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2017 DIGILAW 429 (UTT)

Arjun singh v. State

2017-08-02

SHARAD KUMAR SHARMA

body2017
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. A notice under Section 4 sub Section (1) has been issued to the petitioner based on the challaned report dated 13.06.2000. In the notice thus issued, it has been observed that the petitioner is an unauthorized occupation of the land, lying in khasra No. 297 having an area of 10 nali of a benap land. On this notice, the petitioner filed his reply and in the reply, he has submitted that the land in question for which notice under Section 4 has been issued is a land which adjoins the holding of the petitioner. 2. Learned counsel for the petitioner further submits that the petitioner has received the land by way of family partition and further he is in possession over the property for the last more than 5055 years and claims his right by virtue of adverse possession. 3. During the course of the proceedings before the Court below, the statement of PW1, PW2 and PW3 were recorded at the behest of the respondents and they invariably submitted that the length of the occupation of the petitioner and his continuance to occupy the land, but none of the statements thus recorded to supported the contention of the learned counsel for the petitioners that he is occupying the land in his own exclusive rights. 4. The matter traveled in an appeal at the behest of the petitioner and the appeal of the petitioner-which was registered as Civil Misc. Appeal No. 05 of 2003 also met with the same destiny and was dismissed on 16.04.2005 consequently, the writ petition. 5. The bone of contention of the learned counsel for the petitioner before this Court is that the occupation of the petitioner over the land in question is not unauthorized as defined under U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972, the reason which the petitioner conversed before this Court is that his occupation over the land was under the strength of the provisions contained under Section 4 of Kumaon Nayabad and Waste Lands Act, 1948, which granted permission to the tenure holder to 'extend' their holdings to the adjoining waste land and to use it for cultivation purpose. 6. 6. Learned counsel for the petitioner further submits that in view of the language used under Section 5 in an event, if a tenure holder take shelter of occupation of cultivatory possession of land which the petitioner utilizing under Section 4 of the Kumaon Nayabad and Waste Lands Act, 1948, then as per the petitioner, he possess the same right over the land as occupied by him under Section 4. 7. Learned counsel for the petitioner further submits that such type of land which is occupied and is a benap land, is protected by the Government Order dated 16.02.1981, which deals with the regularization of the occupation of the tenure holders on the unmeasured land in the hill areas. The term 'waste land', has neither been defined under the Act nor under the General Clauses Act. Hence the definition of waste land, has to be taken as to be a literal meaning which has been given in the dictionaries. In Black's Law Dictionary, the word 'waste land' is defined as a property which has been committed by a tenant and utilized for his own use. Meaning thereby, it is not a land which is reserved for any specified purpose by the State. 8. The Kumaon Nayabad and Waste Lands Act, 1948, when it incorporated Section 4 and 5 of the Act, it was with an intention that the land which was otherwise not use could put to use should not be wasted and that is why extension rights were granted under Section 4 of the said Act and when the legislature of the Kumaon Nayabad and Waste Lands Act, 1948 granted them a right of possession and a right of unmeasured land equivalent to the right of tenure holder ship then according to the learned counsel for the petitioner, this cannot be treated as to be unauthorized occupancy of a public land. Thus, he seeks injunction under the provisions of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 would not apply. 9. I find force in argument extended by the learned counsel for the petitioner because the term 'unauthorized' has been dealt with sub Section (g) of Section 2 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 which is quoted herein below: "2. Definitions. 9. I find force in argument extended by the learned counsel for the petitioner because the term 'unauthorized' has been dealt with sub Section (g) of Section 2 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 which is quoted herein below: "2. Definitions. (g) "unauthorized occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which or the capacity in which he was allowed to hold or occupy the premises has expired or has been determined for any reason whatsoever and also includes continuance in occupation in the circumstances specified in subsection (1) of Section 7 and a person shall not, merely by reason of fact that he had paid any amount as rent, be deemed to be in authorized occupation." 10. It provides that it has to be a continuous occupation by any person of public premises. Under him or in the capacity which he has allowed to hold or to occupy premise has expired or has been determined by any reason whatsoever under law. 11. Learned counsel for the petitioner has placed reliance of sub clause (2) of sub section (b) of Section 2 by drawing the attention of this Court the petitioner submits that a public premises would not included the land which a person is occupying or is being held by him in the capacity of being tenure holder under any law relating to land tenures. Since Kumaon Nayabad and Waste Lands Act, 1948 grants him a right to occupy the land in the same capacity as that of being a tenure holder in relation to unmeasured land adjoining to his holding. He submits that on a conjoint reading of sub Section (g) sub Section (2) read with sub clause (2) of sub Section (b) of Section 2 of the Act cannot be taken as to be an unauthorized occupant. 12. He submits that on a conjoint reading of sub Section (g) sub Section (2) read with sub clause (2) of sub Section (b) of Section 2 of the Act cannot be taken as to be an unauthorized occupant. 12. This reason, further finds support from the provision of Kumaon Nayabad and Waste Lands Act, 1948 which in itself provides a procedure that in case if a person occupies a land under the extension clause provided under Section 4, the statute has provided a recourse for eviction of such occupants who are in permissive possession under the Act itself. 13. Since the State and its agencies who have permitted the extension under the Kumaon Nayabad and Waste Lands Act, 1948 have a remedy against a permissive occupant under the Act itself, they cannot borrow the provisions of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 when the land which is being occupied, does not fall within the definition of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 as given there under. 14. It has been informed that the Kumaon Nayabad and Waste Lands Act, 1948 has been repelled in 1976 and since the contention of the learned counsel for the petitioner is that the petitioner has occupied the land under the provisions of an Act which was enforced at the relevant time, he will never be treated as an unauthorized occupant. 15. For the reasons recorded above, as the petitioner has been held out to be not an unauthorized occupant, this writ petition is allowed. The impugned orders are quashed.