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2018 DIGILAW 833 (ALL)

SATPAL KHERA v. UNION OF INDIA

2018-04-06

RAM SURAT RAM (MAURYA)

body2018
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Ravi Kant, Senior Advocate, assisted by Sri Anupam Laloriya for the petitioners, Assistant Solicitor General of India, assisted by Sri Pramod Kumar Singh for Union of India and Sri Shashwat Kishore Chaturvedi for Cantonment Baord, Jhansi. 2. This writ petition has been filed against the orders of Prescribed Authority, dated 20.3.2009, directing for ejectment of the petitioners, from the building situated on Survey No. 177, Sadar Bazar, Jhansi Cantt., Jhansi and Additional District Judge, dated 23.12.2017, dismissing the appeal of the petitioners and consequent notice dated 20.1.2018, issued for their ejectment, in the proceeding under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Act). 3. Estate Officer, Jhansi Cantt. (respondent-2) (hereinafter referred to as the Prescribed Authority) issued notice dated 26.11.1974, for ejectment of Vijay Kumar Gupta under Section 4 of the Act, from the building situated on Survey No. 177, Sadar Bazar, Jhansi Cantt., Jhansi. Vijay Kumar Gupta failed to give any reply as such Prescribed Authority passed an ex parte order dated 4.3.1975, for ejectment. Vijay Kumar Gupta filed an appeal (registered as Misc. Civil Appeal No. 45 of 1975), which was allowed, by the order of District Judge dated 16.3.1979 and the matter was remanded to Prescribed Authority to give an opportunity of hearing and pass fresh order. After remand, Prescribed Authority, by order dated 21.1.1984, directed for ejectment. Vijay Kumar Gupta filed an appeal (registered as Misc. Civil Appeal No. 10 of 1984), which was allowed by the order of Additional District Judge dated 24.11.1985 and the matter was again remanded to Prescribed Authority. Prescribed Authority by order dated 7.2.1986, directed for ejectment. Vijay Kumar Gupta filed an appeal (registered as Misc. Civil Appeal No. 28 of 1986), which was dismissed, by the order of Special Judge (E.C.) Act, dated 21.5.1988. 4. Vijay Kumar Gupta filed a writ petition (registered as Civil Misc. Writ Petition No. 11480 of 1988), which was allowed, by order of this Court dated 8.3.2007 and the matter was again remanded to Prescribed Authority, to give an opportunity of hearing and pass a fresh order. After remand, Vijay Kumar Gupta filed his written statement on 4.6.2007, stating therein that disputed building was constructed by late Shri Ram Gupta, his father prior to 1901. Shri Ram Gupta died in 1962. After remand, Vijay Kumar Gupta filed his written statement on 4.6.2007, stating therein that disputed building was constructed by late Shri Ram Gupta, his father prior to 1901. Shri Ram Gupta died in 1962. On the basis of will dated 7.8.1960, executed by Shri Ram Gupta, disputed house was inherited by him. They were continuously in possession of the disputed house and paying its taxes to Cantonment Board, Jhansi. They were owner of the disputed land. The proceeding for ejectment is barred by limitation as on the date of notice, their possession was more than 75 years old. In any case, they matured their title by adverse possession and cannot be ejected in summary proceeding under the Act. In support of written statement, Vijay Kumar Gupta also filed his affidavit and rejoinder-affidavit. On behalf of Union of India, Colonel Nav Ratan Joshi filed his affidavit. On the application of Vijay Kumar Gupta, other occupants of the building were also impleaded in proceeding as opposite parties and notices were issued to them. 5. In the meantime, Vijay Kumar Gupta died on 25.6.2008 and his heirs were substituted. Prescribed Authority, after hearing the parties, by order dated 20.3.2009, held that the disputed land has been recorded in the name of Government of India in General Land Register, maintained by Defence Estate Officer. Thus, title of Union of India over the land in dispute, is proved. Heirs of Vijay Kumar Gupta have illegally occupied over 4,000 sq. feet of Survey Plot No. 177, although Vijay Kumar Gupta took the plea that the building was constructed in the year 1901, but no evidence has been adduced in this respect. In the absence of any evidence, the date of construction is to be taken as the first date of assessment of the building for the purposes of house tax, which is 1.4.1953. Proceeding for ejectment of Vijay Kumar Gupta was initiated through notice dated 26.11.1974, as such, it was well within limitation. No bona fide dispute relating to title was involved. On this finding, he directed for ejectment of heirs of Vijay Kumar Gupta. Heirs of Vijay Kumar Gupta filed an appeal (registered as Misc. Civil Appeal No. 28 of 2009) which was dismissed by order dated 23.12.2017. Thereafter, they challenged the aforesaid order in Writ - C No. 3519 of 2018, which was dismissed by order dated 25.1.2018. 6. On this finding, he directed for ejectment of heirs of Vijay Kumar Gupta. Heirs of Vijay Kumar Gupta filed an appeal (registered as Misc. Civil Appeal No. 28 of 2009) which was dismissed by order dated 23.12.2017. Thereafter, they challenged the aforesaid order in Writ - C No. 3519 of 2018, which was dismissed by order dated 25.1.2018. 6. According to the petitioners, a notice has been issued to the petitioners on 18.2.1958, under the provisions of U.P. Cantonment (Control of Rent and Eviction) Act 1952. However, no further proceeding was taken against them. Thereafter, when the appeal of Vijay Kumar Gupta was dismissed on 21.5.1998, then proceeding for ejectment was again started and in that connection, a fresh notice was given to the petitioners on 15.9.1994. As soon as the matter was remanded by this Court, the petitioners got themselves impleaded before the Prescribed Authority in the proceeding for ejectment under the Act. The petitioners contested the case and have stated that since they were in occupation of the premises in dispute prior to 1950, as such, the proceeding has become time barred and they were not liable to be ejected. However, the Prescribed Authority found that the petitioners have no independent title inasmuch as, they admitted that they were tenants of Vijay Kumar Gupta and Vijay Kumar Gupta has failed to prove that any construction was existing prior to 1953. Thus, the case of the petitioners that they were given tenancy prior to 1950, has been disbelieved. Since proceeding for ejectment has validly been initiated against Vijay Kumar Gupta (landlord of the petitioners), as such, the plea of petitioners that the proceeding has become time barred, has been rejected. Since, it has been held that Vijay Kumar Gupta has failed to prove his title over the premises in dispute, as such, Vijay Kumar Gupta, including the petitioners, were held to be unauthorized occupants and directed to be ejected from the premises in dispute, by consolidated order of Prescribed Authority dated 20.3.2009. 7. The petitioners challenged the order dated 20.3.2009, in Misc. Civil Appeal No. 31 of 2009. The appeal of the petitioners was consolidated with Misc. Civil Appeal No. 28 of 2009, filed by the heirs of Vijay Kumar Gupta and heard together. Appellate Court by the impugned judgment dated 23.12.2017 affirmed the finding of Prescribed Authority and dismissed the appeal. Hence, this writ petition has been filed. Civil Appeal No. 31 of 2009. The appeal of the petitioners was consolidated with Misc. Civil Appeal No. 28 of 2009, filed by the heirs of Vijay Kumar Gupta and heard together. Appellate Court by the impugned judgment dated 23.12.2017 affirmed the finding of Prescribed Authority and dismissed the appeal. Hence, this writ petition has been filed. 8. Counsel for the petitioners submitted that Director General, Defence Land and Cantonments, has issued a Circular dated 18.6.1985, for initiating proceeding for eviction of unauthorized occupants under the provisions of the Act within a period of 30 years from the date of illegal occupation. Otherwise also, Limitation Act 1963 provides 30 years limitation for the Government to eject the illegal occupants. In the present case, notice has been issued to the petitioners for the first time on 15.9.1994 and no proceeding under the Act was initiated within 30 years, as such, the petitioners have acquired title over the land in dispute, by way of adverse possession and their ejectment, adopting summary proceeding under the Act, was illegal. Total area of Survey Plot No. 177 is about 14,000 sq. feet, while proceeding for ejectment of Vijay Kumar Gupta was initiated in respect of 4,000 sq. feet only. Thus, there was absolutely no proceeding for ejectment in respect of the remaining area of 10,000 sq. feet of Survey Plot No. 177. Thus, in the proceeding for ejectment of Vijay Kumar Gupta, the petitioners were not liable to be ejected. The Prescribed Authority, as well as District Judge, both held that Vijay Kumar Gupta was not owner of the premises in dispute. On this finding, there could be no relationship of landlord and tenant between Vijay Kumar Gupta and the petitioners and the occupation of the petitioners over the part of land being independent, they were not liable to be ejected after 30 years. In any case, summary proceeding for ejectment was not liable to be followed, inasmuch as, the petitioners have acquired title by way of adverse possession, which is also proved from the notice dated 10.2.1958, issued to the petitioners, independently. 9. I have considered the arguments of counsel for the parties and examined the record. So far as notice dated 10.2.1958 is concerned, it was not filed either before the Prescribed Authority, or before the Appellate Court. 9. I have considered the arguments of counsel for the parties and examined the record. So far as notice dated 10.2.1958 is concerned, it was not filed either before the Prescribed Authority, or before the Appellate Court. Thus, authenticity of the notice is not accepted by the respondents, as such, no reliance can be placed on it. 10. So far as the petitioners are concerned, notice (filed as annexure 10 to the writ petition) has been given to them on 15.9.1994. On the notice itself, the petitioners have endorsed that they were tenants of Vijay Kumar Gupta, as such, they have not claimed any independent title, except their tenancy right through Vijay Kumar Gupta. Their plea denying the title of Vijay Kumar Gupta is barred under Section 116 of Evidence Act 1872 and they being tenants of Vijay Kumar Gupta, cannot set up their independent title. So far as Vijay Kumar Gupta is concerned, this Court by the judgment dated 25.1.2018, held that Vijay Kumar Gupta has failed to prove his title, inasmuch as, the disputed premises was recorded in General Land Register, maintained under Cantonment Land Administration Rules 1925 and the entry made in it, was made in discharge of statutory duties and presumption relating to its correctness was liable to be raised, as held by Supreme Court in Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294 . 11. So far as date of construction of the building is concerned, admittedly, there was no documentary evidence, either to show that the building was constructed in 1901, as pleaded by Vijay Kumar Gupta, or to show that it was ever in existence prior to the first assessment of house tax, i.e. 1.4.1953. In the absence of any documentary evidence, date of first assessment was taken as the date of construction of the building. From the date of first assessment, proceeding for eviction of Vijay Kumar Gupta was well within time. The petitioners in the notice dated 15.9.1994 made endorsement that they are tenants of Vijay Kumar Gupta. Thus, if proceeding against the landlord was within time, then there is no reason to hold that proceeding against the petitioners has become time barred. The plea raised in this respect is not liable to be accepted. 12. The petitioners in the notice dated 15.9.1994 made endorsement that they are tenants of Vijay Kumar Gupta. Thus, if proceeding against the landlord was within time, then there is no reason to hold that proceeding against the petitioners has become time barred. The plea raised in this respect is not liable to be accepted. 12. Counsel for the petitioners further argued that no notice has been issued to him which is a condition precedent for initiating proceeding for eviction under Section 4 of the Act. The petitioners themselves have filed notice issued to them as annexure-10 to the writ petition, as such, plea in this respect, is not liable to be accepted. Case laws relied upon by counsel for the petitioners in Chintapalli Agency Taluk Arrack Sales Cooperative Society Ltd. v. Secretary, (Food and Agriculture) Government of Andhra Pradesh and others, AIR 1977 SC 2313 ; Ramana Dayaram Shetty v. The International Airport Authority of India and others, AIR 1979 SC 1628 and B.S. Minhas v. Indian Statistical Institute and others, AIR 1984 SC 363 , have no application in the present case. 13. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.