Sain Das v. District Judge, Nainital — 1985 DIGILAW 99 (ALL)

ORDER K.P. Singh, J. - This writ petition arises out of proceedings under Section 5 of the U.P. Public Premises Eviction of Unauthorised Occupants Act, 1972. 2. The State of U.P. initiated proceedings for eviction of the petitioner under Section 5 of the U.P.C.H. Act No. 22 of 1972 as amended by U.P. Act No. 28 of 1976 on the allegations that the petitioner was in unauthorised occupation of plot No. 226/5. measuring 20 Bigha, situate in village Girdhar Nagar, hence he was liable to ejectment as the disputed land was public premises and belonged to the State of U.P. It appears that the petitioner had filed written objection that the proceeding against the petitioner was bad in law as no notice was issued to him as contemplated by the provisions of Section 4 of the abovementioned U.P. Act No. 22 of 1972. It was also asserted that the petitioner had been in possession over the disputed land for the last 10 years through his Mukhtaraam Shri Mohan Lal. The objection on behalf of the petitioner appears to have been filed by the aforesaid Sri Mohan Lal. 3. The prescribed authority ordered eviction of the petitioner through its order dated 16-4-1979. contained in Annexure 1' attached with the writ petition. Against the judgment of the prescribed authority the petitioner had preferred an appeal under Section 9 of U.P. Act No. 22 of 1972 and the appeal has also been dismissed as is evident from Annexure 2' attached with the writ petition. Against the judgment of the appellate court, the petitioner has approached this court under Article 226 of the Constitution. 4. The learned counsel for the petitioner has contended before me that the judgment of the appellate court and that of the prescribed authority are no judgments in the eye of law. He has suggested that the judgment of the prescribed authority has not been written by the prescribed authority applying its mind to the facts and circumstances involved in the case. It has only filled up a printed form which has been treated as a judgment of the prescribed authority. He has also emphasised that the appellate court has only endorsed the judgment of the prescribed authority without applying its mind to the facts and points involved in the case. It has only filled up a printed form which has been treated as a judgment of the prescribed authority. He has also emphasised that the appellate court has only endorsed the judgment of the prescribed authority without applying its mind to the facts and points involved in the case. He has stressed that the term "public premises" has been misunderstood by the appellate court and the appellate court has not even cared to refer the definition of the term given in the Act. hence its judgment suffers from patent error of law and deserves to be quashed. 5. Second contention raised on behalf of the petitioner is that the petitioner has been in jail for sufficiently long time and no notice as contemplated by S. 4 of U.P. Act No. 22 of 1972 was served upon the petitioner. hence the proceeding for eviction of the petitioner under S. 5 of the abovementioned Act is bad in law and the petitioner could not be evicted in that proceeding. He has drawn my attention to the rulings reported in 1981 All WC 12 : 1981 All LJ 255, Kamlesh Kumar Gupta v. 1st Addl. Dist & Sessions Judge, 1983 All CJ 166, Begum Saeeda Wajahat Hussain v. Vth Addl. Distt. Judge and 1984 All CJ 426 : 1984 All LJ 1022, Bikarama v. 4th Addl. District Judge. 6. The learned counsel for the contesting opposite party has tried to support the impugned judgment. It has been suggested that relevant notice was served upon the Mukhtaraam of the petitioner who had filed written objection in the case so no prejudice has occurred to the petitioner. He has also emphasised that the petitioner cannot acquire any valid title to the disputed land by virtue of his possession for long period. He has also submitted that the petitioner being trespasser, this Court cannot exercise its powers under Article 226 of the Constitution at the instance of the petitioner trespasser. He has referred to the decisions in Writ. No. 5564 of 1971, Fateh Bahadur Sing v. D.D.C. Jaunpur and Writ No. 3777 of 1974(reported in 1979 All LJ 751) Chinta Mani v. State of U.P. 7. I have considered the contentions raised on behalf of the parties. He has referred to the decisions in Writ. No. 5564 of 1971, Fateh Bahadur Sing v. D.D.C. Jaunpur and Writ No. 3777 of 1974(reported in 1979 All LJ 751) Chinta Mani v. State of U.P. 7. I have considered the contentions raised on behalf of the parties. The relevant finding recorded by the appellate court in the present case runs as below : "..........It is clear from the evidence on record that the land in dispute is "public premises" and the occupation of the appellant is under category IV. The appellant does not have an authority for his occupation. His occupation is, therefore, unauthorised". 8. The term "public premises" has been defined by S. 3(e) of U.P. Act No. 22 of 1972 as amended by U.P. Act No. 28 of 1976 and reads as below : "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 (1) to (3).......... (4) 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- (1) 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 the local authority not being land vested in or entrusted to management of a Gaon Sabha or any other local authority under any law relating to land tenures : (ii) any premises under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) held by that company under an agreement executed under S. 41 of that Act providing for re-entry by the State Government in certain conditions." 9. A bare perusal of the impugned judgment indicates that the appellate court did not refer to the definition of the term "public premises" as defined in the Act. On the allegations in the writ petition and the counter-affidavit a relevant question arises whether the disputed land was entrusted to the management of the Gaon Sabha or not. A bare perusal of the impugned judgment indicates that the appellate court did not refer to the definition of the term "public premises" as defined in the Act. On the allegations in the writ petition and the counter-affidavit a relevant question arises whether the disputed land was entrusted to the management of the Gaon Sabha or not. The appellate court has patently erred in holding the disputed land as public premises without noting the contentions of the parties on the point of deciding the same in a judicial manner. To my mind, the impugned judgment is a cryptic judgment and deserves to be quashed. According to the definition of the term "public premises" it is necessary to be determined whether the disputed land was entrusted to the management of the Gaon Sabha under the provisions of U.P. Z. A. and L. R. Act as applicable to the area or not. 10. As regards the petitioner's contention that no relevant notice under S. 4 was served upon the petitioner, it is proper to observe that the appellate court would also decide this point in the light of the pleadings and evidence on record. 11. As regards the submission of the learned counsel for the opposite party that this Court should not exercise its powers under Article 226 of the Constitution at the instance of the petitioner-trespasser, I think that if the provisions of the Act would not be attracted to the facts and circumstances of a case, a trespasser's possession should also not be disturbed forcibly. the possession of the petitioner-trespasser should be disturbed strictly in accordance with law. If the disputed land does not answer definition of "public premises" under the Act, the proceedings against the petitioner would be wholly without jurisdiction and void. In this view of the matter I do not agree with the submission of the petitioner that this court cannot exercise its powers under Article 226 of the Constitution at the instance of a trespasser. For the exercise of discretionary powers under Article 226 of the Constitution there cannot be any hard and fast rule that in no case this Court should exercise powers at the instance of a trespasser. The authorities cited by the learned counsel for the opposite party do not lay down any such absolute rule. For the exercise of discretionary powers under Article 226 of the Constitution there cannot be any hard and fast rule that in no case this Court should exercise powers at the instance of a trespasser. The authorities cited by the learned counsel for the opposite party do not lay down any such absolute rule. In (1969) 3 SCC 415 , Wire Netting Stores v. Delhi Development Authority their Lordships of the Supreme Court have observed in similar circumstances as involved in the present case thus : "It is only after the procedure in this section is complied with that the eviction of unauthorised occupants under Section 5 can take place. It appears that the estate officer did not follow the procedure, of Section 4, nor did he give a notice which would comply with its terms and that is the reason why the notice has not been produced before us for our perusal. The petitioners said that they had mislaid the notice and could not produce a copy which probably is also not true. In any case, both sides seem to have suppressed the notice from the Court. In this view of the matter we can hold that the procedure laid down by S. 4 was not followed, for it was the burden of the authority to establish to our satisfaction that they were acting in accordance with the law. In any case, no opportunity appears to have been given to the petitioners for showing cause against the proposed eviction. This is contrary not only to the law laid down but also to the principles of natural justice. In these circumstances, we have no option but to allow the petition. The action of the authority appears to have been most highhanded on the facts of the case as brought out before us. If the authority wished to evict the petitioners from the occupation of these premises it behoved them to follow strictly the procedure laid down for their action. It is a manner of great regret that authorities constituted to take such drastic steps without recourse to civil court should be so oblivious to their own duties as laid down in the Act. We accordingly allow the petition and order the restoration of the premises to the petitioners and return of all the machinery and other goods and parts of their factory which have been seized from them." 12. We accordingly allow the petition and order the restoration of the premises to the petitioners and return of all the machinery and other goods and parts of their factory which have been seized from them." 12. In short, from the above extract, it is clear that even a trespasser should be evicted from the premises strictly in accordance with law. If the disputed land does not answer the term "public premises" as defined under the Act, the proceedings against the petitioner would be without jurisdiction and justification. In such a circumstance repel the contention raised on behalf of the opposite party that this court cannot exercise powers under Article 226 of the Constitution at the instance of the petitioner-trespasser specially when the judgment of the appellate court is cryptic and does not deal with the relevant point involved in the case. 13. In the result, the writ petition succeeds and the impugned judgment of the appellate court dated 12-11-79 is hereby quashed and the appellate court is directed to redetermining the claims of the parties in the light of their pleadings and evidence as well as the observations made above in this judgment. There would be no order as to costs.