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2017 DIGILAW 428 (UTT)

Manveer Singh v. District Judge, Tehri Garhwal

2017-08-02

SHARAD KUMAR SHARMA

body2017
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The petitioner is occupying a public premises constituting of khata no. 120 khet no. 1527 having an area of 0.006 hectare of a non Z.A. land. A notice under Section 4 (2) of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 was issued to the petitioner on 08.02.2005. This notice specifically mentions that it has been issued after the compliance of the provisions contained under sub Section (2) of Section 4 i.e. giving of 10 days' prior notice to vacate. 2. After issuance of notice, it seems that the petitioner still continued with the construction over the land in question. That is why the necessity arose for respondents to issue yet another notice on 09.02.2005. By this notice, the Prescribed Authority has only requested the petitioner not to continue with the construction over the land in question. A response was submitted to this notice and ultimately matter traveled to the prescribed authority. 3. Before I deal with the propriety of the judgment and issues raised by the learned counsel for the petitioner at this stage, there are certain relevant factors which are required to be placed and to be constituted as part of the judgment so that it may carry a precedent for other litigants. 4. Once the counsel for the petitioner was filing writ petition raising an issue of public premises, in all fairness, it was expected that he should have made the notice on 08.02.2005 as part of the record of the writ petition which is the basis of proceedings, instead he filed the notice dated 09.02.2005 which was only for stopping of the construction issued subsequently. 5. Today, when the arguments proceeded, learned counsel for the petitioner started his arguments from the view point that the notice was defective as it was not complying with the conditions provided under sub Section (2) of Section 4 of 10 days' notice. 6. Initially, this Court was satisfied with the arguments extended by the learned counsel for the petitioner. But thereafter, it was pointed out by Mr. Pankaj Purohit, learned Standing Counsel for the State that the initial notice issued to the petitioner under Section 4(2) has been annexed as annexure No. 3 to the supplementary affidavit which was served upon the petitioner on 17.02.2005. But thereafter, it was pointed out by Mr. Pankaj Purohit, learned Standing Counsel for the State that the initial notice issued to the petitioner under Section 4(2) has been annexed as annexure No. 3 to the supplementary affidavit which was served upon the petitioner on 17.02.2005. The petitioner must be knowing well as to why this notice of 08.02.2005 was not made as a part of the writ petition which is the basis of case and then proceeding to argue that it was not in consonance of Section 4. This means that the petitioner has not come up with clean hands before this Court. Just to send signals to the litigants to be fair to the Court, I impose a cost of Rs. 1,000/- on this score itself to be deposited by the petitioner in Advocates Welfare Fund. 7. This court, now addresses to the arguments extended by the learned counsel for the petitioner with regards to the propriety of the orders impugned. His submission is that the land for which the notice has been issued, since was a land which he has received on exchange from Mussa, a lessee, hence he cannot be treated as to be an unauthorized occupant of the land. The lease as executed in favour of Mussa is not on record. Hence, it could not be said that whether on the basis of lease executed in favour of the Mussa, what was its judicious propriety and whether at all that the lease was conferring the right on Mussa to exchange the land to the petitioner? Even if the exchange is permissible, what were the pre conditions provided for affecting the exchange of the land leased to Mussa? 8. For supporting the assertion of exchange, learned counsel for the petitioner placed reliance on an affidavit annexed as annexure no. 2 to the supplementary affidavit, saying that there was an understanding/agreement between the Mussa and the petitioner for exchange of the land. This Court feels that such types of affidavits, which are notarized and which are not registered, are not acceptable in evidence and it cannot be read for the purpose of petitioner to support his case and that too in relation to immovable property that he is not an unauthorized occupant. Hence this argument of the learned counsel for the petitioner is not acceptable to this Court. 9. Hence this argument of the learned counsel for the petitioner is not acceptable to this Court. 9. Learned counsel for the petitioner submitted that since he has taken this land by way of an exchange, he has an indefeasible right over it. In support thereof, learned counsel for the petitioner placed the Govt. Orders dated 09.03.2005 and 19.10.1995. On perusal of these Govt. Orders, they were for the purposes to provide a rehabilitation of settlement to the oppressed class by extension of benefit under Section 122B 4F of U.P.Z.A. & L.R. Act. The exchange on which the reliance is placed under the garb of G.O. dated 19.10.1995, will not be available to the petitioner because on exchange from an oppressed classes of society to a superior classes is not mandated in the leases granted to them as it would defeat the purpose of lease. This Court also feels that in such type of leases, normally the right of exchange or transfer is prohibited and if it is permitted under certain conditions, then there are certain procedures to be followed. It is not a case of the petitioner as to what was the condition and whether the exchange or pre condition of exchange has been followed or not? Hence the petitioner cannot derive the benefit from exchange which itself was contrary to law. 10. Learned counsel for the petitioner, in support of his contention has placed reliance on judgment reported in Express Newspapers Pvt. Ltd. and others Vs. Union of India reported in AIR 1986 SC 872 in its para 87 has held as under : "87. The Express Buildings constructed by Express Newspapers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on plots nos. 9 and 10, Bahadur shah Zafar Marg demised on perpetual lease by registered lease deed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under Section 2(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under Sub section (2) thereof by summary process. That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under Section 2(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under Sub section (2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India, Ministry of Works & Housing for the enforcement of the alleged right of reentry, if any upon forfeiture of lease due to breach of the terms of the lease." 11. Learned counsel for the petitioner has drawn the attention of this Court from the view point that if a construction is being carried on the building which has been leased out, then it will not be fall within the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972. 12. This Court is an absolute disagreement with the learned counsel for the petitioner. The reason being that the analogy given therein was under the facts and circumstances of the case where the lessor was the Union of India and the construction was being carried by the Express Newspaper Pvt. Limited with the prior consent of the lessor i.e. Union of India. In the circumstances, which has been dealt with by the judgment of the Hon'ble Supreme Court, would have been a situation available to Mussa, had he taken permission from his lessor for doing a particular act. But this is not available to the petitioner, who claims his right to have occupied the land by way of exchange from Mussa, who was the principal lessee. 13. Another judgment which the learned counsel for the petitioner has placed reliance as reported in ARC 1997 (1) 394 in the case of Lakshmi Kackker Vs. State of U.P. and others. In this case in its para 6 and 7 dealing with the circumstances where a lessee has raised a construction without permission and in excess of the sanctioned plan and his lease was cancelled without an opportunity of hearing. State of U.P. and others. In this case in its para 6 and 7 dealing with the circumstances where a lessee has raised a construction without permission and in excess of the sanctioned plan and his lease was cancelled without an opportunity of hearing. Thus, the court held that such a cancellation being derogative to principles of natural justice and since the construction over the land has been made, was a land which was leased out and the cancellation of lease has followed because unauthorized construction is being raised the permission cannot be taken as it to be a public premises. 14. Yet again, this case was dealing with altogether a different contingency where a lessee has raised a construction de horse to the plan and consequent to construction being de horse, sanction a lease was cancelled without an opportunity. Here it is not the case of the petitioner that he is a lessee who has raised construction and the lease has been cancelled. Hence this judgment too, is of no avail to the petitioner hence is not acceptable. 15. Learned counsel for the petitioner since his claim over the property was confined to the exchange having been effected upon from Mussa, which itself has been held to be illegal. As observed above, the petitioner has no right to remain in occupation of a public land which was leased to Mussa as he being a class superior to Mussa, the principal lessee, I find there no merits in the writ petition and the same is dismissed. 16. Under Section 7 read with Form G of the Act, it specified procedure is provided that as to how damage is to be levied to the unauthorized occupants as to be made after complying with the conditions given under Section 7 of the Act. The case of the petitioner in the petition after the judgment has been rendered. Now it is confined to the manner in which the computation of damages has been made @ Rs. 2000/ per annum from the date of his possession. The case of the petitioner in the petition after the judgment has been rendered. Now it is confined to the manner in which the computation of damages has been made @ Rs. 2000/ per annum from the date of his possession. Apparently from the order, it seems that there is no criteria of calculation, which has been adopted in consonance of the Section 7 Form G. Hence that part of the judgment levying the damages without complying of Section 7, is set aside as it is contrary to under Section 7 of the Act and the matter is remitted back to the prescribed authority to recalculate the damages strictly in the terms of Section 7 read with Form 4 G and after assessing the amount, the same can be communicated to the petitioner who would deposit the amount of damages thereafter. 17. Thus, the writ petition fails so far it relates to the notice of eviction under Section 4, the petitioner is directed to vacate the premise and hand over it to the prescribed authority within two months from today, failing which it will be open for respondents to take possession by use of force. 18. The writ petition is partly allowed so far it relates to the manner in which the calculation of damages has been made for which issue is remitted back to the Prescribed Authority to decide afresh. The eviction from premises the writ petition is dismissed.