Chinta Mani v. State of U. P — 1979 DIGILAW 211 (ALL)

ORDER K.C. Agrawal, J. - This writ petition is directed against a judgment of the District Judge, Nainital, dated 29-5-1974, dismissing an appeal filed by the petitioner under Section 9 of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (U. P .Act No. XXII of 1972), hereinafter referred to as U. P. Act XXII of 1972. 2. The dispute in the present case is with regard to plot No. 193/1, situated in village Chutki, Tahsil Kichha, district Nainital. The facts which led to the filing of the present writ petition may briefly be stated as under: - 3. On 24-4-1961, a notice under Section 3 of the U. P. Public Land (Eviction and Recovery of Rent and Damages) Act, 1959 (hereinafter called the 1959 Act) was issued to the petitioner for his eviction from the aforesaid plot on the ground that he was in its unauthorised occupation. The petitioner contested the notice on the ground that he was in possession of the land on behalf of one Shib Lal, who was a regular allottee of this land and thus, according to the petitioner, he was only cultivating the land for and on behalf of the real tenant of the land and, as such, no proceedings for eviction could lie against him under the aforesaid Act in respect of this land. In other words, the plea of the petitioner was that the land was not 'public land within the meaning of that expression and, as such no action could be taken against the petitioner. 4. Before the prescribed authority, the State Government admitted that Shib Lal had previously been admitted as a tenant but by proceedings under Ss, 87 and 88 of the U. P. Tenancy Act, the Tahsildar had declared that the holding had been abandoned by him. The State Government pleaded that on account of the declaration of abandonment of the tenancy, the rights of Shib Lal were extinguished under Section 45 of the U. P. Tenancy Act. 5. The prescribed authority upheld the contention of the petitioner and discharged the notice issued under Section 3 (1) of the 1959 Act. Against this order, the State Government preferred an appeal. In appeal the Appellate Authority did not agree with the finding of the Prescribed Authority that the holding had not been abandoned by Shib Lal. 5. The prescribed authority upheld the contention of the petitioner and discharged the notice issued under Section 3 (1) of the 1959 Act. Against this order, the State Government preferred an appeal. In appeal the Appellate Authority did not agree with the finding of the Prescribed Authority that the holding had not been abandoned by Shib Lal. The Appellate Authority held that the judgment of the Tahsildar, holding that Shib Lal had abandoned the holding, was binding on the authorities. He, however, found that since the rent of the period subsequent to the abandoment had been accepted, the State Government had condoned the earlier position and accepted Shib Lal as a tenant of the disputed Land. In this view of the matter, the Appellate Authority found that Shib Lal remained a tenant of the disputed land and he was a tenant when those proceedings were initiated, against the petitioner, and notice under Section 3 (1) was liable to be declared invalid. According to the view of the Appellate Authority, proceedings for the eviction under Section 3 of the 1959 Act could be taken by the State Government in respect of 'Public Land but since there was a sitting tenant and the rights of that sitting tenant had not extinguished, the State Government could not claim any right over it. 6. After the enforcement of the U. P. Act XXII of 1972, a fresh notice was issued to the petitioner for his eviction from the land on the ground that he was a trespasser and, as such, was an unauthorised occupant, under cl. (g) of Section 2 of the U. P. Act XXII of 1972. In response to the notice, the petitioner filed an objection under Section 5 claiming that he was not an unauthorised occupant and, as such, the proceedings taken against him were liable to be dropped. The petitioner asserted that the land had been allotted to Shib Lal and that he was in its possession as his representative. It was also alleged that in the earlier action taken under the 1959 Act, the notice had been discharged and the present proceedings were not maintainable. The petitioner also claimed that he was a hereditary tenant having acquired rights under Section 180 (2) of the U. P. Tenancy Act. He claimed that after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, the petitioner became a Sirdar. The petitioner also claimed that he was a hereditary tenant having acquired rights under Section 180 (2) of the U. P. Tenancy Act. He claimed that after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, the petitioner became a Sirdar. 7. On a consideration of the evidence, the prescribed authority held that the land in dispute constituted 'public premises and that the petitioner was in its unauthorised occupation. It further held that the decisions given in the proceedings taken under the 1959 Act did not bar the present proceedings and, as such, the petitioner was liable to be evicted. Against this order, the petitioner filed an appeal. The appeal was also dismissed, hence the writ. 8. The first point that arises for determination in the present case is about the effect of the discharge of the notice issued to the petitioner under Section 3 (1) of the 1959 Act. I have already mentioned above that the said notice had been discharged on the ground that Shib Lal was the allottee and, as such, the land was not 'public land' and no action could lie against the petitioner on that basis. It, however, appears to me that as the law, after the aforesaid decision, had changed, the judgment given in the earlier case will not operate as a bar to the maintainability of the second notice. It has already been noticed above that on the basis of the payment of rent by means of two rent receipts dated 17-12-1960 and 29-4-1961 the Appellate Authority, dealing with the appeal filed under the 1959 Act, held that Shib Lal should be deemed to be a tenant. But for these two receipts, the Appellate Authority would not have found that the tenancy of Shib Lal had revived inasmuch as it had earlier been held by it that the order of the Tehsildar holding that the tenancy had been abondoned by Shib Lal was binding on the authorities. The payment of rent was thus the sole basis for holding that Shib Lal continued to be the tenant. 9. While enacting Act No. XXII of 1972, the legislature provided for the eviction of unauthorised occupants. The provisions for taking action against unauthorised occupants is to be found in Sections 4 and 5 of the U. P. Act XXII of 1972. The word 'unauthorised occupation has been defined in Cl. 9. While enacting Act No. XXII of 1972, the legislature provided for the eviction of unauthorised occupants. The provisions for taking action against unauthorised occupants is to be found in Sections 4 and 5 of the U. P. Act XXII of 1972. The word 'unauthorised occupation has been defined in Cl. (d) of Section 2 of the aforesaid Act. The material portion of the aforesaid definition is extracted below: - "a person shall not, merely by reason of the fact that he had paid any amount as rent, be deemed to be in authorised occupation." It would thus be found that under the definition, now given in the new Act, the mere payment of rent could not be a ground to hold a person to be an authorised occupant. This position did not obtain under the old Act. The Appellate Authority had found that the rights of Shib Lal as a tenant had extinguished on account of the abandonment. It, however, held that due to the subsequent receipt of rent by the State Government, the abandonment should be deemed to have been condoned but on account of the new definition the payment has to be ignored. If the payment is ignored, Shib Lals tenancy could not revive. As such, the petitioner cannot be said to be lawfully holding the land on behalf of Shib Lal inasmuch as Shib Lal himself did not have any right left after the abandonment of the tenancy. 10. In Ram Deo Singh v. Board of Revenue ( AIR 1961 All 278 ): (1960 All LJ 593), a Division Bench of this Court held that owing to change of law, the decision given at previous stage would not operate as res judicata. It may be true that on both the occasions the question in general terms was the same, but the law governing the rights had changed in the meantime. 11. When the proceedings under the new Act were started, it was found that the petitioner was in possession of the land but as Shib Lal had abandoned the holding and had not left legal heir to occupy the said holding, the petitioner, who retained the land in dispute as a trespasser, cannot get the benefit of the judgment given in the earlier case. The land in dispute, after the abandonment, was vested in the State of U. P. and the petitioner was liable to be evicted. The petitioner had no authority to hold this land as a legal successor of Shib Lal and, therefore, he had no right to be in possession of the same. He had taken possession of the land forcibly and, as such, he was recorded in class 10A, i. e. as a trespasser. 12. The second question raised by the learned counsel was that the petitioner had acquired the rights of a hereditary tenant under sub-sec. (2) of Section 180 and, as such, was not liable to be evicted. In. this connection he had also urged that as he was a hereditary tenant, he became Sirdar. Section 29 of the U. P. Tenancy Act, deals with various classes of tenure-holders. Section 30 of the U. P. Tenancy Act, however, lays down certain classes of land over which the rights of a hereditary tenant shall not accrue. For our purposes the relevant portion is: "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..." 13. 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, it would, therefore, follow that a person would not acquire the rights of a hereditary tenant under Section 180 (2) even if it was assumed that the State did not file a suit for eviction for a period of more than two years. Omission of the State Government to institute a suit under Section *80 (1), within the prescribed period of limitation would not confer any right on the person holding the land. 14. It is of course true that in order to apply sub-sec. (3) of Section 30, it is necessary to establish that the land was either acquired or held by the State Government for a public purpose or work of public utility. In the instant case, the land is situated in village Chatki, which was a part of Tarai and Bhabar. In the District Gazetteers of the United Provinces, Volume XXXIV Nainital, page 140, the geographical situation of this has been given. In the instant case, the land is situated in village Chatki, which was a part of Tarai and Bhabar. In the District Gazetteers of the United Provinces, Volume XXXIV Nainital, page 140, the geographical situation of this has been given. It mentions: "Below the hills lies the Bhabar, which consists of the pattis of Bhabar Chaubhainsi to the east, Bhabar Chhakhata in the centre, Bhabar Kotah and Chilkia to the west. The Bhabar is in every way distinct from to the hill pattis, as it forms an estate managed directly by Government in which the State is with a few exceptions the actual landlord; it is in the charge of the Tahsildar of Haldwani and the Peshkar of Ramnagar, with a naib-peshkar at Kaladhungi. Below the Bhabar is the Tarai, which is administered in a manner similar to that of the Bhabar, and is in the charge of the Tahsildar of Kichha." 15. It appears from the counter-affidavit that in 1946 the Governor constituted a committee to investigate the various problems both from the technical as well as from the administrative point of view and to prepare a blue print of scheme of all-round development of the Tarai area in Nainital, Tarai and Bhabar State. This committee submitted a detailed report for its development. The development of this area had been necessitated also due to the difficult position which had cropped up on account of the migration of a large number of person from Pakistan. The Government created a separate department known as Colonisation Department. The purpose of creating the Colonisation Department was to rehabilitate these persons and to grant land to them. At that time a major portion of the Bhabar area was covered with the forests. The area under for was largely composed of cultivable forest. The Government thereafter under the provisions of the Indian Forest Act, made a notification for the deforestation of the entire forests of Tar Bhabar and Kashipur area. Thereafter the Government on 8-4-1948 transferred the entire land under the management of the Colonisation Scheme. It was given to this Colonisation Scheme for 'public purpose, i.e. for rehabilitation of refugees, ex-military personnel and political sufferers. Thereafter the Government on 8-4-1948 transferred the entire land under the management of the Colonisation Scheme. It was given to this Colonisation Scheme for 'public purpose, i.e. for rehabilitation of refugees, ex-military personnel and political sufferers. Thus the entire area of the land belonging to the State of Tarai Bhabar and Kashipur was given to the Colonisation Department for the 'pub lie purpose' and the Colonisation Department was dealing with the land under the Colonisation Scheme. After some time Colonisation Department had been abolished. 16. In this way, it would be seen that' the land held under the Colonisation Scheme was meant for development ana rehabilitation. These are clearly 'public purpose and, as such, no hereditary rights could accrue thereon to a person unauthorisedly and illegally taking possession of the same. In Vichitra Singh v. State of U. P (1970 All LJ 361) a learned single Jud of this Court took the same view. He held that Section 30 of the U. P. Tenancy Act was declaratory provision which prevented the accrual of hereditary right in certain classes of land mentioned in it. Sub-sec. (2) of Section 180 is subjected 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 Bendy 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. 17. Recently in Jai Dutt v. State of U. P. (1979 All LR 27): (1979 All LJ 714) 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. 18. Next comes the question of acquiring of the rights of Sirdari. It may be noted that the provisions of the U. P. Zamindari Abolition and Land Reforms Act were made applicable to the area in question by means of a notification issued in Sept., 1969. 18. Next comes the question of acquiring of the rights of Sirdari. It may be noted that the provisions of the U. P. Zamindari Abolition and Land Reforms Act were made applicable to the area in question by means of a notification issued in Sept., 1969. By this notification, the provisions of the said Act were applied to the areas mentioned therein with alterations and modifications. Amongst the various modifications made, one of the important modifications is that Chapter 2 of the aforesaid Act does not apply to this area. Thus Sec. 19 of the said Act is not applicable to the area in question. 19. Furthermore, Section 132 provides that the hereditary rights shall not accrue to certain types of land. Sub-s. (7) of Section 132, as made applicable to Tarai and Bhabar area of district Nainital, is as follows: - "(7) Land not leased out by the State Government to any one but in unauthorised occupation of any person or persons." Thus in view of that Cl. (7), the petitioner cannot acquire any right under the U. P. Zamindari Abolition and Land Reforms Act inasmuch as it is admittedly the Government land, the land was always held for 'public purpose. 20. For all these reasons, the writ petition fails and is dismissed with costs. The interim stay order dated 16-7-1974 is vacated.