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2013 DIGILAW 57 (UTT)

JAGDISH PRASAD v. STATE OF UTTARAKHAND

2013-02-25

V.K.Bist

body2013
JUDGMENT Hon’ble V.K. Bist, J. Controversy involved in all the petitions is identical, though the petitioners vary, however the defendants are same and this Court has to adhere and adjudicate upon a common question of law, therefore, common order is being passed in all the petitions. Writ Petition No. 1257 of 2011 (M/S) shall be the leading case. 2. All the petitions have been filed assailing the orders of the Appellate Courts by which orders of Prescribed Authorities under U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as the Act) were upheld. The petitioners are challenging the validity of eviction proceedings initiated against them by the State Government under the Act. 3. Learned counsel appearing for the petitioners submitted that no proceedings under the Act could be initiated against the petitioners after the period of two years from the date of creation of State of Uttarakhand, as the Act has not been adapted by the State of Uttarakhand within stipulated period of two years, therefore, in absence of any adaptation order of State of Uttarakhand, the provisions of the Act cannot be permitted to be invoked after completion of stipulated period from cut off date i.e. 09.11.2000. 4. It is asserted in some petitions that under the provisions of Kumaon Nayabad and Waste Lands Act, 1948, the tenure holder of the Kumaon Division (which included Garhwal Division as well at that time) had a right to extend his cultivation under the Act as right of extension. It was also provided in the Act that the person so extending his cultivation, shall possess the same rights over such extension as he has in his original cultivation. In some of the petitions, the petitioners claim their possession over the land in dispute, recorded in the name of State Government and they had already constructed cowshed and hutment thereon for their cattle and the land in dispute has been in possession of the petitioners from the time of their ancestors. In some of the petitions, the petitioners asserted that the land in dispute is shown in the name of Van Panchayat. It is asserted that Rule 20 (b) of Panchayati Forest Rules, 2005 entrusted on the management committee to institute and defend the suits and proceedings in respect of the claims arising under these Rules. In some of the petitions, the petitioners asserted that the land in dispute is shown in the name of Van Panchayat. It is asserted that Rule 20 (b) of Panchayati Forest Rules, 2005 entrusted on the management committee to institute and defend the suits and proceedings in respect of the claims arising under these Rules. Rule 25 (g) of Panchayati Forest Rules, 2005 fix duty on the Surpanch to institute civil suits and launch prosecution on behalf of the management committee. Hence, in respect of the land relating to the Van Panchayat, no proceedings can be initiated on pursuance of the Revenue Officer/Patwari by invoking the Act. In some of the petitions, it is alleged that the property in dispute is totally out of public use and the local public has also no objection upon the use of the property, which is in the possession of the petitioners and which is registered in the name of the petitioners in Khata-Khatauni. In some petitions it is asserted that the land in dispute was in occupation of the petitioners in the capacity of tenant on behalf of its landlords. 5. It is asserted in the petitions that on the basis of Challani reports received from the Patwari concerned, on the allegations of unauthorized occupation, the respondent/State initiated proceedings under Section 4(1) of the Act, which was registered before the trial Court/Prescribed Authority. Accordingly, the Prescribed Authority issued notices in the Form A under Section 4(1) of the Act, calling upon the petitioners to show cause as to why the petitioners may not be evicted from the land in question. The petitioners appeared before the Prescribed Authority and filed their respective written statements. It is asserted that the notice was defective as notice under Section 4 of the Act provides that there must be a prima-facie opinion of the Prescribed Authority that the person, against whom such notices have been issued, is in unauthorized occupation of any public premises and he should be evicted. Further, no notice was ever been served on the petitioners prior to initiating the proceedings for eviction. 6. Further, no notice was ever been served on the petitioners prior to initiating the proceedings for eviction. 6. It is contended that notice under Section 4 of the Act is patently erroneous inasmuch as, there is no satisfaction recorded by the Prescribed Authority before issuing notice, nor the detailed specification of the property i.e. boundaries of the property had been mentioned, so that the premises/ land in issue may be identified. It is further contended that none of the ingredients of the notice under Section 4 of the Act have been met out by the said notice. 7. Learned counsel for the petitioners requested that first the question of applicability of the Act be decided. The question thus formulated is whether in absence of there being any adoption made by the State of Uttarakhand under Section 86 read with Section 87 of the U.P. State Reorganization Act, 2000, the provisions of the Act would apply to the State of Uttarakhand, after expiry of two years period contemplated for its adoption? 8. Learned counsel for the petitioners contended that once the State is created under Article 2 of the Constitution of India and under the constitutional power it is included in the 1st Schedule of the Constitution of India, then it is conferred with its independent identity and existence and, thus the provisional Government in existence cannot be divested with the powers to legislate and that is why Sub Section (2) of Section 14 of U.P. Reorganization Act has been legislated. It is contended that on a conjoint reading of sub Article (a) of Sub Article (3) of Article 13 read with Sub Article (b) of Sub Article (3) of Article 13 of the Constitution, law has its enforceability in a territory of a country or a state only when it is made by Legislature, hence on the creation of State of Uttarakhand until and unless in view of provisions of Section 86 and 87 of U.P. Reorganization Act, 2000, it will not have its enforceability under the Constitution, as well as the Reorganization Act. The Act has been constituted by Schedule 7 List I Entry 32 which in accordance with Article 247 of the Constitution deals with the property of the Union and the revenue therefrom, but as with regards to property situate in the State subject to legislation of State, herein also for dealing with the property belonging to the State as contemplated under Entry 32 of List I of Schedule 7 of the Constitution, it could only be managed when there happens to be a competent law enforceable by the State under the Constitution but in the absence of the same, the same will not apply in the State of Uttarakhand. 9. It is further contended that for the purpose of bringing an Act or law as defined under Sub Article (a) of sub Article (3) of Article 13 or to bring it within the definition of law as defined under Sub Section (f) of Section 2 of the U.P. Reorganization At, which uses the word ‘force of law’ could only be attached to it when it is adopted under Section 86 read with Section 87, in the absence of its adoption any law as applicable in the undivided territory of State of U.P., will not apply to the newly created territory of State of Uttarakhand. It is vehemently contended that under sub-Article (10) of Article 366 of the Constitution of India, after the creation of State of Uttarakhand until and unless an Act is adapted, it will not fall with the definition of an existing law to make it enforceable in the newly crated State of Uttarakhand. Moreover, Article 208 of the Constitution, particularly sub-Article (2) provides that the legislature of the corresponding provisions shall only have its effect to the legislature of the State, only when the same is subject to such modification and adaptation, as may be made by the Legislative Assembly or the Chairman of Legislative Council. 10. Moreover, Article 208 of the Constitution, particularly sub-Article (2) provides that the legislature of the corresponding provisions shall only have its effect to the legislature of the State, only when the same is subject to such modification and adaptation, as may be made by the Legislative Assembly or the Chairman of Legislative Council. 10. It is further contended that on reorganization of State, a new State is created for the purposes of enforceability of law to a territorial extent of State and law existing has to be adapted by the State within a stipulated period from the appointed day and from the appointed date, the period of two years is provided as a transitional period, during which the preexisting laws, as applicable to the undivided State would continue to operate and thereafter on expiry of the above period i.e. the period provided for the law to be adapted it will not have its enforceability in a State until and unless it has been legislated after the period of two years. Thus, after the expiry of stipulated period, the law existing will not become a law enforce until and unless legislated by the competent Legislature. It is vehemently contended that the provisions of Section 86 read with Section 87 of the U.P. Reorganization Act, 2000 is akin to the provisions of Section 119 & 120 of State Reorganization Act, 1956 and in league with Article 372 of the Constitution and in the above provisions it is derived that to enforce a law in a newly created territory it is required to be adapted and that adaptation is to be done within the period specified under the Reorganization Act i.e. 2 years. If the same is not adapted within said period, the pre-existing law as enforced in the undivided territory of State will cease to apply. 11. Learned counsel for the petitioners pleaded that in pursuance of Section 87 of U.P. Reorganization Act, 2000, no adaptation and modification order was passed by the Govt. of Uttarakhand within stipulated time of two years. Therefore, in absence of any adaptation order of Govt. of Uttarakhand, the provisions of the Act cannot be permitted to invoke after completion of stipulated period from cut off date i.e. 09.11.2000. 12. On the other hand, learned Addl. of Uttarakhand within stipulated time of two years. Therefore, in absence of any adaptation order of Govt. of Uttarakhand, the provisions of the Act cannot be permitted to invoke after completion of stipulated period from cut off date i.e. 09.11.2000. 12. On the other hand, learned Addl. Advocate General appearing for the State contended that since the petitioners have encroached upon the valuable land of the Government, the orders under the Act have rightly been passed. He contended that in view of provisions provided under U.P. Reorganization Act, 2000 itself, the preliminary objection raised by the petitioners is not sustainable. He contended that the State governed by rule of law, cannot remain without any enforceable law for any period of time. If a State or a Country is allowed to remain without any enforceable law for any point of time, it would create chaos in the administration of such a State or Country, therefore, the law existing prior to the creation of State or Country could continue to be in operation until or unless the competent Legislature legislate upon the subject. He contended that the U.P. Reorganization Act, 2000 itself provided for efficient administration of the successor State with respect to various aspects of administration. He contended that from perusal of the Act it is quite clear that ‘law’ includes the ‘law’ which was enforced immediately before the appointed day either in the whole or in any part of the existing State of Uttar Pradesh. Similarly Part-II of the Reorganization Act provided for the territorial boundaries of the newly created State. 13. He contended that a legal friction has been provided under Section 86 of U.P. Reorganization Act, 2000 for remedial measure in order to avoid chaos in the administration, whereby the territorial limitation imposed by Part II has been lifted under this Section for the purpose of enforcement of U.P. Imposition of Ceiling of Land Holding Act 1961 and any other laws which were enforced immediately before the appointed day in the territories of U.P. and the same would continue to remain in force in the territories of State of Uttarakhand, even if the State Govt. has neither avail its power granted under Section 87 by adopting the law enforced in the State of U.P. prior to appointed day within two years from that day nor the same has been repealed, altered or amended by any competent Legislature and the same would continue to be in force until the competent Legislature enacts and act in the field. He also contended that the aforesaid principle finds place under Article 372 of the Constitution of India. 14. I have considered the submission of learned counsel for the parties. 15. In case of creation of a new State under Article 3 of the Constitution of India either by way of bifurcation or by was of an absorption or merger, the Act by which such new State is created, it always makes the provisions either explicitly or by way of a legal fiction. In the case of bifurcation of State of U.P., by which a separate State of Uttarakhand came into existence, for the purpose of smooth functioning of the successor State, the Parliament vide the U.P. Reorganisation Act (Act No. 29 of 2000) provided for, as an interim measure, certain provisions till the competent Legislature takes over the legislative function. The U.P. Reorganisation Act, 2000 itself provided for efficient administration of the successor State with respect to various aspects of the administration. The Reorganisation Act had in its Part I provided for preliminaries. Under Part II it has been provided for territorial limits etc. Part III provided for a representation in Legislature and similarly in Part IV to X various other provisions were made in order to achieve the object of efficient administration of the successor State. In order to understand the issue in question it is very important to extract section 2 (f) of the provision of the Act as under:- “2(f) ‘law’ includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Uttar Pradesh”. 16. By bare perusal of the aforesaid provision, it is quite clear that the ‘law’ include the ‘law’ which was in force immediately before the appointed day either in the whole or in any part of the existing State of Uttar Pradesh. 16. By bare perusal of the aforesaid provision, it is quite clear that the ‘law’ include the ‘law’ which was in force immediately before the appointed day either in the whole or in any part of the existing State of Uttar Pradesh. Similarly, Part II of the Act provided for the territorial boundaries of the newly created State U/s. 3 of the Act. Section 4 provides for the boundaries of the State of Uttar Pradesh after bifurcation and Section 6 of the Part II empowers both the successor States to alter the boundaries, names, areas of any Districts or either territorial Division in the State. Similarly, after visualizing certain immediate and necessary circumstances for effecting efficient administration, the Legislature has provided some legal and miscellaneous provisions under Part X of the U.P. Reorganisation Act. The most relevant provisions with regard to the issue in question are Sections 86 to 88 of U.P. Reorganisation Act. These sections are reproduced below:- “Section 86 Territorial extent of laws- The provisions of Part II shall not be deemed to have affected any charge in the territories to which the Uttar Pradesh Imposition of Ceiling of Land Holding Act, 1961 and any other law in force immediately before the appointed day, extends or applies, and territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day.” “Section 87 Power of adapt laws- For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation- In this section, the expression “appropriate Government” means as respects any law relating to a mater enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.” “88. Explanation- In this section, the expression “appropriate Government” means as respects any law relating to a mater enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.” “88. Power to construe law- Notwithstanding that no provision or insufficient provision has been made under Section 87 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Uttar Pradesh or Uttaranchal, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the Court, tribunal or authority.” 17. In such circumstances, in order to avoid chaos in the administration, a legal fiction is created by providing the remedial measure under Section 86 of the Act. A bare reading under Section 86 would make it abundantly clear that the territorial limitation imposed by Part II of the Act has been lifted under this Section for the purpose of enforcement of U.P. Imposition of Ceiling of Land Holding Act 1961 and any other laws which were in force immediately before the appointed day in the territories of Uttar Pradesh and the same would continue to remain in force in the territories of Uttarakhand, if the State Government has neither availed its power granted under Section 87, by adopting the laws in force in Uttar Pradesh prior to appointed day, within two years from that day nor the same has been repealed, alter or amended by any competent Legislature and the same would continue to be in force until the competent Legislature enacts and act in the field. 18. Similarly, the aforesaid principle also find place under Article 372 of the Constitution of India. The Legislature has clearly provided that the laws made prior to the commencement of the Constitution of India would continue to remain in force even after the commencement of the Constitution despite the repeal made under Article 395, if exigency so demands. Similar, issues have been raised from time to time and were adjudicated by the various Courts and the matter was taken up to the Apex Court. Similar, issues have been raised from time to time and were adjudicated by the various Courts and the matter was taken up to the Apex Court. The Hon’ble Supreme Court had categorically held that in a case like the present one, wherein by an Act of Parliament, a new State is created under Article 3 of the Constitution of India. In such a situation, a sovereignity of a Country is not being affected by creating a new State. It is simply a case of territorial readjustment and creation of a new smaller administrative units demarcated by its boundaries. Therefore, in such circumstances, despite the provision for adoption, modification, amendment, as an interim measure for two years under Section 87 the existing laws of the earlier State would remain in operation until modified or amended by competent Legislature of a successor State. In case of State of Punjab Vs. Balbir Singh [ (1976)3 SCC 242 ], wherein the issue in question was a Government order dated 28th October, 1966, issued by Government of composite State of Punjab prior to its bifurcation into other States on 1st November, 1966 which was purported to be given effect to after the creation of the new State, the Hon’ble Apex Court considered the issue in question particularly the similar provision Clause (g) of Section 2 of Part II and Section 88 of the Punjab Reorgansation Act which are in pari materia similar to the provisions of Clause(f) of Section 2 of Part I and Section 86 of U.P. Reorganisation Act 2000. In para-12 of the judgment the Hon’ble Supreme Court has observed: “….in our judgment when there is no change of sovereignty and it is merely an issue of an adjustment of territories by the reorganization of a particular State, the administrative orders made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by the Governments of the successor State. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States.” 19. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States.” 19. Similarly, the issue in question was raised in another case, namely, Commissioner, Commercial Tax (CCT) Vs. Swarn Rekha Cokes & Coles (P) Ltd. [ (2004)6 SCC 689 ]. In this case, a notification dated 22.12.1985 issued by the Government of composite State of Bihar granting certain exemption of sales tax in purchase of raw material for the purpose of manufacturing the products by a Company within the State was in question, after the creation of the separate State of Jharkhand vide Bihar Reorganisation Act, 2000 and the Hon’ble Apex Court while considering the benefits of the same notification to the Industries in Jharkhand considered sections 84 and 85 of the Bihar Reorganisation Act, 2000 which were exactly similar to the sections 86 and 87 of the Uttar Pradesh Reorganisation Act, 2000 and while discussing the aforesaid provisions in detail, the Hon’ble Apex Court relying verbatim of the judgment of the Hon’ble Supreme Court in Balbir Singh’s Case have categorically held that the notification issued under the Bihar Finance Act, 1981 would continue to in operation in the State of Jharkhand even after the appointed day even if no action was taken U/s. 85 equivalent to section 87 of U.P. Reorganisation Act, 2000 and same would remain in operation until a competent Legislature legislate on the subject. Para-3 of the judgment is quoted below:- “30. We have carefully considered the decisions relied upon by Shri Rakesh Dwivedi in Rattan Lal and Co. v. The Assessing Authority, the State of Mysore v. P.B. Hussain Kunhi & Co. and CST v. Minerva Minerals and we find that none of those decisions in any manner advances the case of the State. The decisions in those cases depended on the interpretation of the provisions of the Acts concerned which were not at all similar to the provisions with which we are concerned in the instant appeals. In civil Appeal No. 2450 of 2003, the High Court of Patna on a similar ground has rejected the claim of the appellants. The decisions in those cases depended on the interpretation of the provisions of the Acts concerned which were not at all similar to the provisions with which we are concerned in the instant appeals. In civil Appeal No. 2450 of 2003, the High Court of Patna on a similar ground has rejected the claim of the appellants. It noticed the earlier decision of the High Court, but distinguished the same on the ground that in the case in hand, the Industrial Unit was situated in the State of Jharkhand while the benefit was being claimed in the State of Bihar. In view of our earlier findings, this would not be a relevant consideration for rejecting the writ petition. Moreover, if this principle were to be upheld, it would result in arbitrary results inasmuch as the entrepreneurs whose industrial units operate in the State of Bihar will get the benefit of exemption from payment of sales tax on purchase of raw materials in the State of Jharkhand, but their counter-parts in the State of Jharkhand would not be entitled to such benefit. We must not lose sight of the fact that an unforeseen event may give rise to unusual situations. Faced with such situations, the Legislature has to find appropriate methods and solutions to deal with them. When the State of Bihar announced its Industrial Policy in the year 1995, it could not foresee that the State will be divided five years later. But when the division of the state became a reality, Parliament had to make appropriate provisions to carry on the administration in the two States. If the laws in force were to lapse on the day the division was effected, a chaotic situation would have emerged inasmuch as the newly created State would be rendered a State without laws. It is, therefore, that provisions like Sections 84 and 85 of the Act are enacted to maintain continuity, and at the same time authorize the States to make such modifications and adaptations as are considered necessary by mere issuance of orders within two years, and thereafter by Legislation or exercise of power by the competent authority.” 20. In view of above discussion, the contention of learned counsel for the petitioners has no force. Same is rejected. It is held that U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 is still applicable in the State of Uttarakhand. 21. In view of above discussion, the contention of learned counsel for the petitioners has no force. Same is rejected. It is held that U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 is still applicable in the State of Uttarakhand. 21. Let the copy of this order be placed in the connected writ petitions. 22. All petitions are disconnected from the leading petition. Office is directed to list the petitions in due course. Interim orders passed in all the petitions shall continue to operate till next date of listing.