Suresh Chandra v. District Judge, Nainital — 1979 DIGILAW 210 (ALL)

ORDER K.C. Agarwal, J. - This writ petition has been preferred against a judgment of the Additional District Judge, Nainital, dated April 22, 1978, dismissing an appeal, of the petitioner filed under Section 9 of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 U.P. Act No. XXII of 1972). 2. The prescribed Authority Tarai and Bhabhar, issued notice under S, 4 of U. P. Act XXIT of 1972 to the petitioner calling upon him to show cause as to why he was not liable to be evicted from plot No. 22/204. situated in village Ghukti in Tarai area of Tarai and Bhabar Sub Division. The petitioner filed an objection to the effect that he was a resident of the former North West Frontier Province of British India and during the partition of India he came to settle in village Chukti. He alleged that he purchased the land from one Hamid Ali Khan who was the tenant of the land in dispute and the name of the petitioner was wrongly shown as trespasser. The petitioner claimed that he had been in cultivatory possession of the land for more than thirty years and, as such, acquired rights of hereditary tenant and became Sirdar thereof. 3. The prescribed Authority rejected the objection of the petitioner and held that the possession of the petitioner over the disputed land was recent and that he had failed to establish that the same had been allotted lo him. The Prescribed Authority also held that the land was public premises within the meaning of Section 2 (e) of U. P. Act XXII of 1972. 4. The petitioner preferred an appeal under Section 9 of the aforesaid Act. The appeal was dismissed, hence the writ. It would be noticed that the main claim of the petitioner was that he had purchased the land from Hamid Ali Khan. In support of his claim he had entered into the witness-box. In the witness-box he admitted that he had no allotment order or Patta in respect of the disputed land. The petitioner could not bring any evidence on record to show that Hamid Ali Khan was the lawful tenant of the properly in dispute and that he had a transferable right in the land in dispute. In the witness-box he admitted that he had no allotment order or Patta in respect of the disputed land. The petitioner could not bring any evidence on record to show that Hamid Ali Khan was the lawful tenant of the properly in dispute and that he had a transferable right in the land in dispute. The extracts of Khasra and Khetauni on record showed that the disputed land was of category 4 and as such, the petitioner was not a hereditary tenant. 5. Sri V. K. S. Choudhary, counsel appearing for the petitioner, however, contend ed that the Tarai and Bhabar estate was previously the Crown Estate whose income went to the coffers of the British Crown. If became the Government Estate on the British ceasing to have sovereignty over India. In this background lie contended that the land could not he said to be the land held by the State Government for public purpose or work of public utility. lie also contended that Hamid Ali Khan got it from the Crown Estate and, as such, he had a transferable right. The submission is liable to he rejected on grounds more than one. 6. The petitioner did not plead either before the Prescribed Authority or the appellate court that the land formed part of the Crown Estate and that Hamid Ali Khan had acquired the rights in it under a lease from the Crown. As I have already pointed out above, the petitioner had not brought any evidence on record before the Prescribed Authority that Hamid Ali Khan was a tenant and that he had a transferable right. Before me there is no evidence to show that the land ever formed part of the Crown Estate. I am not prepared to accept the ipse dixit of the petitioner and to hold on its basis that the plot was a part of the Crown Estate. This statement made has not been supported by any evidence on the record. It is not possible, on the basis of a general statement made in the writ petition, to decide the controversy raised by the learned counsel for the petitioner. 7. The two authorities below had found that the land in dispute belonged to the State Government and that no rights of a hereditary tenant could accrue to the petitioner under sub-sec. (2) of Section 180 of the U. P. Tenancy Act. 7. The two authorities below had found that the land in dispute belonged to the State Government and that no rights of a hereditary tenant could accrue to the petitioner under sub-sec. (2) of Section 180 of the U. P. Tenancy Act. Section 30 (2) of the U. P. Tenancy Act lays down that hereditary rights would not accrue over the land of the State Government. It may be noted that Section 180 of the U. P. Tenancy Act is subject to the restrictions contained in Section 30 of that Act, which provides : - - "Notwithstanding anything in Section 29, hereditary rights shall not accrue on - - (3) land acquired or held for a public purpose or work of public utility............" 8. Even if it is assumed that the petitioner was, at the material time, in occupation of this land for more than two years, he would not have acquired rights of a hereditary tenant under Section 180 (2). The omission of the State Government, therefore, to institute a suit under sub-sec. (1) of Section 180 within the period prescribed by law, would not confer the right of hereditary tenant on the petitioner. In Vichitra Singh v. State of LT. P. (1970 All LJ 361) a learned Single Judge of this Court took the same view. He held that Section 30 of the U. P. Tenancy Act was a declaratory provision which prevented the accrual of hereditary rights in certain classes of land mentioned in it. Sub-sec. (2) of Section 180 is subject to Section 30, hence hereditary rights could not accrue in classes of land mentioned in Section 30. In Writ Petn. No. 3277 of 1966, Sant Lal v. State of U. P.. a Division Bench of this Court took the same view. It held that under Section 30 of the U. P. Tenancy Act no hereditary rights could accrue in certain kinds of land and, as such, no rights could accrue in land acquired or held for public purpose. 9. Recently in Jai Dutt v. State of U. P. (1979 All LR 27) the Supreme Court was called upon to consider the said question in connection with an appeal which had been taken against the judgment of the High Court. 9. Recently in Jai Dutt v. State of U. P. (1979 All LR 27) the Supreme Court was called upon to consider the said question in connection with an appeal which had been taken against the judgment of the High Court. Agreeing with the High Court, the Supreme Court found that the rights of a hereditary tenant could not be acquired on the land held for public purpose. 10. It may, however, be pointed out that there was no dispute raised before the courts below that the land in dispute belonged to the State Government and was held for public purposes. The only dispute raised was that the petitioner became a hereditary tenant due to the omission of the State Government to file a suit of eviction against him. 11. The other dispute was that the petitioner was a Sirdar. It may be noted here that the provisions of the U. P. Zamindari Abolition and Land Reforms Act had been applied to the land in dispute by a notification. issued in 1969. Counsel contended that the petitioner had acquired the rights of a Sirdar under Section 19 of the aforesaid Act and while making this submission he forgot to notice that Chap. 2 of the aforesaid Act, where Section 19 is to be found, has not been applied to the areas where the present land is situated. Section 19 applies only to certain classes of tenureholders mentioned therein. 12. Another thing worth of notice is that Section 132 of the U. P. Zamindari Abolition and Land Reforms Act, which has been made applicable to the area in dispute, clearly provides that no rights of Sirdari could accrue on the land belonging to the State Government. Accordingly, the petitioner could not also become a Sirdar. In view of what I have said above, I find that the writ petition filed] by the petitioner has no substance. The petitioner was in unauthorised occupation and, as such, the order was made against him under sub-sec (1) of Section 5 of U. P. Act No. XXII of 1972. 13. It may be noted here that the land in question is situated in village Chukti in Tarai area in Tarai and Bhabar Sub-Division. In Writ Petn. The petitioner was in unauthorised occupation and, as such, the order was made against him under sub-sec (1) of Section 5 of U. P. Act No. XXII of 1972. 13. It may be noted here that the land in question is situated in village Chukti in Tarai area in Tarai and Bhabar Sub-Division. In Writ Petn. No. 3777 of 1974, Chinta Mani v. State of U. P. a detailed counter-affidavit has been filed on behalf of the State Government stating that the land of this village was held for public purpose. The public purpose was the rehabilitation of the refugees, settlement of Ex-military personnel and political sufferers. It is thus clear that the land in the instant case was held for public purpose and, as such, no rights of a hereditary tenant could accrue to the petitioner. It is because of this reason that the petitioner did not allege either before the Prescribed Authority or the Appellate Authority that the land was not held by the State Government for public purpose and it was the Crown Estate. As already discussed above, no evidence has been brought on record by the petitioner to show that the land was received either through a Patta or any other document by the petitioner- or Hamid Ali Khan. 14. In the result, the writ petition, fails and is dismissed with costs. The writ petition fails and is dismissed with costs. The interim order dated 23-8-1978 is vacated.