under Section 7 of the Act.

ii. This Court affirms the finding pertaining to the status of the petitioner being determined to be an unauthorised occupant and logically too when the petitioner himself has taken a defence of non compliance of Section 7 of the Act, he admits himself to be an unauthorised occupant over a public premises.

iii. The petitioner's application for grant of lease pending consideration before the District Magistrate would be decided by him in accordance with law as expeditiously as possible, but 6 not later than six months from the date of production of this judgment before him.

iv. Till his application for grant of lease is decided by the District Magistrate, no coercive action of forceful eviction of the petitioner from disputed property would be taken from the land in question as a consequence of affirming his status as to be an unauthorised occupant by this Court.

11. Subject to the aforesaid observations, the Writ Petition partly succeeds. The judgments impugned are modified to that extent.

(Sharad Kumar Sharma, J.) 11.09.2020 Shiv

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Uttarakhand High Court